Publication details
Břemeno tvrzení a důkazní břemeno v řízení o určení pravosti popřené pohledávky
| Title in English | The Burden to Claim and the Burden of Proof in the Proceedings for Determining the Authenticity of a Denied Claim |
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| Authors | |
| Year of publication | 2018 |
| Type | Article in Periodical |
| Magazine / Source | Bulletin advokacie - online |
| MU Faculty or unit | |
| Citation | |
| web | Open access článku |
| Keywords | incidental dispute; burden to claim; burden of proof; subject of proceedings; claim |
| Description | If a claim filed is denied in the insolvency proceedings, such denial usually results in a procedural oversight in the form of an “incidental dispute“. The effectiveness of a denial of a claim depends quite often on the outcome of an incidental dispute, which can be initiated by an insolvency trustee, a debtor with a disposable right or by another creditor who filed his claim. In view of the very unfortunate construction of the section 198 (3) of the Insolvency Act, doubts arise as to the question of the distribution of the burden to claim and the burden of proof in the incidental disputes caused by the denial of the claim filed. The paper focuses on the analysis of the above mentioned provision of the section 198 (3) of the Insolvency Act, on the definition of the legal regime and the basic characteristics of an incidental dispute and in particular on the clarification of the burden to claim and the burden of proof in the above-mentioned incidental disputes concerning the subject of proceedings, the claim and the principle to try and, in particular, the basic rule of the burden of proof. |