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United Kingdom insolvency law regulates companies in the United Kingdom which are unable to repay their debts. While UK bankruptcy law concerns the rules for natural persons, the term insolvency is generally used for companies formed under the Companies Act 2006. "Insolvency" means being unable to pay debts.〔Insolvency Act 1986 s 122(1)(f)〕 Since the Cork Report of 1982,〔''Report of the Review Committee on Insolvency Law and Practice'' (1982) Cmnd 8558〕 the modern policy of UK insolvency law has been to attempt to rescue a company that is in difficulty, to minimise losses and fairly distribute the burdens between the community, employees, creditors and other stakeholders that result from enterprise failure. If a company cannot be saved it is "liquidated", so that the assets are sold off to repay creditors according to their priority. The main sources of law include the Insolvency Act 1986, the Insolvency Rules 1986, the Company Director Disqualification Act 1986, the Employment Rights Act 1996 Part XII, the Insolvency Regulation (EC) 1346/2000 and case law. Numerous other Acts, statutory instruments and cases relating to labour, banking, property and conflicts of laws also shape the subject. UK law grants the greatest protection to banks or other parties that contract for a security interest. If a security is "fixed" over a particular asset, this gives priority in being paid over other creditors, including employees and most small businesses that have traded with the insolvent company. A "floating charge", which is not permitted in many countries and remains controversial in the UK, can sweep up all future assets, but the holder is subordinated in statute to a limited sum of employees' wage and pension claims, and around 20 per cent for other unsecured creditors. Security interests have to be publicly registered, on the theory that transparency will assist commercial creditors in understanding a company's financial position before they contract. However the law still allows "title retention clauses" and "''Quistclose'' trusts" which function just like security but do not have to be registered. Secured creditors generally dominate insolvency procedures, because a floating charge holder can select the administrator of its choice. In law, administrators are meant to prioritise rescuing a company, and owe a duty to all creditors.〔IA 1986 Sch B1, para 3〕 In practice, these duties are seldom found to be broken, and the most typical outcome is that an insolvent company's assets are sold as a going concern to a new buyer, which can often include the former management: but free from creditors' claims and potentially with many job losses. Other possible procedures include a "voluntary arrangement", if three quarters of creditors can voluntarily agree to give the company a debt haircut, receivership in a limited number of enterprise types, and liquidation where a company's assets are finally sold off. Enforcement rates by insolvency practitioners remain low, but in theory an administrator or liquidator can apply for transactions at an undervalue to be cancelled, or unfair preferences to some creditors be revoked. Directors can be sued for breach of duty, or disqualified, including negligently trading a company when it could not have avoided insolvency.〔CA 2006 ss 170-177, CDDA 1986 s 6 and IA 1986 s 212-214〕 Insolvency law's basic principles still remain significantly contested, and its rules show a compromise of conflicting views. ==History== The history of corporate insolvency law in the UK only began with the first modern companies legislation in 1844. However, many principles of insolvency are rooted in bankruptcy laws that trace back to ancient times. Regulation of bankruptcy was a necessary part of every legal system, and is found in the Hammurabi Code (2250 BC), the Twelve Tables of the Roman Republic (450 BC), the Talmud (200 AD), and the ''Corpus Juris Civilis'' (534 AD).〔See Codex Hammurabi §§115-118; Talmud, Kethuboth, x. 4, 93a.; ''Corpus Juris Civilis'', Institutes, Book ii, I 9, I.〕 Ancient laws used a variety of methods for distributing losses among creditors, and satisfaction of debts usually came from a debtor's own body. A debtor might be imprisoned, enslaved or killed or all three. In England, the Bankruptcy Act 1542 introduced the modern principle of ''pari passu'' (i.e. proportional) distribution of losses among creditors. However, the 1542 Act still reflected the ancient notion that people who could not pay their debts were criminals, and required debtors to be imprisoned.