Bankruptcy Proceedings: A Comprehensive Guide

Posted on May 10, 2024 in Law & Jurisprudence

Dispossession: Concept and Legal Precedent

Article 64 regulates the specific representation of the trustee in the property and interests involved in the bankruptcy, stating that:

Once the declaration of bankruptcy is pronounced, the bankrupt is fully inhibited from administering all present property, except those which are unalienable.

The dispossession does not transfer ownership of the assets of the bankrupt to his creditors, but only the power to dispose of them and even pay off their loans.

The immediate effect of bankruptcy is called dispossession.

The legislature decided that the direct consequence of the opening of the contest through the enactment of this sentence, immediately passed to deprive the bankrupt of his right to administer all such goods, was bound to be resolved, then, what would happen to the property.

That matter is regulated in the following subsections of the Article transcribed under the following terms:

The private management of a bankrupt passes by law to the trustee, who exercises it in accordance with the provisions of this law. Consequently, the bankrupt may not appear in court as a plaintiff or defendant, as it relates to property included in the bankruptcy, subject to being held as an adjuvant. But you can exercise by himself all the actions that relate solely to himself and aimed rights attached to it, and perform all acts conservatories of your assets in case of negligence by the trustee.

The legal precedent is provided by Art. 27 of the Act. Regard to the representation made by the liquidator.

Transactions and Commitments: Can the Trustees Hold Therefor?

The law establishes that to celebrate commitments or transactions, an agreement of the creditors is required, as noted literally in number 11 of Article 27.

Article 27

The trustee represents the general interests of creditors, with respect to bankruptcy, and also represents the rights of the bankrupt, as may be of interest to the mass, without prejudice to the powers of the former and the latter determined by law.

It is responsible in particular:

• Celebrate commitments or transactions with the agreement of the creditors;

Faculties Granted to the Trustee Regarding the Bankrupt’s Rights in Societies, Communities, or Associations

Following, also, the regulations referred to in Article 27 and, for this case in particular, those contained in number 13, the trustee is empowered to give consideration to the rights that have failed in societies, communities, or associations or request dissolution, liquidation, or partition, in the absence of stakeholders.

Thus, only a lack of interest in acquiring the aforementioned rights, the trustee may request the dissolution, liquidation, or partition.

Tribunal Jurisdiction of the Bankruptcy Petition

General Rule, Section COT 131.

It also deemed in any event, as materials with a high value for the purpose of determining the jurisdiction of the court, which then indicated:

1. The right to enjoy the proceeds of a capital acensuado and
2. All matters relating to bankruptcy and agreements between the debtor and creditors.

Art 131 TOC, should complement the art. COT 154, since the first meets the skill level (greater or lesser degree) that has to be placed this type of dispute, the latter we elucidated the competent court according to its territory, to provide that:

Will judge on bankruptcy, transfers of goods and agreements between debtor and creditors of the place in which the bankrupt or debtor is domiciled.

Therefore, matters relating to bankruptcy are greater and the competent court is one that corresponds to the address of the debtor.

Regarding legal persons, the rule is found in Article 142 COT,

When the defendant is a legal person per household shall be deemed for the purpose of fixing the jurisdiction of the court, the place where its seat the respective corporation or foundation.

And if the defendant have established legal person, commission or office to represent it in various places as with commercial companies must be sued before the judge where there is the establishment, commission or office that held the contract or participated in event giving rise to the trial.

If several addresses must be sued before the judge where there is the establishment, commission, or office that held the contract or who spoke at the event giving rise to the trial.

In that eventuality, we believe that by virtue of down in Articles 112 and 140 of the Organic Code of Courts, the applicant was authorized to initiate its application to any of them but, once started the process before a court, the latter excludes all others, being the sole jurisdiction to continue hearing the case.

Procedimiento Generally Applicable in Bankruptcy: Legal Source

Art 5 Law N ° 18,175.

All questions arising in bankruptcy proceedings or in respect of agreements will be processed as an incident unless the law specifies a different procedure.

Subject to the exceptions expressly provided in this law, appeals are only granted on the returned effect and shall have preference for aggregation extraordinary to the table and for their failure.

The terms of days specified in this Law shall be suspended during the holidays, unless the court itself or, for just cause, otherwise.

The files relating to competitions covered by this law, shall be removed by the Superintendent of Bankruptcy, the trustee or expert facilitator. Where another court requires the transfer of the original record or a book or parts of the process, the process is met, without exception, sending, at the expense of the petitioner or the party who brought the appeal or made the management originating the request, the respective copies or photocopies. These must be properly certified on each sheet, by the clerk.

Normas Governing Appeals in Contests: Legal Source

The general rule regarding the granting of the appeal is that this is given in both, as specifically guards, Article 193 of the Code of Civil Procedure, by providing:

When you give just appeal, without limiting its effects, including the means and the suspension of devolution.

The same conclusion arrived at in view of what is stated in Article 195 of the Code:

Apart from the cases identified in the preceding article, the appeal must be given in both effects.

Nevertheless, we must agree that the exceptions are so numerous that the rule given above happens to constitute a special situation, as it seems necessary to infer from the stated in Article 194 of the Code of Civil Procedure:

Subject to the exceptions expressly provided for by law, be granted an appeal only in the devolution effect:

1. the orders issued against the defendant in court and executive summaries;
2. from the file, interlocutory orders and judgments;
3. of determinations made incident upon execution of a final decision is final or interlocutory;
4. of the resolutions to order precautionary measures to raise, and
5. In all other resolutions that provision of the law appeal only support the devolution effect.

However, in bankruptcy and, since it prevented in the second paragraph of Article 5 of Book IV of C. of Commerce, the general rule is that the appeal be granted only in the devolution effect, adding an important benefit others, such as the presence for aggregation extraordinary to the table and for their failure.

Cómputo Limits for Bankruptcy: General Rule and Exceptions

Having regard to Article 66 of the Code of Civil Procedure, only refers to the period prescribed in the Code, it was necessary to establish a special law for the bankruptcy proceedings also did rule that govern the terms are business days, But we must be careful in this matter, since the law itself makes it possible to be run.

General rule: The terms are days where the law so provides a special way precisely what happened in the species.

Exception: The possibility of setting deadlines for consecutive days, then, happens to be the exception and, as such, requires a specific text or a reasoned decision of the court and that the legislature envisioned alternative.

The resolution to be issued for that purpose, establishing that a period is calendar days, must have recitals to justify the exemption in question to this situation in particular, as a means to meet the need established by the legislature in order to be founded, to the extent that the resolution meets the procedural nature of a decision of an interlocutory.

Parallel Between Debtor of Art. 41 and Common

Debtor is referred to as qualified, that described in Article 41 of Book IV of the Commercial Code. The rest of the debtors are called common.

Between qualifying and the common debtor is possible to generate the following parallel:

a) The debtor must apply for bankruptcy qualified within fifteen days, as of the date on which it ceased payment of commercial obligations. No such obligation to the common debtor.

If the debtor does not seek qualified declaration of bankruptcy or makes it out of time, you receive the following sanctions:

1. arises a presumption of guilt of bankruptcy (art. 219) and
2. Lose the right to food that falls on the ground (art. 60) on their behalf.

b) The law provides more grounds for declaring the debtor bankrupt qualified than the rest of the debtor or joint debtor, the creditor giving more facilities to be opened insolvency proceedings.

c) The legislature granted greater freedom to set the date of default on the debtor’s qualifying, which can reach the top of 2 years and refers to the beginning of the bad state of affairs revealed by his first failure, not being an obstacle to the court fix a date before that first deadline, but that may be after the breach.

For the other, the date of default shall be determined considering the day that has occurred due oldest enforceable there against him (Art. 62), regardless of whether your bankruptcy or poor condition of their Business preceded that date.

The difference in the first case accusing the latter is that the professionalism of qualified borrowers, brings with it two leads inescapable.

The first. The debtor being a person skilled in the art understood only commercial but professional in the field, his state of insolvency is a phenomenon that could not pass unnoticed, so that the delay in fulfilling the obligations under the law in protecting of its creditors and society in general, can only be considered fraudulent or at least seriously criminal.

The second is that such people, in keeping with their knowledge and competence in the activity, exhibit the ability to use and invent mechanisms to hide their insolvency, avoiding the breach of duty or default, even using means ruinous resulting from other right that the legislature has empowered the court to set the default date, precisely in the data before the first failure, if it considers that the poor condition of its business predated that fact.

d) Articles 76 to 78 of Book IV of the Commercial Code demonstrate greater objectivity and simplicity to result in revocation actions against the debtor in bankruptcy qualified in the rest of the debtor or joint debtor.

e) The qualified debtor is treated differently or, if you will, with greater severity, in criminal matters in bankruptcy to the rest of the debtor or joint debtor, while the latter are only affected the rate of Article 466 of Penal Code.

f) The debtor described the legislature does not grant the right to plead the disposal of property, unlike the common debtor if attending that school.

Requisitos to Declare Bankrupt Debtor’s Estate and Effects: Article 50

Article 50 of Law 18,175. The estate of the debtor may be declared bankrupt at the request of the heirs or any creditor, provided that the cause that determines occurs before the death of the debtor and that the request is made within the year following the death.

The bankruptcy law will produce the severance benefit for the creditors of the deceased.

The provisions only apply to the bankruptcy estate of the deceased.

The special effect referred to in the second paragraph of Article transcript is full separation of law in favor of creditors of the deceased.

This benefit carries a material breach and legal among the assets of the deceased and their heirs.

Quiebra of the Partnership: Extension. Article 51

Article 51 of Book IV of the Commercial Code: The bankruptcy of a partnership or limited matter of individual bankruptcy supportive partners who compose it, but the bankruptcy of one of them is not bankrupt the company.

However, it is processed separately before the same court the failure of society and supportive partner, and concur in the bankruptcy of the partners’ personal creditors with creditors for them.

The bankruptcy of the limited partnership no matter the bankruptcy of the limited partners, even when they are jointly responsible for the administration have been mixed, but may be declared bankrupt if they have tolerated the insertion of his name in the name.

Quiebra of the Limited Partnership: Extension. Article 51

Article 51. Book IV. Inc. Final. The bankruptcy of the limited partnership no matter the bankruptcy of the limited partners, even when they are jointly responsible for the administration have been mixed, but may be declared bankrupt if they have tolerated the insertion of his name in the name.

Quiebra Society Indeed: Extension

The general rule is that only people can be declared bankrupt. However, in the case of bankruptcy of hereditary succession is raised to the taxable status of a totality of assets represented by their heirs, individuals cease to exist but all its assets and liabilities in their heirs survive, provided they are diseases, the heirs are different people and bankruptcies are not inheritable.

However, to protect creditors and the heirs, the legislature contemplated the possibility of declaring bankruptcy as a legal universality hereditary succession, meaning that the heirs represent, in law, the perpetrator rather than the goods, which are taxable cash.

Ultimately, the de facto partnership, regular or irregular, may be declared bankrupt because, as a society, is a legal person and in that capacity, not sight any legal objection to assume the consequences of their acts, translated in declaration of bankruptcy.

