(general rule)
(1) The initiation of bankruptcy proceedings shall be decided by the court on the petition of an entitled petitioner of the proceedings.
(2) The court shall decide ex officio on the initiation of bankruptcy proceedings only if so provided for by law in respect of a particular case.
Article 231
(entitled petitioner) A petition in bankruptcy shall be presented by:
1. the debtor,
2. personally liable shareholder of the debtor, 3. a creditor who demonstrates the probability of:
– his claim against the debtor who is the subject of his petition in bankruptcy and – the circumstances of the debtor's delay of more than two months in payment of such claim,
4. Public Guarantee and Maintenance Fund of the Republic of Slovenia, which demonstrates the probability of:
– a claim of employees against the debtor who is the subject of the petition in bankruptcy and
– the circumstances of the debtor's delay of more than two months in payment of such claim.
Article 232
(a petition in bankruptcy) (1) A petition in bankruptcy shall contain:
1. identification data on the debtor,
2. a description of facts and circumstances indicating that the debtor became insolvent, and related evidence,
3. a claim for the court to initiate bankruptcy proceedings against the debtor.
(2) A petition in bankruptcy shall be attached by:
1. any eventual documentary evidence on the debtor’s insolvency and
2. evidence on the duty paid for a resolution on the initiation of bankruptcy proceedings and an advance payment to cover the initial costs of bankruptcy proceedings.
(3) The petition in bankruptcy presented by the debtor (hereinafter referred to as:
debtor’s petition in bankruptcy) shall not be subject to point 2 of the first paragraph, and point 1 of the second paragraph of this Article.
(4) The petition in bankruptcy presented by the creditor (hereinafter referred to as:
creditor’s petition in bankruptcy) shall contain also a description of the facts and circumstances demonstrating the probability of having a claim against the debtor, and that the debtor’s payment of such claim is more than two months in arrears.
(5) The creditor shall attach the petition in bankruptcy by any eventual documentary evidence on his claim and the delay in payment.
(6) The petition in bankruptcy may be withdrawn until a resolution on the initiation of bankruptcy proceedings is issued.
Article 233
(advance to cover initial costs of bankruptcy proceedings)
(1) When a petitioner files petition in bankruptcy, he is obliged to deposit an amount to cover the initial costs of bankruptcy proceedings, which amounts to:
1. a lump-sum compensation for publications referred to in the fifth paragraph of Article 122 of this Act,
2. a minimum compensation to the administrator referred to in point 1 of the fourth paragraph of Article 103 of this Act, and
3. a lump-sum compensation for covering other costs of bankruptcy proceedings which terminate without a distribution of assets to creditors as determined by a regulation referred to in point 3 of Article 114 of this Act.
(2) If bankruptcy proceeding are opened by a petition of a creditor, and the amount of the realised bankruptcy estate exceeds the amount of costs referred to in the first paragraph of this Article, the creditor shall have the right to refund of the deposited amount under the rules governing the payment of costs of bankruptcy proceedings.
Article 234
(procedure with a debtor’s petition in bankruptcy)
(1) If bankruptcy proceedings are opened by a petition of a debtor, it shall be considered, unless proven otherwise, that the debtor is insolvent.
(2) The first paragraph of this Article shall apply mutatis mutandis also to a petition in bankruptcy presented by a personally liable shareholder of the debtor.
(3) The presumption of insolvency referred to in the first paragraph of this Article may be challenged only by a partner of the debtor or the debtor if the petition in bankruptcy has been presented by his personally liable shareholder.
(4) The debtor’s partner or the debtor, if the petition in bankruptcy has been presented by his personally liable shareholder, may challenge the presumption of insolvency referred to in the first paragraph of this Article by an appeal against the resolution on the initiation of bankruptcy proceedings, which shall be attached by evidence on the debtor’s solvency.
Article 235
(procedure with a creditor’s petition in bankruptcy)
(1) The court shall, within three working days following the receipt, serve on the debtor the creditor’s petition in bankruptcy and warn him of the legal consequences referred to in the third paragraph of this Article.
(2) The debtor may, within fifteen days following the receipt of the creditor’s petition in bankruptcy, raise an objection asserting that he is not insolvent or that the creditor’s claim does not exist.
(3) Upon the debtor’s declaration to agree with the creditor’s petition in bankruptcy, or if he does not, within fifteen days following the receipt, enter either an objection referred to in the second paragraph of this Article or a request as referred to in the first paragraph of Article 236 of this Act, it shall be considered, unless proven otherwise, that the debtor is insolvent.
(4) Challenging the presumption of insolvency referred to in the third paragraph of this Article shall, mutatis mutandis, be subject to the third and fourth paragraphs of Article 234 of this Act.
