Izvorni znanstveni članak
Injuring Creditors and Marital Property in the New Constitutional Court Analysis
Hano Ernst
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
In this paper, the author develops the issue of the relationship between the rules governing creditor protection, the protection of bona fide purchasers and marital property in the context of recent decisions of the Croatian Constitutional and Supreme Courts, by following further developments and transformed views. On the one hand, the paper discusses the influence of the source of funds for purchasing real property as marital property, when such funds are obtained via credit, since the novel view seems to diverge from the previous one, when the fact that the debt was paid off by earnings was crucial for the application of marital property provisions. The author takes a critical look at the new views as they stand at odds with the existing logic of the family law regulation of proprietary relations between spouses, and also because they might be detrimental to the creditors of the other spouse. The latter is particularly topical in the context of decisions regarding attempts to attack a nuptial agreement as fraudulent conveyance. On the other hand, the paper discusses the application of the rules on bona fide purchasers to creditors whose mortgage was acquired via dispositions of a single spouse. In a case currently deliberated by the Constitutional Court, a prominent problem is the issue of appropriate substantive law, due to the changes to the Ownership and Other Real Rights Act, as well as the question of validity of agreements pertaining to disposition of property entered into by one spouse without the consent of the other. The author concludes that the Constitutional court still accepts such contracts as void, even though it may seem to diverge from its previous holding, now invoking the protection of legitimate expectations (as opposed to acquired rights) and potential fraud by the other spouse as grounds for nullity. It is also stressed that there are broader effects of the holding regarding legitimate expectations on the system of enforcement law where, at least until now, the protection of third-party claimants was guaranteed regardless of the bona fide status of the seizing creditor, but which has now been brought into question even outside the context of marital property. All of the mentioned decisions are tied to the legal position of a creditor doing business with spouses, and make his position relatively insecure, partially due to the fact that the statutory regime for marital property requires an inquiry into the source of funds, and partially due to the unbalanced and still unclear views of the high courts regarding the influence of the source of funds on the proprietary status of land.
Ključne riječi
marital property; nuptial agreement; protection of bona fide purchaser; actio Pauliana; enforcement
Hrčak ID:
100037
URI
Datum izdavanja:
28.12.2012.
Posjeta: 3.694 *