The application of the stated in Article 357 paragraph 2 of the Commercial Code and as members of society in fact be jointly liable to third parties with whom we have contracted on behalf of and in the interest of society in fact, be declared bankrupt of these, revealing the existence of the solidarity of members in respect of social obligations, when she interested third parties, is the budget that authorizes the creditor to apply for bankruptcy, except the statutory exception mentioned for the limited partnership. This situation is so exceptional that it should be expressed by the legislature.

Is There a Case to Declare Bankruptcy to a Dissolved Company? Therefor

Some argue that society, once dissolved, it loses its legal personality, so it is not capable of being declared bankrupt. He adds that once dissolved a partnership, formed a community and will have to sue individually to each partner’s share by its share in the liabilities of that community.

Exceptionally, they argue, Article 109 of Law 18,046, which regulates public companies, requires that the legal personality of the company is prolonged until the end of its liquidation, so that it would be possible bankruptcy of a corporation in liquidation.

The doctrine and case law extending legal personality to the liquidation of commercial companies, so they dissolved corporations but in liquidation if they can break the duration of the liquidation.

The civil partnerships which are not anonymous, its solution entails the end of society and therefore, they shall not be filing for bankruptcy after it was dissolved. If not in these cases there is no person capable of being dragged into this legal status, is the need to act in a process and in court.

By contrast, in all other cases, they aim to consider possible bankruptcy declaration until the end of the settlement, an event which ends the legal personality and hence society, thus preventing the latter is located, even if the process is not contentious.

Lock can not validly estimate procedural relationship with someone who has not been authorized by law to act in the legal life have disappeared because as a person or subject of law.

This implies that disappeared from the life of the law because such a result represents the effect of the term of the settlement of commercial companies.

In the case of civil partnerships, this derivation is found by the mere fact that the company be declared dissolved, because from that time ceases to exist as a society going to be structured as a quasi-contract community.

Can it Be a Bank Insolvent? Substantiate

Article 120 of Decree Law 3 of 1997, which set the text of the so-called General Banking Act, provided:

Banks may only be declared bankrupt when they are in voluntary liquidation.

In this way, and to protect the interests of creditors and society, Title XV of the Act provides the procedure for the event that a bank into insolvency, which is none other than forced liquidation or arrangement except the rare event that previously derived from the transcribed article.

Obviously and as derived from the provision transcribed, bankruptcy is possible given that the settlement is still pending, because after this stage is completed there is no corporate bank.

Is There a Case the Failure of Legal Persons of Public Law?

Álvaro Puelma Accorsi says it is not possible to declare bankruptcy as a legal person under public law, whatever the way it is constituted. And based on the following rules:

Article 752 of the Code of Civil Procedure:

Every court to order the Treasury to any benefit, must be completed within sixty days after the date of receipt of the official referred to in paragraph two, by decree issued through the respective Ministry.

Rendered the sentence, the court shall in the ministry, as appropriate, attaching a copy or certified copy of the court of first and second instance, with certified to be final.

The process must certify the fact of having sent the office and added to the file copy or certified copy thereof. The date of receipt of this certificate shall be established by the minister of faith that he had delivered to the Parties to the Ministry Office or, if it had been sent by registered letter within three days of receipt by mail.

If the sentence order the Treasury to pecuniary benefits, the payment order shall provide that the Treasury included in the adjustment and interest payment as determined by the verdict and accruing until the date of actual payment. In cases where the sentence would not have ordered payment of readjustment and always pay the ordered amount is not settled within sixty days specified in paragraph one, that amount will be adjusted in accordance with the changes it has undergone Index Consumer prices between the month preceding that in which the sentence was executed and the month preceding the actual payment.

The companies formed by the State also entered, even when using private law regulations, the qualification of legal persons under public law, without thereby liable to be confused with the Treasury. They are not the Treasury, only he, who as state asset version, responds to the restrictions contained in Section 752 CPC.

Private law rules do not apply to the State in general terms, unless they act in this area and under a private.

However, the Chilean State is not the only legal entity of public law in the country.

We estimate that if the law does not expressly provide an exception in this regard, as it did in the case of banks, does not concern the hermeneutic introduce.

Latter do so would violate the provisions, at least the following provisions set out in the Civil Code, as general rules for the interpretation of the law:

Article 19: When the meaning of the law is clear, its wording be disregarded under the pretext of consulting his spirit.

If the legislature had intended to except from the effects of bankruptcy law to legal persons under public law, he would have said. By not doing so, not for the interpreter to restrict the application of the law.

Article 23: The favorable or hateful of a provision shall not be taken into account to broaden or narrow its interpretation. The extension to be given to any law, is determined by its genuine meaning and according to the preceding rules.

In short, we believe that with the exception of the State of Chile and the United States in general, legal persons of public law that do not meet the quality, are likely to be declared bankrupt if they incur any grounds to justify it.

To reach this conclusion is crucial that we have not found any statutory exception that allows the interpreter to restrict the effect or area of 18,175 law enforcement and should have been manifested the will of the legislature in this regard being inadmissible assumption that expression of will by way of mere hermeneutics.

Can They Break the Legal Persons, Non-Profit?

Foundations, cooperatives and corporations are legal persons of private law, non-profit, as outlined in Article 545 of the Civil Code and Article 1 of the DS 502, from 1 September 1978, which would have consolidated text on cooperatives.

Following the publication of the book in question, the Cooperatives Act was amended and consolidated text was set by the DFL N ° 3, 2003.

Under these new regulations, the cooperatives have no limitation of subject matter and are not affected to a prohibition of responding to a for-profit, so it is very transparent, and say them in any way, included in this chapter. More appropriately, in the present structure, a form of association, for profit, which may be civil or commercial, depending on the target object in the statutes.

It follows that legal persons and, therefore, subject to rights and obligations, which, subject to collective enforcement.

In all cases brought it up, the assets subject to competition will be limited to those belonging to such person, from which both founding partners, including affiliated corporations, and indeed, the cooperative members, account for their contributions.

Cooperative members or participants in a cooperative, as in the case of limited liability companies, have also been empowered to take responsibility in relation to the obligations of the cooperative to an amount greater than the contribution, provided this is stipulated, but they are jointly liable for the obligations of such legal persons.

Is it Possible to Declare Bankruptcy When There is a Single Creditor?

Article 40, which provides:

The debtor may be declared bankrupt even with a single creditor, provided that all other legal requirements.

However, we believe that accepting the bankruptcy with a single creditor violates the meaning of the institution and such evidence arises rather from other regulations contained in the law of the branch that contradict the provision in question.

Lenders to Which is Prohibited From Filing for Bankruptcy?

Legal prohibitions to apply for bankruptcy that affects some creditors, are referred to in art. 46 and 47.

Article 46: It may seek a declaration of bankruptcy in their respective cases, the husband earned his woman, the woman credited with her husband, son and father earned his father earned his child.

Article 47: The limited partner can not sue the bankruptcy of the company to which he belongs, but if particular creditor thereof, can provoke in this character.

Causales Bankruptcy Under Article 43

Article 43. Any of the creditors may seek a declaration of bankruptcy, even if your credit is due, in the following cases:

1. When the debtor to exercise a commercial, industrial, mining or agricultural and stop payment of a commercial obligation to the applicant, whose title is executive.
2. When the debtor against whom three or more titles exist executives and losers from different obligations, and we were started, at least two executions, failed to communicate in all of them, within four days after the respective requirements, property enough to respond to the provision and costs owed, and
3. When the debtor absconds from the territory of the Republic or hidden closed leaving their offices or facilities, without having appointed person administering his property and power to fulfill its obligations and answer new demands.

Causal Bankruptcy Under Article 172

Article 172. Without prejudice to the preceding article, the creditor who is in any of the cases referred to in paragraphs 1 and 2 of Article 43, request the competent court to order the debtor or the debtor’s estate to make proposals for composition Preventive court within 30 days from the notification in the manner provided in the final paragraph of Article 45. Failure to submit the agreement within the deadline, you will lead, necessarily, the bankruptcy of the debtor and the court will declare it officially.

In the case of the preceding paragraph the debtor may, within five days from the notification of the request, stating that it welcomes irrevocably Article 177 ter and the judge shall summon the creditors’ meeting referred to that provision.

The individual right may be exercised by the persons referred to in Article 170 para 3. Once notified their request, the creditor may not withdraw or abandon it. Neither can be traded of any kind. The payment made to the applicant creditor after filing his petition shall be null and void.

Against the decision ordering the debtor to submit an agreement, only administrative appeal may be brought, and against the reinstatement resolve no further recourse. In this case the term referred to in paragraph one is 20 days counted from the failure of the replacement decision.

If the court rejects the request of the creditor, it may seek bankruptcy in accordance with this law, but if the bankruptcy petition is based on the same grounds invoked and the same factual basis, must apply to the court rejected the application.

Causal Bankruptcy Article 209

Article 209. Rejected the proposals of any kind of settlement had not obtained the required majority for approval, or rejected by any of the grounds mentioned in Article 196, can the repeated failures as often as necessary, but not apply the provisions second paragraph of Article 188.

When the preventive legal agreement has been rejected or discarded in any case referred to in the preceding paragraph, the court shall necessarily the debtor’s bankruptcy, automatically and without further ado.

The board to reject the proposals of preventive legal agreement shall state the name of a trustee and an alternate, who the court shall appoint the final character. May not be appointed to such office who have been, according to the number 1 of Article 174.

If agreement is disposed of preventive justice, the court shall proceed to appoint trustees in accordance with the provisions of Article 42, but may appoint to such positions who have been appointed as provided in item 1 of article 174.

Rejected the agreement by any of the grounds mentioned in 2 or 5 of Article 186, or inability to vote in any of the creditors who have attended to celebrate, may be proposed again, once rectified the fault.

Cause of Failure of Art. 214

Article 214. A final decision of declaring the nullity or the breach, the court declared bankrupt debtor’s motion and without further ado.

Cause of Failure of Art. 215

Article 215. In the petition for annulment or declaration of breach of agreement, the applicant shall indicate the name of the owner trustee and the trustee alternate, and only to them the court must designate in the sentence that gives rise to the demand and declare bankruptcy. These designations shall not lie with those who had held the post referred to the number 1 of Article 174.

If appeals are filed more than one petition for annulment or declaration of breach of agreement, the court shall appoint the trustee said in one of the demands that are benefiting.

Second Bankruptcy: Concept and Effects

Addresses the issue of the second bankruptcy both Article 216 (concept), such as 217 (effects)

Second bankruptcy is both declaring on the occasion of the nullity rule or breach of an agreement as declaring any other reason, while under an agreement.

The debtor’s acts or contracts, executed or held in the period between the date of the decision rendered on proposals for a convention or on the application for the appointment of an expert facilitator who gave it birth.

The second bankruptcy reinstates previous creditors in all its rights against the bankrupt.

Former creditors concur with the new distributions of assets from bankruptcy by the full amount of their claims, provided they have not received any part of the stipulated in the agreement, otherwise, can only concur with the new lenders for the part of their original capital credits corresponding to the unpaid portion of the agreed sum. In any case, both ancient claims of creditors, as appropriate, as new, must be verified in the second bankruptcy, except those which the law expressly excluded from this process.