Article 236
(request to suspend a decision on the creditor’s petition in bankruptcy) (1) The debtor may, within the time limit referred to in the second paragraph of Article 235 of this Act, require the court to suspend decision on the creditor's petition in bankruptcy, as he will eliminate his insolvency by the execution of financial restructuring (hereinafter referred to as: request to suspend a decision on the creditor’s petition in bankruptcy).
(2) The debtor shall attach to the request to suspend a decision on the creditor’s petition in bankruptcy:
1. a report on financial restructuring measures, containing an unqualified opinion of the management as referred to in point 4 of the third paragraph of Article 35 of this Act, and
2. in the case referred to in the first paragraph of Article 36 of this Act, also evidence of a call for a general meeting, pursuant to the third paragraph of Article 36 of this Act.
(3) If the request to suspend a decision on the creditor’s petition in bankruptcy is not attached by the documents referred to in the second paragraph of this Article, the court shall, within three working days following the receipt of the request, order the debtor with a resolution to present such documents within three working days following the receipt of the resolution on supplementation.
(4) The time limit referred to in the third paragraph of this Article shall not be extended.
(5) If the debtor does not comply with the resolution on supplement of the request within the time limit referred to in the third paragraph of this Article, it shall be considered, and evidence to the contrary is not be admissible, that the debtor is insolvent.
Article 237
(suspension of a decision on the creditor’s petition in bankruptcy)
(1) The court shall issue a resolution on the suspension of a deciding on the creditor's petition in bankruptcy debtor (hereinafter referred to as: resolution on the suspension of a decision on the creditor’s petition in bankruptcy) for two months if:
1. the request to suspend a decision on the creditor’s petition in bankruptcy has been lodged within the time limit referred to in the first paragraph of Article 236 of this Act, and
2. it is attached by the documents referred to in the second paragraph of this Article, indicating that the management of the debtor:
– has received the report on financial restructuring measures, containing an unqualified opinion of the management referred to in point 3 of the second paragraph, and point 4 of the third paragraph of Article 35 of this Act, and
– in the case referred to in the first paragraph of Article 36 of this Act: published a call for a general meeting pursuant to the third paragraph of Article 36 of this Act.
(2) The two-month suspension period referred to in the first paragraph of this Article shall start on the day following the expiry of the time limit for lodging the request for the suspension of a decision on the creditor’s petition in bankruptcy as referred to in the first paragraph of Article 236 of this Act.
(3) In the operative part of the resolution on suspension of deciding on the creditor’s petition in bankruptcy, the last day of the two-month suspension period referred to in the first paragraph of this Article shall be indicated.
(4) The court shall issue the resolution on the suspension of a decision on the creditor’s petition in bankruptcy within three working days.
(5) The time limit referred to in the fourth paragraph of this Article shall start:
1. if the court has issued a resolution supplementing the request referred to in the third paragraph of Article 236 of this Act: as of the receipt of the supplement to the request,
2. in other cases: as of the receipt of the request to suspend a decision on the creditor’s petition in bankruptcy.
(6) A suspension of a decision on the creditor’s petition in bankruptcy shall be without prejudice to the issue of an interim decision under Article 240 of this Act.
Article 238
(justification of a request to suspend a decision on the creditor’s petition in bankruptcy)
(1) The debtor shall, by the expiry of the two-month suspension period referred to in the first paragraph of Article 237 of this Act justify the suspension of a decision on the creditor’s petition in bankruptcy, so as to:
1. either present a petition for compulsory settlement 2. either submit evidence that:
– he has successfully carried out an increase in the share capital by new cash contributions, and
– he has ceased to be insolvent.
(2) If by the expiry of the two-month suspension period referred to in the first paragraph of Article 237 of this Act, the debtor does not act so as to comply with first paragraph of this Article, it shall be considered, and evidence to the contrary shall not be allowed, that the debtor is insolvent.
(3) If the debtor, by the expiry of the two-month suspension period referred to in the first paragraph of Article 237 of this Act, presents a petition for compulsory settlement, the court shall act in accordance with Article 152 of this Act.
(4) If the debtor, by the expiry of the two-month suspension period referred to in the first paragraph of Article 237 of this Act, submits evidence as per point 2 of the first paragraph of this Article, the court shall, within three working days following the receipt of such evidence, fix a hearing for the initiation of bankruptcy proceedings for a day which shall not be later than fifteen days following the receipt of such evidence.
Article 239
(deciding on the initiation of bankruptcy proceedings)
(1) The court shall issue a resolution on the initiation of bankruptcy proceedings out of the hearing and without taking evidence on whether the debtor is insolvent or whether the creditor had the capacity ad processum to present the petition:
1. if the initiation of bankruptcy proceedings is proposed by the debtor, and
2. in the case referred to in the eleventh paragraph of Article 40, the fifth paragraph of Article 152, the third paragraph of Article 235, the fifth paragraph of Article 236, or the second paragraph of Article 238 of this Act.
