CONCERNING THE DRAFT BANKRUPTCY LAW:SHOULD MERGERS BE PREVENTEDON THE “THRESHOLD OF BANKRUPTCY”

Abstract

In modern democracies, entrepreneurial and market freedom, i.e. the market, the market economy, are considered the foundation of the economic structure, but also as a human right and a fundamental freedom that enjoys constitutional protection. Yet empirical analysis as well as doctrine confirm that there is no economic system, not even a market, which is not in one way or another, more or less regulated. They also point out that market conditions significantly affect the realization and development of entrepreneurship. Therefore, it is not a real question whether the role of the state in regulating entrepreneurship is necessary. The real question is when, where and how in the legal-economic sphere the state should direct and regulate entrepreneurial movements and development and when its direct engagement is needed. Starting from the thesis that the state cannot be completely based on the principle of laissez-faire, because the legislator must be able to correct the undesirable effects of the market economy mechanism, we ask the question - Should the merger of a company with a bankruptcy reason or if bankruptcy proceedings have been initiated be prevented? The intention is to use to point out the systemic gap that poses a risk, regardless of the existing and largely high-quality mechanisms that exist to prevent abuse.