Cause of Failure of Art. 251

Article 251. The decision to reject the transfer of goods declared at the same time, the debtor’s bankruptcy.

The process will continue substantiated in the state that is, for all proceedings in bankruptcy, acting as a sufficient appeal to creditors that charged in accordance with the numbers 3 and 4 of Article 246.

Can a Creditor Bankruptcy Order Parole? Discuss

ART 43 The first says that you can ask the bankruptcy creditor, even if your credit is not required.

It also would be empowered person who has a credit or rely on a condition precedent, the foundation found itself in the ART 152.

The creditor may require the allocation conditional on dividends meeting the condition corresponding to restore it to ground with the current interest is why we make it harder for the creditor depends on the verification of a condition will not satisfy the requirement of creditor, and therefore would not be empowered to verify declared bankruptcy and is also the person who holds the possibility of a right to be subject to a suspensive condition does not satisfy the legal requirement to be awarded is not fulfilled as the condition and therefore can not file for bankruptcy.

By virtue of these considerations we believe that the bankruptcy petitioner or applicant must hold a credit that can be executed, which does not happen with the person who holds a potential credit or hypothetical, that only a mere expectation, the As the existence of their loans will depends on a condition precedent.

Classification of the Causes of Failure From the Point of View of the Taxpayer

Classification of Causes

The causes of failure have been classified in various ways, the most important, according to Alvaro Puelma Accorsi, the following:

a) From the point of view of who or what is declared bankrupt.

a.1. Which affects the debtor described in Article 41, which is reduced to that specified in item 1 of art. 43. We also include here those that affect a range of goods, therefore, not a debtor.

a.2. Those common to all debtor

a.3. The debtor’s exclusive

b) Commencement of insolvency proceedings.

b.1. Grounds applicable when the bankruptcy is petitioned by the same debtor.

b.2. Applicable grounds when requested by a third party.

b.3. Causes that require the statement by the court ex officio.

c) The approach taken by the legislature to establish them.

c.1. Those involving the legislature’s recognition of the sufficiency of the mere cessation of payment to induce competition

c.2. Which require a repetition of the default

c.3. Which also requires the debtor’s insolvency.

c.4. Which involve the recognition of a state of bankruptcy, such as when requested by the debtor or derived from the rejection of a judicial agreement.

d) According to the source.

d.1. Direct. Is requested for the same debtor or a creditor.

d.2. Indirectly. The declared ex officio by the court, under legal circumstances.

d.3. Extended. Declared that following the bankruptcy of another person.

Classification of the Causes of Bankruptcy in Response to the Initiation of Insolvency Proceedings

1. Grounds applicable when the bankruptcy is petitioned by the same debtor.
2. Applicable grounds when requested by a third party.
3. Causes that require the statement by the court ex officio.

Clasificación of the Causes of Bankruptcy Under the Criteria of the Legislature to Establish Them

1. Those involving the legislature’s recognition of the sufficiency of the mere cessation of payment to induce competition (Article 43 No. 1).
2. Which require a reiteration of the cessation of payments (Article 43 No. 2)
3. Which also requires the debtor’s insolvency.
4. Which involve the recognition of a state of bankruptcy, such as when requested by the debtor or derived from the rejection of a judicial agreement.

Clasificación of the Causes of Bankruptcy by Origin

1. Direct. Is requested for the same debtor or a creditor.
2. Indirectly. The declared ex officio by the court, under legal circumstances.
3. Extended. Declared that following the bankruptcy of another person. Article 51 of Book IV of C. of Commerce.

Petición Own Bankruptcy: Requirements

The defendant also has the status of applicant for himself, or taking the representation of the general interests of persons who could sue but did not have.

This leads to the conclusion that the so-called bankruptcy, in fact, does not meet the legal nature of a trial but rather a procedural undertaking to meet the requirements of a multilateral interest, as we had occasion to review are those of the debtor, the creditor or creditors and society as a whole.

Requirements:

Article 42 The debtor, to seek a declaration of bankruptcy, must submit in duplicate:

1. An inventory or accounting of all his property, stating the place where they are located, their estimated value and the taxes that affect them;
2. A statement of the assets in accordance with the law, are excluded from bankruptcy
3. An account of the trials that have pending;
4. A state of the debt, stating the names and addresses of the creditors and the nature of the respective securities and
5. A report of direct or immediate causes of the poor condition of its business, it must account for the investment of the proceeds of the debts and other property acquired in the past year.

Debtor’ll take full accounting will also present its latest balance sheet and profit and loss.

If the debtor is a partnership or limited, the components listed will be signed by all general partners that invests the quality of the social contract and be present at the home of society.

If the debtor is another kind of entity, the parts in reference shall be signed by its administrators.

Procedimiento to Appoint Trustee in Bankruptcy Itself

For the purposes of appointing a trustee and an alternate in the decision to declare bankruptcy, the judge cited previously, in accordance with the following paragraphs, three creditors listed by the major credits in the state of debts submitted by the debtor, or who would if they were

Least to that point the names of the respective trustees, and only the court must appoint them at sentencing.

The creditors listed are cited by notification by ballot, which shall show the creditor’s name and address, also the subject of the subpoena. The court commission the receiver turn to make this notification, as soon as it has received an application for declaration of insolvency. The hearing will be held within three days of completion of a final notification, the recipient must practice no later than the third day after the issuance of the available resolution. The late notification shall not invalidate the hearing

Indicated. The failure to do so shall be punished as provided in the third paragraph of Article 393 of the Organic Code of Courts. The rights attached to the receiver shall have the priority to set the number 4 of article 2472 of the Civil Code. The hearing will take effect with the creditors or attend, and shall nominate trustees. If we were witnessing more than one creditor, the election shall be held by the majority of all persons entitled to vote, according to

the amount shown on the state of debts. If any creditor fails to appear, the court once again through the procedure with the following three creditors, or those who would if they were less. If it proves impossible to implement said, the liquidator will be appointed by drawing lots, which shall include the names of all trustees authorized to exercise within the territorial jurisdiction of the court. These procedures do not give rise to incidents, the court must resolve any matter which plane is presented and its resolution is not open to appeal.
45.Causal 1 st, art. 43. At what point will determine the quality of trader the debtor?
When the debtor to exercise a commercial, industrial, mining or agricultural and stop payment of a commercial obligation to the applicant, whose title is executive
46.Causal 1 st, art. 43. When it is understood that the debtor ceased payment of the obligation and what it means to be commercial?
The debtor is understood to process the payment of an obligation when it has expired. Commercial obligations as they are understood in a broad sense are the duties of merchants.
Directory 47.Exigencia imposed on a bank to disclose credit problems that jeopardize the timely payment of obligations.
Article 41: A debtor engaged in a commercial, industrial, mining or agriculture, will seek a declaration of bankruptcy later than fifteen days from the date of cessation of payment of commercial obligations.

