چکیده:
In the present era in Iran legal system, several comments have been made with respect to one of the most fundamental concepts of bankruptcy law which is the cessation of payments. Some of the law intellectuals believe that only not paying the debts at the due time will result in bankruptcy and apparently article 412 of commerce code approved in 1932 confirms this belief. On the contrary, Some of the other intellectuals believe that the merchant must be incapable of settlement of his dues considering all his assets and not being capable of paying one or more debts shall not be deemed as the insolvency in its own aspect. In countries like Iran in which merchants usually have delays in paying their debts, considering the first belief would be in contrast with the practical truth of the society. Also comparing Ifla's with bankruptcy rules in commerce code and implementing ratio of assets to the debts is not considered by the legislator. On this basis, it seems appropriate to provide a moderate view based on a legal and economic analysis of the cessation of payments. The research in this regard will be the subject of this article along with a look at other legal systems.
خلاصه ماشینی:
In any case, although identifying a merchant from a non-merchant may face a lack of evidence in some situations, the criterion for identifying him is determined in commercial law, but since the legislator has not provided a clear definition of cessation of payment, this issue is severely controversial in terms of concept.
In the laws of foreign countries and the legislative guide of bankruptcy law of the International Commission on Trade Law of the United Nations, two criteria have also been considered for proving cessation of payment (46: 2005, UNCITRAL); First, the merchant's assets do not cover his debts, which is referred to as the "Balance Sheet Test", and second, the merchant cannot pay a debt whose payment deadline has arrived.
In the case of bankruptcy and insolvency, the bankrupt or insolvent person who does not pay his debt is unable to pay it, while cessation of payment in commercial law may not be related to the financial situation, assets, and ability to pay of the merchant" (Satodeh Tehrani, 1376: 117).
Therefore, if the court determines that the merchant is able to continue commercial activity, it should be able to refrain from issuing a bankruptcy ruling, which is only possible by interpreting cessation of payment as the merchant’s financial inability (Mohammadzadeh and Vagheani, 1392: 49).
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