The Risk Theory of the Principle of Equality of Creditors

The paper is devoted to the nature of bankruptcy law as a mechanism for implementing the principle of equality of creditors. This principle assumes that creditors should bear the risk of insolvency of the debtor. This risk is expressed in the proportion of the claim that turns out to be unsatisfied. Bankruptcy law deals with the distribution of the corresponding risk to creditors of different classes. The essence of the relations of the creditors of an insolvent debtor with each other can be understood through the definition of: 1) the subject in relation to which such relations arise; 2) claims of creditors in respect of this subject matter. The subject of relations of creditors with each other is the bankruptcy estate of the debtor, which (and only which) will be used by each of the creditors to obtain satisfaction. The claim to the insolvent debtor to receive satisfaction under the obligation coexists with the claim to other creditors to receive part of the bankruptcy estate. The right of claim arising from the obligation and addressed to the debtor, in the event of the debtor’s insolvency, gives rise to the right to receive part of the bankruptcy estate, addressed to other creditors of the insolvent debtor. However, the lack of the right to claim against the debtor makes the right to a part of the estate addressed to the debtor’s creditors impossible.