Do not at fault will be expressed in the prohibition of the board, because they can not present false accounts to shareholders (subject hearing last year, art. 42And law 43 18 046)
48.Causal 2 nd, art. 43. What is understood to have initiated at least two executions?
The wording of the article and harmonious interpretation of its requirements, establishes a context in which one can only derive that this circumstance is satisfied if the enforcement proceedings initiated, at least there is requirement, because otherwise we do not see what would be the chance to qualify if they concur or not the following requirement.
Does not satisfy this condition the mere preparation of the executive, as in it the eventual debtor is not required to provide goods or no requirement.
Would have a margin of doubt as to the effect that the law assigns to the non-allocation of capital, interest and costs in the reporting of protests of bills of exchange, promissory notes and checks.
We understand that this regulation, by law, is implied an effect called compulsive debtor in order to repay the loan, in other words, a payment.
However, the sense that the law assigns to the term requirement, when used in certain limited obligations recovery procedures only to those situations and scenarios not as described in the application of the concept is forced and contradictory to the first requirement , while the new procedure being initiated efforts to create an enforcement.
In short, we understand that two executions have been started since, under enforceable, the debtor, at least, has been formally required to pay.
49.Causal 2 nd, art. 43. How does the debtor meets the requirement to produce enough goods to cover the provision and costs owed?
The legislature requests the debtor is in a distressing economic situation, the end of three titles show up and two executions executives started, do not expect the lien or realization of assets.
Requires a positive attitude of the debtor in order to avoid incurring the cause of bankruptcy. The present term care and behavior require not only support the evolution of a performance itself.
Thus, the passivity of the debtor, if it is subject to a lien on the property identified by the creditor and had no assets to answer for the result of the execution, would have sufficient grounds to infer that the requirement was satisfied and therefore the debtor failed in its obligation to produce goods in an appropriate amount depending on the amount charged, giving rise to the cause, assuming the other requirements.
It is important to consider that property as specified, must be different for each of the performances, since it must be sufficient to cover all obligations affect performance in the terms expressed in the article commented.
Understand debt, not just capital but also their accessories provided by law or resulting from it, such adjustments and interest. The law needed to refer to the costs because they are not always due.
It may happen that a person is subject to a number of executions that lead to a ground, be declared bankrupt, after which the debtor earns one or more of the executive proceedings due to timely opposing exceptions.
We estimate the possible damage is less than that could cause the company to accept that that debtor, while repeated shows signs of default and therefore for suspecting insolvency, to continue operating the business at risk of worsening the problem .
The legislature took the risk of the mistake and opted for the general interests of creditors and society.
Also, always able to meet the legal obligation to provide goods to, then continue with the enforcement procedure, which is within the scope of its ability to destroy the causal process of founding of the bankruptcy petition, so the risk is relative and eventual responsibility for the damage lies with the debtor, who did not use legal mechanisms to defend their interests.
50.Causal 3 rd, art. 43. When the debtor understands that escaped?
Some authors claim that flight or concealment of evidence of the debtor bankrupt, others claim that alleges a potential default.
For the moment, the bankrupt is a status derived from a court of law, so that the events in question do not create that reality.
Nor is there any potential default, so we can not accept this predicament.
In extreme this argument, we are all exposed, potentially, to incur a default presumption of insolvency and what is taking things too far.
Therefore, we recognize that it is complex to unravel the legislature’s intention to establish those facts as a cause of bankruptcy, without analyzing what they entail.
Thus we can distinguish two situations in that causal:
a) The debtor’s flight from the country.
b) The concealment of the debtor, leaving their offices or establishments closed.
c) The common requirement for both cases is that it does not leave a person in charge of managing their property with power to meet its obligations and answer new demands.
Álvaro Puelma Accorsi said that the mere absence or abandonment of the country surprisingly does not lead to a leak.
Being unable to agree with him in the first formulation, does not happen the same with the second, since it is inconsistent with the sense that the term assigned to the Dictionary of the Spanish language, saying that this must be understood the Flight hasty or also the unexpected abandonment of the family home or usual environment, which is consistent with a surprise drop in the country.
For his part, fled away conceptualized as quickly, out of fear or otherwise, of persons, animals or things, to prevent harm, annoyance or discomfort.
Not practicable to apply in a timely and efficient legislation governing bankruptcy if, before considering the constitution of the causal, we investigate the real reasons that the debtor has had time off or leave the country unexpectedly.
For the harmonic context of the legislation in the industry, the sort criterion, the central concern of the legislature is in the rights of both creditors and general society.
In virtue is described as a safeguard mechanism and stabilizing economic anomalies such as those arising from the cessation of payment or, if insolvency.
So what affects the legislator favors appearance over reality or expressed in other terms, the forms are taken as facts, unless evidence to the contrary.
If the bankruptcy was requested not to be effective where the debtor has fled the country, will concur to defend the lawsuit, in person or represented at the respective instances.
But do not assume as acceptable to impose the procedural burden creditor to assert that ground must establish, in advance, the debtor’s intent to leave the country.
That predicament matter, ultimately, dip it in a subjective realm and, ultimately, to impose a test impossible or extremely difficult, under circumstances that sought by the legislature is precisely to protect the creditor and society, rather than the debtor, who assumed the risk indicated, knowing, by the presumption of knowledge of the law.
Only the debtor filed the possibility of avoiding such a contingency, in case of appointing a representative with sufficient powers.
In this context, if, despite the awareness of the risk the debtor continues its conduct, abandoning or leaving the country without sufficient power of attorney appointing the bankruptcy petition is a scenario that only refers to their origin and causation, the conduct of the debtor unwise.
We believe that best interprets the general spirit of bankruptcy law and better protect the legal right had in view in establishing their regulations, concluded that the apparent leak revealed in the abandonment or unforeseen or unexpected exit from the country, while attorney constituted sufficient to provide for the grounds for declaration of bankruptcy in the study.
Is a gifted administrator of the Armed with sufficient powers to conclude the necessary acts and contracts specific to the debtor’s ordinary course and be notified of new lawsuits on behalf of the latter.
61.Concepto convention.
The agreements are agreements between the debtor and its creditors Valista they recognize as their immediate object to establish a system to resolve the liability and thereby achieve a purpose mediate to prevent or avoid bankruptcy and raise declared.
The conventions are those who pursue preventive avoid bankruptcy.
Can be concluded settlement or court, but are not considered first agreements but agreements between creditors and the debtor with the relative effect of contracts.
Not the same thing happens with the legal agreements, is pursuing prevent bankruptcy, that court for consideration must be brought before the courts or raise which was declared, by their nature, will always be legal.
Bankruptcy 62.Causal inc. 3 of art. 177.
This rule provides for two new causes of bankruptcy provide that: The expert facilitator within the non-extendable period of 30 days counted from the conclusion of that meeting (the one who appointed him), should assess the legal, accounting, economic and financial the debtor and its creditors to propose an agreement that is more advantageous than the bankruptcy of that, or if not, ask the court to declare the bankruptcy of the debtor, who must declare outright. If the expert facilitator does not carry out their duties within the prescribed period the judge will automatically Case insolvency.
63. What is applies causal debtors Art. 251?
The cause of bankruptcy is a derivation of the rejection of the transfer of assets, in the same way that caused the opening of the contest the rejection of an agreement.
Article 241 of the Bankruptcy Act provides:
The debtor does not fall under Article 41 may make disposal of property, in accordance with Article 1614 of the Civil Code, when not in any of the cases listed in Article 43 of this law, as they are applicable .
In making the transfer, give effect to the provisions of Article 42.
This article provides the details of the documents to be submitted by a debtor applying for bankruptcy.
Article 1614 of the Civil Code, transfer of property described in the following terms:
The transfer of property is the voluntary abandonment by the debtor makes all his to his creditor or creditors, as a result of unavoidable accidents, is not in state to pay its debts.
The causal is configured from the requirements of art. 251 of Book IV of the Commercial Code:
The decision to reject the transfer of goods declared at the same time, the debtor’s bankruptcy.
The process will continue substantiated in the state that is, for all proceedings in bankruptcy, acting as a sufficient appeal to creditors that charged in accordance with the numbers 3 and 4 of Article 246.
Article 252 of Book IV of C. of Commerce, does not grant the appeal.
64.Actitud and obligation under art. 45 to the court entertaining the petition for bankruptcy.
Article 45 of Book IV of the Commercial Code, by providing:
The court will rule on the bankruptcy petition as soon as possible, after hearing the debtor, and shall ensure, by all means at its disposal, the effectiveness of the reasons given. …
Since the legislature does not impose on the debtor’s obligation to justify its request on any ground, except the point of Article 41 of Book IV of the Commercial Code, as becomes obvious, is not for the court to inquire into the matter, prioritizing passivity that makes up the general rule of action of the courts in civil order.
Indeed, Article 45 owes its existence to the need for an exception the rule and as such an exception must be narrowly construed, applies only to requests for failures that need to be based on legal grounds, it is not the case with the straightening the debtor.
In addition and as is apparent from its wording, that Article 45 provides for and regulates the hearing to the debtor, which excludes untapped by the latter requests, in which the hearing is irrelevant to strong as unlawful.
Consequently, the inquiring authority should issue the court will only apply to the bankruptcy petition straightened by one or more creditors, but not if the debtor.
65. Can it be denied the bankruptcy petition itself? Substantiate
We share the position of Alvaro Puelma Accorsi, the court should declare bankruptcy if requested by the debtor, without prejudice to this that does not accompany all the documents specified in Article 42 of Book IV of C. Trade or present poor or untimely.
66.Requisitos for a creditor filed for bankruptcy.
Art. 44 of Book IV of C. Trade specifies requirements to be met by the bankruptcy petition without indicating whether it was straightened by the debtor or a creditor, however, there are clear indications that refers only to the latter.
These requirements can be summarized as follows:
1. Specifying the grounds justifying the declaration of bankruptcy and its constituent elements, which is not imposed on the request is embodied by the debtor, showing that only refers to the request initiated by one or more creditors.
2. Accompany documents required to prove the founding of the causal facts justifying the request or, where necessary, provide pertinent evidence for this purpose.
3. If the cause is that applicable to the debtor specified in Art. 41 of Book IV of C. of Commerce, the petitioner must prove that fact or, failing that, lacking such capacity since it refers to a unique causal debtors who, precisely, are not enrolled in the description in that article.
4. Indicate the name of trustee member and alternate, so designated by the court in that capacity. The trustees must appear on the national list compiled by the Ministry of Justice.
For the wording of Article 44 of Book IV of C. Trade, under the amendment introduced by Law 20,004, this requirement is mandatory and failure may bring with it the rejection of the bankruptcy petition.
The rejection of that application becomes quite serious given the responsibility assumed by the petitioner to compensate damages to the debtor, if it is defeated in his claim.
We must not forget that the right to seek compensation from the debtor does not follow automatically from the fact that he was denied the bankruptcy petition. They go on the species, in addition, the requirements of fault or intent to review later, and shall also, to demonstrate actual harm to a causal link between the application and the damage for which compensation is sought.
5. Accompany a voucher or ticket to the bank to view the court order an amount equal to 100 units of capacity to provide the first expenses to claim the opening contest.
This requirement is not imposed on the debtor when applying for your own bankruptcy, revealing that this article does not apply to this undertaking.
The arguments for reaching that conclusion, basically, there are basically two:
The first is that this provision takes the credit quality of the applicant against the bankrupt, which could not occur if it was the latter who made the appropriation;
Secondly, Article 41 of Book IV of C. Trade debtors requires that states the obligation to apply its own bankruptcy in the period of 15 days from the date of default.
Not for consideration as an argument against this position that the article does not contain a distinction or differentiation between creditor and debtor, to the extent of context and actually seems to derive, while nobody doubts or dispute that the law does not require the latter invoke a cause to request a bankruptcy proceeding does not assume as such the existence of the cessation of payment referred to in Article 41 of Book IV of C. of Commerce.
67.Tramitación of the bankruptcy petition .* (Check in the note page. 277)
Art. 45 of Book IV of C. of Commerce, provides:
The court will rule on the bankruptcy petition as soon as possible, after hearing the debtor, and shall ensure, by all means at its disposal, the effectiveness of the reasons given.
The hearing will only be liable for information, not give rise to the incident, and in it he may appropriate funds sufficient to pay claims which have provided the basis for the bankruptcy filing and the costs involved, in which case shall the bankruptcy.
If the application is ultimately rejected, the debtor may demand compensation for damages to the creditor, if he proves that it made faulty or intentionally.
For purposes of the first paragraph of this Article shall be notified to the debtor personally or as provided in Article 44 of the Code of Civil Procedure, even if not in the place of trial.
68.Consecuencias the rejection of the bankruptcy petition.

