Published: 2025-12-31

Creditor Protection in Insolvency Proceedings and the Priority of Restructuring Over Bankruptcy – An Analysis of the Effectiveness of Insolvency Proceedings in Light of Economic Analysis of Law

Przemysław Mogiełka
The Opole Studies in Administration and Law
Section: Articles
DOI https://doi.org/10.25167/osap.6061

Abstract

The article analyses creditor protection mechanisms in Polish bankruptcy proceedings and the statutory priority of restructuring over bankruptcy from the perspective of
the economic analysis of law. The author posits that these mechanisms can be considered economically efficient only if they genuinely increase the aggregate value available to creditors and society. The main research question concerns the way in which legal instruments addressing the “common pool problem” function in practice, including the automatic stay limiting the race of creditors, the absolute priority rule and the hierarchy of claims. Additional questions focus on the impact of these instruments on transaction costs and procedural efficiency, as well as the role of the trustee and judge-commissioner in shaping the effectiveness of insolvency proceedings. The article also examines whether the statutory priority of restructuring over bankruptcy is economically justified in light of law and economics theory. The analysis employs the dogmatic-legal method supplemented by economic analysis of law and a review of empirical studies on the real efficiency of insolvency proceedings in Poland and selected jurisdictions. The results indicate that, despite a normative framework aimed at protecting the bankruptcy estate and optimising its distribution, Polish bankruptcy proceedings remain characterised by low recovery rates, high transaction and procedural costs and excessive duration. These factors undermine the real level of creditor protection and increase the cost of capital. At the same time, the priority of restructuring is justified only where the going-concern value significantly exceeds liquidation value and institutional capacity allows timely procedures. The conclusions emphasise the need for a more balanced model that integrates creditor protection with debtor viability and broader social costs of insolvency.

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Mogiełka, P. (2025). Creditor Protection in Insolvency Proceedings and the Priority of Restructuring Over Bankruptcy – An Analysis of the Effectiveness of Insolvency Proceedings in Light of Economic Analysis of Law. The Opole Studies in Administration and Law, 23(2). https://doi.org/10.25167/osap.6061

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