〔See generally, I Treiman, 'Escaping the Creditor in the Middle Ages' (1927) 43 ''Law Quarterly Review'' 230, 233〕 The Fraudulent Conveyances Act 1571 ensured that any transactions by the debtor with "intent to delay, hinder or defraud creditors and others of their just and lawful actions" would be "clearly and utterly void". The view of bankrupts as subject to the total will of creditors, well represented by Shylock demanding his "pound of flesh" in Shakespeare's ''Merchant of Venice'', began to wane around the 17th century. In the Bankruptcy Act 1705,〔3 Anne, c.17, passed in fact on 19 March 1706〕 the Lord Chancellor was given power to discharge bankrupts from having to repay all debts, once disclosure of all assets and various procedures had been fulfilled. Nevertheless, debtors' prison was a common end. Prisoners were frequently required to pay fees to the prison guards, making them further indebted, they could be bound in manacles and chains, and the sanitary conditions were foul. An early 18th century scandal broke after the friend of a Tory MP died in debt prison, and in February 1729 a Gaols Committee reported on the pestilent conditions. Nevertheless, the basic legislative scheme and moral sentiment remained the same. In 1769, William Blackstone's ''Commentaries on the Laws of England'' remarked it was not justifiable for any person other than a trader to "encumber himself with debts of any considerable value."〔(1769) vol II no 5, 473〕 And at the end of the century, Lord Kenyon in ''Fowler v Padget'' reasserted the old sentiment that, "Bankruptcy is considered a crime and a bankrupt in the old laws is called an offender."〔(1798) 101 ER 1103; 7 Term Rep 509〕〔(【引用サイトリンク】url=http://www.euritio.com/#Restschuldenbefreiung )〕 Since the South Sea Company and stock market disaster in 1720, limited liability corporations had been formally prohibited by law. This meant people who traded for a living ran severe risks to their life and health if their business turned bad, and they could not repay their debts. However, with the industrial revolution the view that companies were inefficient and dangerous,〔eg A Smith, ''The Wealth of Nations'' (1776) (Book V, Ch 1, para.107 )〕 was changing. Corporations became more and more common as ventures for building canals, water companies, and railways. The incorporators needed, however, to petition Parliament for a Local Act. In practice the privilege of investor to limit their liability upon insolvency was not accessible to the general business public. Moreover, the astonishing depravity of conditions in debtors prison made insolvency law reform one of the most intensively debated issues on the 19th century legislative agenda. Nearly 100 Bills were introduced to Parliament between 1831 and 1914.〔M Lester, Victorian Insolvency (Clarendon 1995)〕 The long reform process began with the Insolvent Debtors (England) Act 1813. This established a specialist Court for the Relief of Insolvent Debtors. If their assets did not exceed £20, they might secure release from prison. For people who traded for a living, the Bankrupts (England) Act 1825 allowed the indebted to bring proceedings to have their debts discharged, without permission from the creditors. The Gaols Act 1823 sent priests sent in, and put the debtor prison jailors on the state's payroll, so they did not claim fees from inmates. Under the Prisons Act 1835 five inspectors of prisons were employed. The Insolvent Debtors Act 1842 allowed non-traders to begin bankruptcy proceedings for relief from debts. However, conditions remained an object of social disapprobation. The novelist Charles Dickens, whose own father had been imprisoned at Marshalsea while he was a child, pilloried the complexity and injustice through his books, especially ''David Copperfield'' (1850), ''Hard Times'' (1854) and ''Little Dorrit'' (1857). Around this very time reform began. The difficulties for individuals to be discharged from debt in bankruptcy proceedings and the awfulness of debtors prison made the introduction of modern companies legislation, and general availability of limited liability, all the more urgent. The first step was the Joint Stock Companies Act 1844, which allowed companies to be created through registration rather than a Royal Charter. It was accompanied by the Joint Stock Companies Winding-Up Act 1844, which envisaged a separate procedure to bring a company to an end and liquidate the assets. Companies had legal personality separate from its incorporators, but only with the Limited Liability Act 1855 would a company's investors be generally protected from extra debts upon a company's insolvency. The 1855 Act limited investors' liability to the amount they had invested, so if someone bought shares in a company that ran up massive debts in insolvency, the shareholder could not be asked for more than he had already paid in. Thus, the risk of debtors' prison was reduced. Soon after, reforms were made for all indebted people. The Bankruptcy Act 1861 was passed allowing all people, not just traders, to file for bankruptcy. The Debtors Act 1869 finally abolished imprisonment for debt altogether. So the legislative scheme of this period came to roughly resemble the modern law. While the general principle remained ''pari passu'' among the insolvent company's creditors, the claims of liquidators expenses and wages of workers were given statutory priority over other unsecured creditors.〔The Joint Stock Companies Act 1856 s 104 and then the Companies Act 1862 ss 44, 110, extended liquidators’ priority to all insolvency procedures. The Bankruptcy Act 1869 s 32 gave priority for wages, as well as taxes.〕 However, any creditor who had contracted for a security interest would be first in the priority queue. Completion of insolvency protection followed UK company law's leading case, ''Salomon v A Salomon & Co Ltd''.