As provided in the penultimate paragraph of Article 45, if the bankruptcy petition is refused in the end, in other words, by final sentence, the legislature authorizes the debtor to demand compensation for damages to the creditor, if he proves that it made faulty or intentionally.
Therefore, a requirement for admissibility of a debtor’s claim for damages lies in the pretest of the negligence or fraud of the creditor petitioner, a procedure that falls on the debtor’s interest in compensation.
Admissible or guilt sufficient to give rise to compensation may only be the worst since that makes provision equivalent to fraud and are for that kind of blame the legislature says it is comparable to the intent.
Furthermore, the caseload of the burden of proof lies with the debtor to derive the wording of Article 45, to the extent that the power to sue was subject to a condition if it proves faulty or has acted intentionally.
The legislature does not provide that the compensation depends on the existence of fault or intent, but is it possible to sue that has been conditioned, which would involve holding that no action without the prior test.
Given this line of interpretation should be the natural question regarding the procedural right available to the debtor to prove that fact.
We believe that this would generate a regular pre-trial management.
The debtor before suing must prove the negligence or fraud of the creditor petitioner, starting a school management of the courts in accordance with the stated in article 45 that, like all school management, it must be subjected to incidental processing be incidental and after a regular trial, taking place, thus the application of general principles of procedure.
In general, modern procedural regulations always consider the possibility of claiming damages, to the extent that was caused, when faced reckless actions, there plenty of French jurisprudence and various countries that says because the abuse of rights.
Obviously that impose the required repairs, the burden of proving the damage and deliver it to the discretion of the court when it does consist of the mere existence of the procedure.
The pace of trade negotiations and the need to implore the means necessary to achieve resolution of a situation that threatens to be serious, convinced the legislature on the advisability of establishing such a compensatory mechanism.
But the line did not follow other laws that recognize the debtor the right to sue immediately. Considered desirable to protect the creditor, preventing it from being drawn into unfounded claims for compensation arising from the hatred of the debtor unreasonable and awarded to dismiss the bankruptcy court.
We believe that the meaning of that provision has not been properly reflected.
69.Propósito an audience granted to the debtor by bankruptcy petition against him.
We recognize the following specific purposes of this hearing to the debtor:
1. Convene a procedure to enable the debtor to render assistance to the court proving the facts it deems relevant and make room for the background requirements as requested.
2. Allowing the debtor to terminate the venture consigning the founding credit and its costs.
The legislature did not need to refer specifically to the adjustments and interest, because as accessories, general rules apply in that payment must be complete and, therefore, involves the complete fulfillment of the obligation, which is capital adjustments and interest.
On the contrary, it was necessary to include the obligation to pay the costs, they are owed as there is a court order establishing it, and every time the law want to force a decision on the matter, had to dispose explicitly and this turns out to be a cases.
Other examples are the checks, bills of exchange and promissory notes, which expressly requires the legislature to appropriate third day, the principal, interest and costs, for the purposes expressed.
3. Indicate the court the way gain sufficient assurance to meet the obligation under the first paragraph of Article 45 in order to ensure, by all means at its disposal, the effectiveness of the reasons given.
As for the possibility of rendering test in this stage of the proceedings, Álvaro Puelma Accorsi prefers the affirmative in the event that the court considers that there are material facts, relevant and controversial.
In that event, estimates that the procedure should be a regular trial, following the rule of Article 3 of the Code of Civil Procedure.
70.Menciones of bankruptcy.
That resolution also meet the requirements of art. 169 of the Civil Procedure Code, which refers to the need to express in words the date and place of issue, as well as the signature of the judge who issued must include the specific terms of Article 52 of Book IV of the Commercial Code, which we comment below:
Without prejudice to Article 169 of the Code of Civil Procedure, the final decision to declare bankruptcy also contain:
1. The determination of whether the debtor is or is not covered by Article 41. In this case, the activity will be exercised by the debtor of the date of assuming the obligation;
The main importance of this determination is to establish whether or not the debtor is obliged to declare itself bankrupt and, if necessary, to resolve regarding the appropriateness of pursuing the opening of the rating process of bankruptcy.
Given the relevance of the items listed, the legislature granted special appeal for reinstatement to achieve change in the rating of the debtor, in the event that the latter may have been wrong in the bankruptcy
2. The appointment of a provisional liquidator of a head and deputy and ordered that the trustee will seize all assets of the bankrupt, his books and papers, low inventory, and he is given, for this purpose, the assistance of Forces for the immediate boss, with the display of the authoritative copy of the declaration of bankruptcy;
As anticipated in dealing with the bankruptcy petition, the proposal for a trustee and a deputy, would require the court to appoint these trustees and the quality shown. The court can only review that actually have attributed the inauguration, having been deprived of the right to elect the trustee of which was fitted prior to the amendment introduced by Law 20,004.
In this issue, in short, there are two parts:
a) The appointment of trustees and alternate, who shall be treated as provisional and shall hold office until the first meeting of creditors, at which time, that body shall ratify the decision wholly or partially, or in his absence, designate those that will perform this function (number 2 of art. 108) unless, in the liquidator’s account it appears that the likely product of the realization of the assets of the bankrupt not exceed 1000 UF, an event in which the provisional liquidator shall take over as final and settle the assets in the most appropriate for the interests of the masses, not later than 6 months. (first paragraph of Article 109)
b) The order given to the trustee for it to seize the assets of the bankrupt, books and documents in inventory, resulting in the book of bankruptcy administration, and even being able to obtain assistance from law enforcement, the mere display of the declaration bankruptcy in order to carrying out this action.
The seizure is found regulated in articles 94 and following, and not being the trustee certifying officer has to be accompanied by one. Usually use the services of the Secretary of the Tribunal.
For seizure must understand the significance material legal process through which the trustee, assisted in the manner indicated, access to material possession of such property and mark the beginning of the first and most important effect of bankruptcy, known as detachment. Thereafter, the trustee under the responsibility of making the preservation, custody and administration of the assets of the ruling affects competition.
3. The order of the post and telegraph offices to the trustee and telegraphic correspondence which is the failed recipient, for purposes of the provisions in item 5 of Article 27;
Item number 5 27no only empowers the trustee to open correspondence with court intervention failed, and retain the letters and documents relating to business bankruptcy, but as an obligation is imposed according to the need to represent the general interests of creditors with regard to bankruptcy and the rights of the trustee.
Mere legal regulation consigning such obligation and power was insufficient to enable the trustee could carry out that task, so it joined the ruling, the court order brewing commented, enabling run with the help of the police bearing only the failure.
That power is an exception to the general guarantee of the inviolability of correspondence enshrined in the number 5 of article 19 of the Constitution of the Republic of Chile, which is justified by reference to the general interests of society and, despite the exception , covered by the intervention of bankruptcy judge in the process of opening the mail.
As a rule of exception, must be interpreted strictly, in other words, only the case referred to in the Act which refers only to the correspondence atingentes to businesses involved in bankruptcy proceedings, and release it, moreover, the number 5 Article 27.
4. Order to accumulate to the bankruptcy all the failed trials that are pending in other courts of any jurisdiction which may affect their property, unless legal exceptions
This provision constitutes the practical application of the universality principle laid down in Article 1, while the bankruptcy proceedings sought to be the one to which they are concentrated all efforts to make the assets of a person, to provide for the payment of its debts the circumstances and manner prescribed by law.
All issues they say are linked to the failed business relationship with the bankruptcy, must be heard before the same court, following a pre trial system designed, highly qualified legal exceptions, thus avoiding inconsistency between judicial decisions.
5. The warning the public not to pay or deliver goods to the bankrupt, on pain of invalidity of the payment and delivery, and order people who have property or papers belonging to the bankrupt, to bring them, within three days, available to the trustee, under penalty of being held by accomplices or accessories in bankruptcy;
Article 72 provides:
Are unenforceable acts and contracts that failed executing or sentencing after declaring bankruptcy in relation to the assets of the estate, even if there has been practiced for entries in the respective registers of the Real Estate.
Accordingly, and taking the view that legal principle that prevention is required to consider the sentence serves or is intended primarily to protect the interests of third parties in order to avoid losing money by doing acts or contracts, ultimately have no effect whatsoever to be unenforceable if they touch the assets of the estate.
On the other hand, protect the interests of creditors, so they are not increased appropriations allocated to the competition and prevent the bankrupt, given the situation of economic distress, squandered the goods involved in the process.
Finally, it also puts into practice the principle of detachment, by virtue of which the administration and disposition of assets of the failed pass to the trustee, since along with the order given to the latter to make the general confiscation of property and books of the failed implies an order to the others to make available to the trustee who held by it.
6. Order to make known to all creditors resident in the territory of the Republic to have a period of thirty days from the date of publication of the sentence, to be presented with documents supporting their claims under penalty that will affect the outcome of the trial without further summons;
After notification of the decision of bankruptcy to creditors, is initiated within the law gives the latter to intervene personally in the bankruptcy proceeding to assert their rights.
For this reason the decision of bankruptcy, in fact, provides the order to do so by extending the effects of the competition to third parties remain marginalized from it, without a new subpoena, says the law, rather alludes to another warning duly notified.
7. The order of notice, by registered airmail letter, bankruptcy creditors located outside of the Republic and send it within the period specified in the preceding number increased by the appropriate siting to be expressed in every letter to appear at trial with the documents supporting their claims, under penalty indicated in the preceding paragraph;
Notifications are legally permissible so-called personal, by ballot, by the State Journal or warnings. For this reason, in the interests of the singularity that is of this particular procedure and extent of its effects erga omnes, awarded by the legislature, it was essential to give the widest publicity to its issuance in order to prevent harm to others not aware of their existence .
Thus, not only opt for the usual and customary notice to the bankrupt, in addition to the notification messages for other people, but generates this particular alternative of sending notification registered airmail letter to creditors residing outside the Republic of Chile.
8. The order of the bankruptcy record in the Register of interdiction and prohibition to transfer of the Real Estate Department that has been declared bankrupt and the Conservatives for each property belonging to the bankrupt, and
We have seen on other occasions that the formalities may be required by the legislature by way of solemnity, testing, or between such advertising and we found the registration formalities in various public records, as happens with the property, mortgages, liens, prohibitions, and other litigation.
In this scenario, precisely, the entry in the Real Estate and specifically in the Register of Bans and prohibitions addresses the need to give the widest possible publicity to the enactment or commencement of the bankruptcy, which also takes into account the provisions in Article 72, as punishable acts and unenforceable contracts after the bankruptcy by the bankrupt, as they say regarding the assets assigned to the contest.
In this way, it takes extreme security for all people found out about the formal launch of the competition by preventing damage caused to third parties are unaware or aware of the bad state of affairs of the bankrupt.
9. Precise indication of the place, date and time will be held the first meeting of creditors.
This last provision should contain the statement that declares bankruptcy summons to mind the most important meeting to be held by the creditors, since at that time need to consider various matters particularly relevant to the final destination of the bankruptcy, including the election of trustees and, similarly, define the cost of its intervention and its advisers, to approve the implementation plan assets, and so on.
71.Forma notify the bankruptcy ruling.
As required by Article 54, this decision must be notified to the bankrupt, creditors and third parties through a notice.
Remember that article 6, provides that whenever the law or court order that a resolution be notified by notices, shall be deemed to be published a notice in the Official Journal. Notice, the text approved by the court, contain an abstract of the petition and complete copy of the resolution, unless the law or the court otherwise.
However, it is also necessary to notify those who must comply with court orders, such as Article 55 appears in the following words:
Pronounced the sentence immediately declare bankruptcy, the court clerk will take care to be reported, as soon as possible, the provisional liquidator, and alternate.
The secretary may notify the care themselves or by entrusting another minister of faith.
We encountered a situation that, despite being treated by civilian courts, not the ruling principle of passivity, on the basis of cautious interest. The legislature requires the Secretary of the judges to call for notifying those officials or straight, report them.
72.Recursos against the decision which declares bankruptcy.
11.5. Appeals against the decision which declares bankruptcy
To adequately address this point, we must distinguish at least two possible scenarios.
11.5.1. Judgement declaring bankruptcy at the request of the debtor or one or more of its creditors or ex officio, except in the case which we discuss in the next section.
11.5.1.1. General appearance
The resolution welcomes the bankruptcy petition making room to fight the respective statement, or because access to the request of the debtor or one or more creditors is, finally, because the court declared ex officio, is always in the situation covered Article 56 of the LQ:
Against the decision to declare bankruptcy may be brought only replacement special appeal referred to the following articles.
In other words, there is no further appeal against that ruling, which we have described as definitive, that the special replacement.
11.5.1.2. Special Appeal for review.
This particular form of appeal against this court decision is found in its structured and orderly procedure in the following precepts:
Article 57:
The bankrupt, creditors and other interested parties may request the court, fatal within ten working days from the notification referred to in Article 54, which reset the resolution declaring bankruptcy, leaving no effect or corrected Concerning the determination referred to the number 1 of Article 52. This correction may also be requested by the trustee.
The special appeal of replacement will be processed as an incident. It will be part he did so may also be pursued and the bankrupt, which has filed for bankruptcy and the trustee.
Other creditors and interested parties may intervene.
If during the execution of special resource replenishment orders the suspension of proceedings or is rendered injunction after the seizure of goods, this shall not prevent the trustee to perform all acts of administration necessary for the proper conservation assets of the bankruptcy. Up to the court that the audience has given verbal resolve any dispute arising between the trustee and the petitioner. The trustee may only sell goods exposed to near-term deterioration, without prejudice to the debtor with the consent or judicial authorization before the latter’s refusal may also sell the assets subject to impairment or imminent conservation wasteful. If the suspension or injunction is granted before the seizure of property, the resolution shall provide that the trustee shall act as auditor, with an indication of the powers that be premunity. The remuneration of the liquidator will be established in the same resolution and shall not be less than 75% or higher than the total remuneration of the manager or legal representative of the bankrupt. In other cases the same court rules in consciousness.
Article 58:
The decisions issued during the processing of replacement special proceeding shall be final.
The decision to house the replacement may be appealed in both effects.
In summary:
1. The action is, anyone who is interested in this, particularly, the bankrupt, creditors, third parties and the trustee. The latter is empowered only to implore the purpose of changing the rating of the bankrupt.
2. The deadline for instituting or deduct is ten working days from the publication of the notice referred to in Article 54.
