“The end of the bankruptcy moratorium will force companies in distress to make decisions”

we talked to Sebastián Crespo Baeza, partner of the firm specializing in labor law, Devesa & Calvo Lawyers -On some of the effects of the end of certain economic and legal measures taken at the start of the pandemic, with offices in Alicante, Valencia and Madrid.

Crespo is a Law graduate from the University of Alicante (UA). More than 20 years of professional experience as a lawyer, specializing in procedural, bankruptcy and economic criminal law. He also serves as an arbitrator at the Alicante Official Chamber of Commerce, Industry and Maritime Arbitration Court and collaborates as a teacher in the Master of Business Administration, awarded by the Department of Business Organization of the Faculty of Economics and Commercial Sciences. of the AU.

Yes If the debtor is insolvent, he must request a declaration of insolvency.. In addition, it should be stated in the request whether the insolvency situation is present or imminent. The request must be made within two months of the date on which the current insolvency is known or should be known. However, provisionally, Royal Decree 16/2020 of 28 April on procedural and organizational measures to deal with covid-19 in the field of Justice Administration determined that until 31 December 2020 the debtor was in a state. Bankruptcy has no duty to demand a declaration of bankruptcy.

The moratorium on declaring bankruptcy proceedings has been extended several timesthe latter by Royal Decree of 23 November 27/2021, where certain economic measures were extended until 30 June 2022 to support the recovery as a result of covid.

It is a type of competition that can be used even to pay the costs of the process in cases where the lack of assets is very serious and the inadequacy is obvious. The Bankruptcy Law states that in cases where it is clear that the assets of the bankrupt party will probably not be sufficient to cover the possible costs of the procedure, the conclusion of the procedure may be decided in the same bankruptcy filing order, furthermore, it is not foreseeable that the reintegration or liability actions of third parties or the criminalization of the contest.

It is the legal basis for the decisions made by the Commercial Courts, in which the processing unit declared the voluntary bankruptcy of the enterprise and concluded due to so-called mass incompetence. The inadequacy of the entities that decide to abolish the aforementioned legal entity and to cancel its registration in the relevant public registers, and their publication in the BOE and the Public Bankruptcy Registry.

Exemption from the obligation to file voluntary bankruptcy It gave companies legal certainty to prevent their managers from taking responsibility. With the expiration of the bankruptcy moratorium, this firewall disappears and the legal period of two months following the date on which the current insolvency is known or should be known begins to run. This is of great importance, because the law distinguishes between accidental and criminal competition, a violation of the obligation to demand competition in a timely manner as a presumption of guilt.

In the event of fraud or gross negligence during the establishment or aggravation of the bankruptcy situation, the contest will be classified as criminal. the debtor or its legal representatives, managers or liquidators, general managers in law or de facto, and those who have any of these conditions within the two years preceding the date of insolvency.

The sentence that qualifies the contest as criminal will identify persons affected by qualification, for example, administrators or liquidators, de jure or de facto.may be disqualified Managing the assets of others or confining them to cover all or part of outstanding debts.

In the first quarter of 2022, the number of bankrupt debtors decreased by 14.7% compared to the same period of the previous year and by 1.8% compared to the last quarter of 2021.

In total, more than two years have passed since companies have been able to delay their decision and obligation to declare bankruptcy proceedings, so an increase in voluntary bankruptcy filings is likely in the coming months. In addition, creditors will expedite the necessary bankruptcy procedure against their debtors.

to these conditions add inflation, labor costs, increase in fuel and energy supplywhich compels us to propose restructuring of companies in all their economic and legal aspects.

Devesa & Calvo Lawyers

Address: Paseo Explanada de España 1, 3º right, 03002 Alicante

Telephone: 965 29 61 80