〔() AC 22〕 Here a Whitechapel bootmaker had incorporated his business, but because of economic struggles, he had been forced into insolvency. The Companies Act 1862 required a minimum of seven shareholders, so he had registered his wife and children as nominal shareholders, even though they played little or no part in the business. The liquidator of Mr Salomon's company sued him to personally pay the outstanding debts of his company, arguing that he should lose the protection of limited liability given that the other shareholders were not genuine investors. Salomon's creditors were particularly aggrieved because Salomon himself had taken a floating charge, over all the company's present and future assets, and so his claims for debt against the company had ranked in priority to theirs. The House of Lords held that, even though the company was a one-man venture in substance, anybody who duly registered would have the protection of the Companies Acts in the event of insolvency. ''Salomon's case'' effectively completed the process 19th century reforms because any person, even the smallest business, could have protection from destitution following business insolvency. Over the 20th century, reform efforts focused on three main issues. The first concerned setting a fair system of priority among claims of different creditors. This primarily centred upon the ability of powerful contractual creditors, particularly banks, to agree to take a security interest over a company's property, leaving unsecured creditors without any remaining assets to satisfy their claims. Immediately after ''Salomon's case'' and the controversy created over the use of floating charges, the Preferential Payments in Bankruptcy Amendment Act 1897 mandated that preferential creditors (employees, liquidator expenses and taxes at the time) also had priority over the holder of a floating charge (now IA 1986 section 175). In the Enterprise Act 2002 a further major change was to create a ring-fenced fund for all unsecured creditors out of around 20 per cent of the assets subject to a floating charge.〔See IA 1986 s 176A and Insolvency Act 1986 (Prescribed Part) Order 2003 (SI 2003/2097)〕 At the same time, the priority for taxpayers' claims was abolished. Since then, debate for further reform has shifted to whether the floating charge should be abolished altogether and whether a ring-fenced fund should be taken from fixed security interests.〔See R Goode, ‘The Case for the Abolition of the Floating Charge’ in J Getzler and J Payne, Company Charges: Spectrum and Beyond (OUP 2006) and LA Bebchuk and JM Fried, ‘The Uneasy Case for the Priority of Secured Claims in Bankruptcy’ (1996) 105 Yale Law Journal 857–934. A proposal for a ring fenced fund of fixed security was made in Germany by the Kommission Für Insolvenzrecht, ''Erster Bericht der Kommission für Insolvenzrecht'' (1985)〕 The second major area for reform was to facilitate the rescue of businesses that could still be viable. Following the ''Cork Report'' in 1982,〔Kenneth Cork, Report of the Review Committee on Insolvency Law and Practice (1982) Cmnd 8558〕 the Insolvency Act 1986 created the administration procedure, requiring (on paper) that the managers of insolvent businesses would attempt rescue the company, and would act in all creditors' interests. After the Enterprise Act 2002 this almost wholly replaced the receivership rules by which secured creditors, with a floating charge over all assets, could run an insolvent company without regard to the claims of unsecured creditors. The third area of reform concerned accountability for people who worsened or benefited from insolvencies. As recommended by the ''Cork Report'', the Company Directors' Disqualification Act 1986 meant directors who breached company law duties, or committed fraud could be prevented from working as directors for up to 15 years. The Insolvency Act 1986 section 214 created liability for wrongful trading. If directors failed to start the insolvency procedures when they ought to have known insolvency was inevitable, they would have to pay for the additional debts run up through prolonged trading. Furthermore, the provisions on fraudulent conveyances were extended, so that any transaction at an undervalue or other preference (without any bad intent) could be avoided, and unwound by an insolvent company. The financial crisis of 2007, which resulted from insufficient consumer financial protection in the US, conflicts of interest in the credit rating agency industry, and defective transparency requirements in derivatives markets,〔See JC Coffee, ‘What went wrong? An initial inquiry into the causes of the 2008 financial crisis’ (2009) 9(1) Journal of Corporate Law Studies 1〕 triggered a massive rise in corporate insolvencies. Contemporary debate, particularly in the banking sector, has shifted to prevention of insolvencies, by scrutinising excessive pay, conflicts of interest among financial services institutions, capital adequacy, and the causes of excessive risk taking. The Banking Act 2009 created a special insolvency regime for banks, called the special resolution regime, envisaging that banks will be taken over by the government in extreme circumstances. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「United Kingdom insolvency law」の詳細全文を読む スポンサード リンク
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