3. Its purpose may be to claim to rescind the state of bankruptcy or alter the characterization of failure.
4. Is processed as an incident and intermediate resolutions are final.
5. The trustee may continue to operate despite the special proceedings for reinstatement, unless during the pendency of the appeal is ordered to suspend the proceedings or may render injunction.
In our view, this situation corresponds to distinguish two cases:
a) If the seizure was made and
b) If it is not yet accomplished.
The attempt in the same order.
a) If the seizure has been made:
General Rule: The Trustee may execute all acts of administration for the proper conservation of the assets of the bankrupt.
Special situation: For Sale. Only have the power to sell the property liable to near-term deterioration.
However, you can sell the property subject to depreciation or wasteful imminent conservation agreement of the debtor or the court, should it refuse.
Conflict: The court declared bankrupt shall have jurisdiction in hearing verbal, any dispute arising between the trustee and the petitioner.
b) If the seizure has been made:
General rule. The resolution which orders the suspension of the proceedings or grant the injunction will be established that the trustee will act as auditor setting its powers.
The remuneration of the liquidator will be established in the same resolution and shall not be less than 75% or higher than the total remuneration of the manager or legal representative of the bankrupt. In other cases, the court rules in consciousness.
6. The decision to house special appeal is appealable replacement both effects. We must remember, in any case, that bankruptcies have priority in processing to the Iltma. Court of Appeals.
Nonetheless, some have chosen to raise the background to the superior by way of petition of complaint, with mixed success, depending mainly on the person who brought it and the echo of the court which has the procedural basis to justify such undertaking that, clearly inappropriate and undermines the purpose of the contest if, in addition, that resource is accompanied by a request for an injunction and it ultimately is issued.
This application for review has been described as special, according to the following reasons:
1. The application for review must, as a rule, against orders and decrees, however, in this case we find that through it is contested a final decision, which involves detachment exceptions the principle governing the activities of the courts .
2. The deadline for filing an administrative appeal is usually five days and, in some cases three, but in this appeal reaches within 10 working days.
3. The regular administrative appeal suspends the effect of the contested decision, not the case with special appeal for reconsideration, which not suspended.
4. The regular administrative appeal may be filed at any time when it is based on new information, which does not happen with special appeal for review.
5. The regular administrative appeal is a particular form of processing, however, the special appeal of replacement is subject to the handling of incidents.
6. Finally, the remedy of study is special because of the persons to whom the legislator recognized as legitimate holders or in active cause thereon.
Under this prism Juan Esteban Puga Vial says that in reality, the resource simply be a mechanism to challenge a judicial decision, but rather for the right to object derived from this unique way for making a parallel with the executive action and the right of opposition to the execution there referred to, which makes up a valid point but not too quiet.
11.5.2. Judgement declaring bankruptcy because it was rejected the transfer of property.
This situation is governed by Article 252, as follows:
The decision to reject the transfer and declare bankruptcy is not open to the special appeal for reinstatement, but may be brought against him on appeal.
11.6. Appeals against the decision to declare bankruptcy rejects
Whenever the court does not give rise to declare bankruptcy requested, we are in the situation envisaged in Article 59que provides:
The decision to deny in the declaration of bankruptcy is not open to the special appeal of replacement referred to this law, but will always appealed to both effects.
Not having made any distinction between those sought by the debtor from seeking to cause one or more creditors, we must infer that the rule is common to them all.
The above is consistent with that reported in the previous section, in the event that the special remedy of reinstatement is received and, therefore, modified the sentence to be going bankrupt without effect, instead, rejected the request that be declared bankrupt.
In this event, for work of special appeal for reconsideration, the petitioner is forwarded to the same procedural position held by those who support the court rejected his request to declare someone bankrupt.
12. Effects of the Bankruptcy Case.
Determined by its intention to restore the commercial, paying creditors according to their legal priority and protecting the debtor’s assets, according to serve the above purpose, the legislature created several immediate referrals, retroactive and future.
These consequences also say why the person of the debtor and its property, the person in the creditors and third parties.
In the words of Joaquín Garrigues, by this sentence the debtor is separated from the management of their assets, so it can not increase its debt with new debt, or diminished by any other existing assets.
To arrange to create an instance of creditors to determine its identity and nature of the loans will, recognizing them as a body in the form of meeting of creditors, to make decisions intrinsic to the mass, primarily those relating to their conservation and production .
In various laws, bankruptcy is the failed (bankrupt debtor) as a person who has lost the benefit of the presumption of good faith and such a predicament appears reasonable in view of the procedural status testified against him, due to bad state of its business, regardless of the degree of responsibility that can fit into the event.
Special 73.Recurso replacement. Who can file it and how is it processed?
Article 57 of the Bankruptcy Act
The bankrupt, creditors and other interested parties may request the court, fatal within ten working days from the notification referred to in Article 54, which reset the resolution declaring bankruptcy, leaving no effect or corrected Concerning the determination referred to the number 1 of Article 52. This correction may also be requested by the trustee.
The special appeal of replacement will be processed as an incident. It will be part he did so may also be pursued and the bankrupt, which has filed for bankruptcy and the trustee.
Other creditors and interested parties may intervene.
If during the execution of special resource replenishment orders the suspension of proceedings or is rendered injunction after the seizure of goods, this shall not prevent the trustee to perform all acts of administration necessary for the proper conservation assets of the bankruptcy. Up to the court that the audience has given verbal resolve any dispute arising between the trustee and the petitioner. The trustee may only sell goods exposed to near-term deterioration, without prejudice to the debtor with the consent or judicial authorization before the latter’s refusal may also sell the assets subject to impairment or imminent conservation wasteful. If the suspension or injunction is granted before the seizure of property, the resolution shall provide that the trustee shall act as auditor, with an indication of the powers that be premunity. The remuneration of the liquidator will be established in the same resolution and shall not be less than 75% or higher than the total remuneration of the manager or legal representative of the bankrupt. In other cases the same court rules in consciousness.
Summary:
1. The action is, anyone who is interested in this, particularly, the bankrupt, creditors, third parties and the trustee. The latter is empowered only to implore the purpose of changing the rating of the bankrupt.
2. The deadline for instituting or deduct is ten working days from the publication of the notice referred to in Article 54.
3. Its purpose may be to claim to rescind the state of bankruptcy or alter the characterization of failure.
4. Is processed as an incident and intermediate resolutions are final.
5. The trustee may continue to operate despite the special proceedings for reinstatement, unless during the pendency of the appeal is ordered to suspend the proceedings or may render injunction.
74.Recursos against decisions during the processing of special appeal for review.
Article 58: The decisions issued during the processing of replacement special proceeding shall be final.
The decision to house the replacement may be appealed in both effects.
The decision to house special appeal is appealable replacement both effects. We must remember, in any case, that bankruptcies have priority in processing to the Iltma. Court of Appeals.
Nonetheless, some have chosen to raise the background to the superior by way of petition of complaint, with mixed success, depending mainly on the person who brought it and the echo of the court which has the procedural basis to justify such undertaking that, clearly inappropriate and undermines the purpose of the contest if, in addition, that resource is accompanied by a request for an injunction and it ultimately is issued.
75.Situación the trustee and its performance if ordered suspension of proceedings or injunction in the special appeals procedure replacement.
In our view, this situation corresponds to distinguish two cases:
a) If the seizure was made and
b) If it is not yet accomplished.
The attempt in the same order.
a) If the seizure has been made:
General Rule: The Trustee may execute all acts of administration for the proper conservation of the assets of the bankrupt.
Special situation: For Sale. Only have the power to sell the property liable to near-term deterioration.
However, you can sell the property subject to depreciation or wasteful imminent conservation agreement of the debtor or the court, should it refuse.
Conflict: The court declared bankrupt shall have jurisdiction in hearing verbal, any dispute arising between the trustee and the petitioner.
b) If the seizure has been made:
General rule. The resolution which orders the suspension of the proceedings or grant the injunction will be established that the trustee will act as auditor setting its powers.
76. Why the appeal against the order of failure is classified as special?
This application for review has been described as special, according to the following reasons:
1. The application for review must, as a rule, against orders and decrees, however, in this case we find that through it is contested a final decision, which involves detachment exceptions the principle governing the activities of the courts .
2. The deadline for filing an administrative appeal is usually five days and, in some cases three, but in this appeal reaches within 10 working days.
3. The regular administrative appeal suspends the effect of the contested decision, not the case with special appeal for reconsideration, which not suspended.
4. The regular administrative appeal may be filed at any time when it is based on new information, which does not happen with special appeal for review.
5. The regular administrative appeal is a particular form of processing, however, the special appeal of replacement is subject to the handling of incidents.
6. Finally, the remedy of study is special because of the persons to whom the legislator recognized as legitimate holders or in active cause thereon.
77.Recursos against the decision which declares bankruptcy because it was rejected the transfer of property.
Is regulated by Article 252, as follows:
The decision to reject the transfer and declare bankruptcy is not open to the special appeal for reinstatement, but may be brought against him on appeal.
78.Recursos rejects ruling against declaring bankruptcy.
Article 59 which provides:
The decision to deny in the declaration of bankruptcy is not open to the special appeal of replacement referred to this law, but will always appealed to both effects.
Not having made any distinction between those sought by the debtor from seeking to cause one or more creditors, we must infer that the rule is common to all
79.Clasificación of the effects of bankruptcy.
· Attend to their validity over time, these effects can be classified as follows:
1. Immediate, are those that begin to take effect from the moment when bankruptcy is declared.
2. Retroactive, covering a defined period prior to the bankruptcy and therefore governed backward from the date of its declaration, including not only the integration efforts or recovery of assets of the bankrupt.
· Attend to whether these effects serve the older of the bankrupt or his property, it is possible to group them as:
1. Personal: these consist of disabilities set against the bankrupt and the qualification process of bankruptcy, if it satisfies one of the qualifications mentioned in Article 41.
2. Materials, are classified as such those relating to the assets of failed as, primarily, with detachment and those affecting creditors and third parties, as they lose certain rights and others are anticipated.
80. What debtor is entitled to food processing?
This matter is found regulated in Article 60, with these words:
A debtor that is not included in Article 41 shall be entitled to mass food will he and his family. Also have this right, the debtor referred to in that article, if any applied for bankruptcy.
The maintenance responsibility will be suspended if it failed against the order for commencement of trial, and will cease if ultimately doomed by faulty or fraudulent bankruptcy or any of the offenses referred to in Article 466 of the Penal Code.
The amount of food is determined by the court hearing the bankruptcy hearing the trustee and creditors.
The application of the bankrupt or trustee will be notified in person or by ballot and the creditors, notices.
(Article 41: The debtor exercising a commercial, industrial, mining or agriculture, will seek a declaration of bankruptcy later than fifteen days from the date of cessation of payment of a commercial obligation.)
Thus, the first distinction that derives from this paper is whether we are dealing with a debtor to Article 41 or not.
The first food should be entitled to the extent they have fulfilled their obligation to apply its own bankruptcy, even if they said that this should be made within the period provided for in this legal provision.
The rest of the debtors declared bankrupt foods have the benefit of himself and his family.
In both cases, the benefit is ordered suspended at the opening of the trial and lose if convicted on any of the forms of fraud under Article 466 of the Penal Code.
The bankruptcy does not automatically lose the right to food of the bankrupt and his family as somehow implies that your creditors have heard about the poor state of its business and has gone even further, to suggest a system to solve the distressing situation that everyone goes through.
Food is determined by the bankruptcy court, after hearing the trustee and creditors, but did not find any mention in the law regarding the quality of these foods, in other words, if they are congruous or necessary, nor from what point are due.
91.Desasimiento. Concept.
The need of the bankrupt and his family to receive food from the time arises as a consequence of detachment or suspension of the administration of the assets subject to competition.
The above makes sense to view that article 64, which refers to the effect of detachment, refers to food in that case, become congruous as we can infer from the final sentence of paragraph four:
The court, after hearing of the trustee and the bankrupt, determine the share of the fruits that failed to correspond to their needs and those of his family, having regard to their social status and the amount of assets under intervention.
Definition: Álvaro Puelma Accorsi, is an immediate effect of the declaration of bankruptcy, under which the bankrupt is disqualified to manage and dispose of the assets assigned to the competition authority to pass automatically to the receiver, which replaces and represents.
Raúl Varela Varela: The detachment is a kind of general but that paralyzes the powers of arrangement and enjoyment that the bankrupt had before bankruptcy, as attributes of his possession for delivery to creditors to be paid their claims.
In short: The detachment is an immediate effect of the resolution declaring the bankruptcy court by which the administration of the assets subject to competition by the judicial and extrajudicial representation of the bankrupt on them, passes to the trustee, being based on the debtor , trustee and creditors, the power of disposition is in effect as bankruptcy.
(I put, just as the two definitions just in case)
92.Extensión of detachment.
Only deprives the unsuccessful management and disposition of property, but this does not stop owning them.
Following this predicament is possible to postulate that the debtor retains the bare ownership and, therefore under this basic right as a natural interest in the underlying bankruptcy proceeding, is entitled to urge that conservative measures are granted the assets subject to competition if the Trustee has shown negligence in this regard.
They just say regarding the inability for the failed arising regarding the ability to manage and dispose of assets subject to competition, which passes to the trustee as of right, is its immediate legal basis in Article 64 paragraph two, by requiring following:
The detachment does not transfer ownership of the assets of the bankrupt to his creditors, but only the power to dispose of them and even paid off their loans.
This legal aspect or loss of the right to manage and dispose comprises two groups of events:
a) Acts court and
b) legal instruments.
a) Acts court.
This involves, in this area, the bankrupt is unable or unfit to dispose of their goods and fruits, except those indefeasible.
The power to administer passes automatically to the trustee who must be exercised in accordance with bankruptcy law, this means that it must not exercise this administration as an agent but due to management in order to increase the property, then pay your product to creditors.
(With respect to point b) will the response of paragraph 94)
93. What if the bankrupt has assets sentencing after declaring bankruptcy?
Article 2467 Civil Code states that are void all acts performed by the debtor relating to property that has been transferred, or that competition is open to the creditors.
Article 72 provides:
Are unenforceable acts and contracts that failed executing or sentencing after declaring bankruptcy in relation to the assets of the estate, even if they are not practiced entries in the respective registers of the Real Estate.
Currently, then, the penalty is not void but unenforceable, though not marked specifically as to who are unenforceable such acts and contracts, but it becomes as a consequence of the context of the law that a person seeking to protect the penalty is the mass of creditors affects the competition.
94. How does the detachment for judicial acts?

