Bankruptcy Criminal Law: beyond bankruptcy | Legal

The new Law No. 16/2022 of 5 September on the Reform of the Consolidated Bankruptcy Law Text introduced a new bankruptcy regime in which the main star, the “special procedure for micro-enterprises”, still applies. It will enter into force on 1 January 2023.

This law takes advantage of the transposition of Directive (EU) No. 2019/1023 of 20 June to make a radical change in bankruptcy proceedings in Spain and is based on Article VII of the Statement of Reasons. Since it is an institution that is not reflected in the rest of the legal systems of our environment, it does not contain special provisions regarding the nature of the competition, on the contrary, there is a bankruptcy Criminal Law, which has partially similar functions with the bankruptcy Criminal Law. raters”.

And this reform retains the bankruptcy classification, but continues with significant changes, such as the removal of the Public Prosecutor’s report, with the fact that the opening of the qualification section in the special procedure for micro is no longer mandatory. – businesses, we think that the legislator is considering convergence with the rest of the European legal systems in the near future, as explained in the explanatory statement, and abolishing the bankruptcy classification in favor of the bankruptcy Criminal Code. .

Our Criminal Code, after the reform with Organic Law No. 1/2015 of 30 March, regulates a punishable bankruptcy crime that does not require a prior declaration of bankruptcy due to the procedure, as it only needs it as a budget. In bankruptcy cases, a criminal case may be brought against the debtor without the need for a prior official or judicial declaration of insolvency, as the debtor does not regularly fulfill his payment obligations (Article 259.4 of the Criminal Code). . This fact has far-reaching implications, because it transforms the punishable bankruptcy offense into a completely independent bankruptcy procedural tool by which creditors can assert their rights against their debtors.

However, the reform gave the punishable bankruptcy an effect to replace the bankruptcy classification, because the reckoning of conscience in Articles 259 to 261 of the Criminal Code includes all the situations regulated in the legislation regarding the degree of guilt. To this we should add, clause 259.1.9ª contains an explicit general clause that allows any other active or negligent conduct that constitutes a serious breach of the duty of care in the conduct of economic affairs to be attributable to punishable bankruptcy. attributable to a decrease in the debtor’s assets, or where the debtor’s true economic status or business activity is concealed.

This regulation does not distinguish between debtor-person and debtor-person. This lack of distinction between companies-legal persons and entrepreneurs or self-employed (especially with regard to the open clause (Article 259 1.9 of the Criminal Code) and the reckless bankruptcy of Article 259.3) has been the subject of much criticism by the Turkish government. In doctrine, in addition to being highly questionable (both because of their explicit wording in the first case, and because of the extreme criminality of commercial crimes in the second case), what they consider to be behavior that has hitherto been resolved. classification bankruptcy

However, if we associate this regulation with the bankruptcy reform and the new bankruptcy procedure established for micro enterprises, which are defined as any natural or legal person engaged in a commercial or professional activity, employing less than 10 workers and having an annual business volume; A liability of less than 700,000 Euros or less than 350,000 Euros, we conclude that the legislator has announced to us on the Consolidated Text Reform in the Disclosure of Law Motifs No. 16/2022 of September 5th. The Bankruptcy Law is replaced by the Bankruptcy Penal Code in the future and more likely than not, and as a result, this law is repealed.

At this point, it will be the legislature that will determine the time and the courts that will determine its implementation, but the fact is that the bankruptcy Criminal Code has left behind the secondary nature of bankruptcy by underlining its absolute autonomy. It has become a valuable tool for creditors to seek their rights by expanding the scope of application significantly.

Francisco Javier CabreraConsultant lawyer at Martín Molina Abogados