(2) If the debtor raises an objection as referred to in the second paragraph of Article 235 of this Act within fifteen days following the receipt of the creditor’s petition in bankruptcy, the court shall within three working days following the receipt of the objection fix the hearing for the initiation of bankruptcy proceedings for a day which shall not be later than one month following the receipt of the objection.
(3) At the hearing for the initiation of bankruptcy proceedings the court shall produce evidence on the creditor’s capacity ad processum to present the petition, and on the insolvency of the debtor, and decide on the creditor’s petition in bankruptcy on the basis of the results of the evidence-taking procedure.
(4) The debtor, members of his management and supervisory bodies, his partners and employees shall provide the court with all information and explanations, and submit documents which refer to the debtor and are significant in the light of assessing circumstances as referred to in the third paragraph of this Article.
(5) The obligation referred to in the fourth paragraph of this Article shall, mutatis mutandis, be subject to the act regulating civil procedure, on the duties of a witness, and on the legal consequences of the violation of such a duty.
Article 240
(interim decision against a debtor in bankruptcy)
(1) After introduction of bankruptcy proceedings, the court conducting the preliminary bankruptcy proceedings may, on a petition by the creditor who plausibly demonstrates a claim towards the debtor, issue an interim decision to secure monetary claims of all creditors against the debtor.
(2) The interim decision referred to in the first paragraph of this Article shall be subject to Articles 270 and 271 of ZIZ, unless otherwise provided for in this Article.
(3) With the aim of securing monetary claims referred to in the first paragraph of this Article, the court may issue any interim decision which may enable to achieve the purpose of securing, and in particular:
1. limit entitlements of the debtor, or his management, or holders of procuration to conclude contracts or execute other legal transactions,
2. order the provider of payment services who keeps the debtor's transaction account to execute the debtor’s payment orders to the debit of such account only with the consent of the court,
3. prohibit the debtor of disposing of or encumbering his immovable property or real rights registered to his benefit in immovable property, and order a note in the land register,
4. determine that the consent of the court represents an assumption of the validity of the legal transactions of the debtor which are a legal basis for disposing of the debtor’s assets.
(4) The interim order referred to in points 1 and 4 of the third paragraph of this Article shall be entered in the register.
Article 241
(time limit for deciding on the initiation of bankruptcy proceedings)
(1) The court shall issue a resolution on the initiation of bankruptcy proceedings within three working days.
(2) The time limit referred to in the first paragraph of this Article shall start:
1. if the petition in bankruptcy is presented by the debtor or his personally liable shareholder: as of the presentation of the petition in bankruptcy,
2. in the case referred to in the third paragraph of Article 235 of this Act: as of the expiry of the time limit for objection referred to in the second paragraph of Article 235 of this Act,
3. in the case referred to in the fifth paragraph of Article 236 of this Act: from the expiry of the time limit for supplementing the requirements referred to in the third paragraph of Article 236 of this Act,
4. in the case referred to in the second paragraph of Article 238 of this Act: from the expiry of the two-month suspension period referred to in the first paragraph of Article 237 of this Act,
5. in the case referred to in the fourth paragraph of Article 238 or the second paragraph of Article 239 of this Act: from the end of the hearings.
Article 242
(resolution on the initiation of bankruptcy proceedings)
(1) The operative part of the court’s resolution on the initiation of bankruptcy proceedings (hereinafter referred to as: resolution on the initiation of bankruptcy proceedings) shall contain:
1. identification data on the debtor in bankruptcy and
2. the court’s decision on the initiation of bankruptcy proceedings.
(2) If the court’s resolution on the initiation of bankruptcy proceedings is issued upon a proposal by the creditor, an appeal against such resolution may be lodged also by the partner of the debtor in bankruptcy.
(3) The court shall publish the resolution on the initiation of bankruptcy proceedings on the same day of its issue.
Article 243
(notice of the initiation of bankruptcy proceedings)
(1) The court shall inform the creditors on the initiation of bankruptcy proceedings with a notice (hereinafter referred to as: notice of the initiation of bankruptcy proceedings).
(2) The notice of the initiation of bankruptcy proceedings shall contain:
1. data on the court conducting the proceedings, and the reference number of the case under which the procedure is conducted,
2. data referred to in the first paragraph of Article 242 of this Act, 3. identification data on the administrator,
4. a call to creditors to lodge their claims, rights to separate settlement and exclusion rights in bankruptcy proceedings within three months following the publication of the notice, with an application in two copies, and a caution on the legal consequences of a delay in application,
5. publication date of the notice.
(3) The court shall publish the notice of the initiation of bankruptcy proceedings at the same time as the resolution on the initiation of bankruptcy proceedings.
Section 5.3: Legal consequences of the initiation of bankruptcy proceedings)