Judicial acts.
On the legal front the detachment means that once the bankrupt bankrupt automatically emerge substituted, being replaced by the trustee failed. The latter will take his place, procedurally speaking, since the failed happens to be prevented from acting as both the defendant and plaintiff.
Regarding the failed is not a failure as some argue.
Scope: Art. 64 subsections 3 and 5 indicates the extent of the detachment at the judicial level. Applies only to do with property included in the bankruptcy, as its management and conservation concerns, such as the reintegration of the estate or that pass protection, ipso jure, to the trustee.
This effect is not so extensive as to prevent any action by a failure, because it is authorized to intervene as a third party.
Thus, in the court order, is outside the scope of detachment and, therefore, the failed fully preserved all its powers in respect of the following:
1.-If the bankrupt was subject to legal action in relation to goods not included in the mass, must deal directly against him.
2.-The failed retains its ability or power to stand trial in the case of personal rights, as, for example, the recognition of a child, denial of paternity, annulment of marriage, etc.. (Art. 64 inc. 3.) However, as the final paragraph of art. 64 the trustee may act as an adjuvant in trials of separation of property and divorce in which the bankrupt has the quality of defendant or plaintiff.
The actions to pursue criminal responsibility are very personal, unless you intend to recover property.
In this sense, the case has said the school management notification check is a protest of preliminary due diligence in a criminal trial, so there is no impediment to report the protest to the bankrupt in person, with the reserves we have done previously, the sense that it is more advisable to notify them, in other words, both the bankrupt and the trustee.
95. When is the detachment?
Discussed in the preceding paragraphs that the detachment formed an immediate effect of bankruptcy, is automatic, requiring no other judicial decision that is not filing for bankruptcy, even before being notified, an issue open to question, from what prevented in Article 38 of the Code of Civil Procedure, but it is clear the root given the clear wording of the first paragraph of Article 64.
Pronounced the declaration of bankruptcy, the bankrupt is inhibited full administration of their present, excluding those which are indefeasible.
Thus, the law expressly provides that resolution effective from the date on which it was issued, unlike the general rule under Article 38 of the Code of Civil Procedure, in the sense that the judicial decisions take effect only from legal notification.
* But also, this effect is temporary, as it stipulates the second paragraph of Article 64, while only hard … to pay their claims.
96. What is the seizure and how it is done?
As a derivation of the above and the necessity of the trustee to account for the integrity and fate of assets taken into administration, there is the imperative to define and, more than that, where possible, specify the things on which rests their liability, which shall be seized and, then, to make the inventory mentioned in articles 94 and following, and must ensure the continuance or maintenance of this inventory through measures such as the divestment of assets acted in the hands of the bankrupt, the closing of establishments, the affixing of stamps, delivery of goods by a third party trustee, etc …
97.Bienes within the detachment.
For the purpose of study, there are three categories of goods:
a) Present. Shaped by those belonging to the bankrupt in any form and are in their heritage at the time of the bankruptcy filing.
Also appropriate to consider under this category of goods belonging to the debtor who is in the possession of another, in other words, it makes no difference to this conceptualization that the bankrupt has such property by himself or by another that stop your name.
The time to determine if we are dealing with present property is bounded by the date of the declaration of bankruptcy, as warned by Article 64.
b) that the bankrupt, not wield its dominance, manages and has its legal usufruct.
According to matrimonial and custody of the husband and, where appropriate, the parent holds the administration of the estate of his spouse and their dependent children, enjoying their legal usufruct to supply family needs and lower.
In this context it was necessary to resolve what happened to those assets to be declared bankrupt and the bankrupt, administrator and usufructuary of them.
The solution to this nuisance is found in Article 64, subsection 4, to which we refer, in relevant part, to deal with foods due to the failure.
The full text of this subsection insofar as it relates to the issue at hand is:
The administration retains the failed personal property of women and children, which has the legal usufruct, shall be subject to the intervention of the trustee during the subsistence of the right of a husband, father or mother flaw. The trustee shall ensure that the fruits that produce such goods fluids entering the body, less legal or contractual charges levied on it. …
Also deducted from the assets under management and intervention is legal and conventional loads imposed that the law authorizes the person to ask based on these assets, alimony, which becomes incompatible with the right foods that we saw earlier .
c) Future. Are considered as such, the following:
-Acquired gratuitously. Contemplael these the first paragraph of Article 65.
The detachment also covers property acquired by the bankrupt future free of charge, but not extinguish the liability of the charges that have been transferred or transmitted, without prejudice to the rights of creditors hereditary.
“Purchased for consideration, these are kept by the bankrupt, but creditors may request that the administration is subject to intervention by the trustee for the proceeds of them go to mass, as provided in paragraph two of Article 65 provision we had transcribed in relation to food but I will reiterate for clarity of presentation:
The future management of property acquired by the bankrupt for valuable consideration subsequent to the declaration of bankruptcy, may be subject to intervention, and creditors are only entitled to the net profits obtained, but must be a failed you need for your food, as in the case of paragraph four of the previous article.
98. Assets excluded from the detachment.
There are three groups of goods that enter the body:
1 .- indefeasible,
2 .- The others, which may be subject to repossession or incidental action in case the trustee for the seizure and error which is only under management.
3 .- The future for consideration, with the restriction of Article 65.

