Bankruptcy subsequent to insolvency mediation in Spain (“concurso consecutivo”)
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Bankruptcy subsequent to insolvency mediation in Spain (“concurso consecutivo”)

Following the Spanish Law 14/2013 of 27 September, in support of entrepreneurs and their internationalization, are considered consecutive contest to request a declaration of bankruptcy mediator, the debtor or creditors for the failure to reach a settlement of payments or default of the payment plan agreed at a bankruptcy mediation.

Also will be considered consecutive contest that is the result of the cancellation of court settlement.

In the consecutive contest, except in the event of insufficient assets available to cover claims against the estate, will open simultaneously necessary and liquidation.

The most important effect of competition is running on behalf of natural person debtor employer had tried unsuccessfully settlement of payments, which is a powerful incentive to try the agreement.

In this case, if the contest is qualified as fortuitous (not guilty), and there has been no criminal conviction for criminal bankruptcy, the judgment to declare the conclusion of the contest debtor individual in settlement of the active mass declare the remission (forgiveness) of all debts unmet settlement, with the exception of public law, provided they are satisfied in full the claims against the estate and all privileged insolvency claims.

In the event that the individual employer has not attempted the settlement of payments, referral of unmet debts will occur only if it is satisfied at least 25% of ordinary insolvency claims , along with claims against the estate and privileged insolvency claims.

We are facing a timid first legislative recognition of the principle of “fresh start”.

In the case of the debtor corporation, the judgment to declare the conclusion of the competition by settlement or failure of the active mass extinction and have agreed to cancel their registration in the corresponding public records.

As we can see , despite the progress represented by the new regulation, the difference in treatment between the end of the competition of the natural person and the legal person is held 

Thus, in the first case ( natural person debtor ) is required for the remission of all debts unmet settlement ( which in any case does not affect public law ) , in addition to attempted settlement, also cash payment of claims against the estate , and the special insolvency claims (which are secured creditors ).

By contrast, in the second case (debtor corporation), such requirements do not establish a legal entity shall be extinguished before the failure of the active mass, subject to the qualification as guilty of the competition (qualification that primarily affect managers) or possible crimes committed in connection with such insolvency, the possible persecution remains intact. The corporation, in turn, will be canceled from the Companies Register and disappear from the legal and business world without paying their debts or public law, or claims against the estate or the privileged insolvency claims, or indeed the rest of insolvency claims.

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