99. Difference between attachment and detachment.
There is more of a difference:
1 .- The unique property lies however, determined individually. The detachment, however, rests on a legal universality, on a set of goods.
We therefore have no need for a minister of faith individualizes the goods to formalize.
2 .- The law allows the rearrest of the goods, but goods could fall into another detachment, by its universal character, as well as excluding other contests.
3 .- But the power of disposal for the national court, the court, the use and enjoyment is reflected in the management of real singular by the depositary.
Detachment in the power of disposal is held by the mass of creditors, organized together, the use and enjoyment is reflected in the administration of the trustee.
4 .- The penalty for the sale of the property seized is unlawful objective absolute nullity, Art 1464 No. 3 CC
The penalty for the sale of goods is the unenforceability disempowered.
100.Invariabilidad of appropriations. Meaning and consequences.
As mentioned in Article 66, the claims are frozen at the date of filing for bankruptcy, what the legislature expressed in the following terms:
The decision declaring bankruptcy irrevocably fixes the rights of all creditors in the state who had the day of delivery, without prejudice to cases specially provided by law.
The derivations of this paper are:
a) No creditor can improve or alter the status or the amount of credit after declaring bankruptcy.
b) Only persons who are able to prove that had the status of creditors before the bankruptcy or during her stay in a position to participate in the proceedings.
This ultimately means that the credits or rights of creditors will be fixed and immovable from the date that sentence is declared bankrupt.
Examples: wage claims or that refer to workers who lose their jobs and see his contract terminated by reason of the claim in bankruptcy of their employer.
The consequences of this invariance are derived mainly refer to the creditors according to the following items:
Article 67:
Under the bankruptcy filing, are due and payable in respect of the bankrupt, all debts liabilities, for the sole purpose of which creditors can intervene in the bankruptcy and receive the dividends corresponding to the current value of their claims, plus the adjustments and interest allocated to them, from the date of the declaration.
The present value of national currency indexed loans, not due to the date of filing for bankruptcy and accrued interest, will be the principal plus the agreed adjustment and interest accrued to date of the declaration.
The present value of national currency indexed loans not due to the date of filing for bankruptcy and does not earn interest, will be the principal plus the agreed reset date of the declaration.
The present value of non-indexed loans in local currency, not due to the date of filing for bankruptcy and accrued interest, will be the principal plus interest accrued to the date of the declaration.
The present value of non-indexed loans in local currency, not due to the date of filing for bankruptcy and not accruing interest, be determined by discounting the interests of capital flows to money lending operations are not indexed from the date of the declaration until the day of the respective maturities.
If it is not possible to determine the indexation or if it has lost its validity, shall apply the provisions of paragraph four of this article.
Although the enforceability of which this article refers only to the bankrupt, whichever is acceptor of a bill of exchange, the drawer of a bill not accepted or subscriber of a note, others required to be paid immediately.
In the same direction indicated by the above provision found in Article 68 in both reads as follows:
Under the bankruptcy filing and the date of this, the debts of the bankrupt, and due date in accordance with the preceding article:
1. Interest shall be readjusted and as agreed at the convention, in the case of the second clause of the preceding article.
2. Will be readjusted as agreed, in the case of the third paragraph thereof, and
3. Current interest-bearing credit operations money is not indexed in the case of the fourth and fifth paragraphs of the preceding article.
The liquidator may challenge the agreed interest in the case of overestimation.
The foreign currency obligations in accordance with Decree No. 471, Ministry of Economy, Development and Reconstruction, 1977, shall be paid in the same currency stipulated in the Convention shall bear the interest agreed on it.
Adjustments and interest, if any, shall enjoy equal preferences and privileges that the respective capitals.
Finally, in the field of fixing claims at the time it declared bankruptcy, we find Article 69 which states:
The bankruptcy filing prevents any compensation that has not operated before by the ministry of law, including the mutual obligations of the bankrupt and creditors, except in the case of related obligations under the same contract or a single negotiation and enforceable even if different terms.
101. First rule that implements the stability.
The basis of all regulations is in the expiration of the time, being due and, therefore, required in respect of the bankrupt, all debts affected the competition.
102. Effects of time lapse and passive solidarity.
Expiration of term.
First, the bankrupt as principal debtor:
It states that the debts are all passive.
Debts must be faced, in other words, existing credits against the bankrupt and not mere expectations.
Under these markings, it is understood that we are facing a legal rule provides, specifically, the effect of lapse of time or, rather, becomes the practical application of what prevented, in that regard by Article 1496 of the CC to have:
The payment of the obligation can not be expected before the deadline, if not:
1. The debtor become bankrupt or that is in notorious insolvency.
2. The debtor whose bonds, by act or fault, are either extinct or have declined substantially in value. But in this case the debtor may claim the benefit of time, renovating or improving the bonds.
The recently reported case with respect to bankruptcy is broader because it also causes the expiration of the term existence of a factual situation to legal scope, consisting of the notorious insolvency.
It is estimated that a debtor may be in a situation of insolvency noticeable without necessarily incurring a cause of bankruptcy.
Second, the bankrupt is one of many debtors.
The effects of the expiry of the period granted to the bankrupt, leads us to analyze what happens when this is not the only bound, as happens with its obligations as joint simply, subsidiary or joint.
Passive solidarity
The question is whether it corresponds to extend it to other debtors, on the one hand and, secondly, whether the possible inability to pay the bankrupt brings with it some consequences for its participants in debt.
Obviously, it refers to the particularities of the obligation in relation to the debtor (solidarity is passive).
The solution for solidarity is found basically in Article 1522 of the CC to regulate rights arising from the payment of an obligation of solidarity among the various debtors.
In that sense expressed in the final paragraph, that portion of the co-debtor insolvent or fee is shared among all the others in proportion to his, including even those to whom the creditor has waived solidarity.
That provision is consistent with the stated in paragraph one, which corresponds result that the legislator, once one of the joint and several debtors paid the debt or extinguished by any equivalent means of payment, is subrogated to the creditor action all privileges and assurances, but returns to the general rule, in other words, the obligations simply joint.
That first paragraph states:
The obligor has paid the debt, or has been lost by any equivalent means of payment, shall be subrogated to the claim of the creditor with all its privileges and securities, but limited for each of the cosigners of the part or share to have this co-signer on the debt.
It follows that their investors in debt are only responsible for payment to him of the part or share that corresponds to the debt.
This basic principle exceptions are displayed in the second paragraph of that article, which is considering the business for which the obligation was incurred or magazine concerned has interest in only one or some of the participants in it, an event which will be this or these, as appropriate, the primary responsibility for payment and others, are transformed into principal debtors, in other words, sureties.
To have effect: If the business for which it has been contracted joint obligation, involved only one or some of the joint debtors, they will be responsible for each other, the parties or contributions to them in debt, and the other co-debtors be considered as guarantors.
* The expiration of the period, the obligations of solidarity, can be interpreted narrowly or broadly. We estimate that it could only be strictly, precisely, constitute an emergency situation.
* The bankruptcy of one of the joint debtors, only entitle the creditor to enforce its claim against the bankrupt, but lack the right to proceed against others, as the latter retain the benefit of time and therefore, will not be required the obligation.
This interpretation recognizes three bases:
First, the text of Article 1496 of the CC since it only gives this right against the debtor bankrupt;
Second, from the stated in Article 1512 of the CC in that it permits, without conspiring against the existence of solidarity, we find debtors in various legal situations. It emphasizes that, for the thing owed severally by many or many, who will be the same, some may be due quite simply, some in the form of term and, subject to conditions and
Third, by explicitly prescribing and also the final paragraph of Article 67, which only exception to the other obligations of a bill of exchange or promissory note, as follows:
Although the enforceability of which this article refers only to the bankrupt, whichever is acceptor of a bill of exchange, the drawer of a bill not accepted or subscriber of a note, others required to be paid immediately.
Therefore, the expiration of the period must inform the other joint debtors, when the source of their obligation is to intervene in a bill of exchange or promissory note.
In summary, the expiration of the period resulting from the bankruptcy affects only the failed and is not communicated to the rest, with the exception brought it up.
* However, if as a result of the opening of the insolvency of the failed pay joint and several liability, the latter and, consequently, the mass shall be entitled to be subrogated to the creditor’s rights to pursue appropriate parties on that debt to others joint and several debtors in the manner stated. Conversely, if another co-signer pays the debtor’s flaw is apportioned among others, understood that this refers to the balance that has not been possible to resolve the assets of the bankruptcy, as bankruptcy does not conform to a way to extinguish obligations.
Article 144 provides for the rights of creditors of joint obligations to or participate in contests, one or more of the debtors has fallen into bankruptcy, featuring:
The creditor obligations subscribed, endorsed or guaranteed jointly by people failed, may be in all the failures, whether simultaneously or successively, by the nominal value of their claims until payment in full, and part of the dividends that give each .
This means that the failure to verify the claim in the contest obligor of an obligation does not limit or restrict the right of the creditor to present his claim to assert, in other words, verifying, in contests that are open for other debtors supportive of that obligation.
That will do until you receive, in effect, paying your credit and your only restriction is that the right to check will be reduced as a matter of elementary logic, the unpaid portion of your debts.
103.Efecto of the debtor’s bankruptcy in active solidarity.
To be active, it is estimated that active expiration no major consequences for the performance of the obligation.
104.Efecto bankruptcy debts of the debtor subsidiaries.
As an example we have the guarantee contract.
This is one case where the debtor becomes obligated to the creditor in consequence of an event or situation that is foreign.
In general, any significant reduction of the guarantees granted to the creditor the right to require the debtor, an improvement for them to maintain the value of the bond and that this constitutes an effective guarantee in relation to compliance with the principal obligation.
This regulation is understood in connection with a pledge or mortgage as he or encumbered assets are destroyed or substantially damaged, also applies in the event that the deterioration say why personal guarantees which naturally results in a very direct reference regarding the financial condition of the guarantor.
If the guarantor threatens to fall, the legislature granted the right to the creditor to demand an improvement in the guarantee given, which forms the situation covered by Article 2349 Civil Code to require that:
Whenever the surety given by the debtor falls into insolvency, the debtor will be required to provide new security.
However, we found a more radical policy, as happens with Article 2348 of the CC since a person who has not granted bail, is legally obliged to enter into this contract under the following terms:
Is obliged to give security to the creditor’s request:
1. A debtor who has provided;
2. The debtor whose powers decline in terms of endangering show compliance with their obligations;
3. The debtor who has reason to fear that absent the State’s territory with the aim to settle elsewhere, while not enough assets to leave the safety of their obligations.
In situations of economic decline or risk of absence from the country, the legislature supposed to face a stage of bankruptcy, therefore, considered reasonable to grant the creditor the right to demand the creation of the security, but also consider possible that if any bankruptcy, other creditors exercising the right to revoke these contracts whenever they were entered in the given period.
Finally, it is referring to the effects arising from the debtor’s bankruptcy says strengthened in relation to the right to oppose the benefit of discussion that will assist the debtor or subsidiary guarantor.
You must determine whether the collapse of the debtor to enable immediate action against him or the sureties.
The existence of bankruptcy does not conform or is a synonym for non-payment of obligations, so we have a considerable encordio.
In view of the alternative rights which the legislature provides the surety to keep the benefit of discussion that basically consist of the possibility of bringing the creditor the property of the principal debtor, as it prevents the condition 6 th, Article 2358 of the CC could derive it is obliged to await the outcome of the bankruptcy before proceeding against the guarantor, to the extent that this could tick all those that are part of the inventory of bankruptcy.
This interpretation would encourage the stated in Article 2364 of the CC in terms provides:
If the property excuted produced only a partial payment of debt, will, however, the creditor must accept it and will not reconvene the surety but the outstanding.
This way of interpretation is not for the right path, and excuted the goods must meet the requirements laid down in Article 2359 of the CC:
Not taken into account for the excursion:
1 ° The existing property outside the State;
2 ° The property seized or litigation, or claims of doubtful or difficult recovery;
3 ° The property whose domain is subject to a condition subsequent;
4 ° The mortgage debt for preferred stock, the part that seems necessary for full payment thereof.
The assets subject to competition law, are prohibited for this purpose and the differences noted between attachment and detachment, thus, can not be considered as excuted and if the guarantor does not display other than the bankrupt, can not be allocated to the state bankruptcy, secured creditors may enforce the security that personal surety and the guarantor will not have the benefit of discussion.
CC Article 2370 of the Guarantor gives the right of recourse in these terms:
The guarantor will take action against the principal debtor to repay what you paid for it with interest and costs, although the security has been ignored by the debtor.
Shall also be entitled to compensation for damages according to general rules.
But you can not ask for reimbursement of expenses inconsiderate, or those who have suffered before notifying the principal debtor claim brought against the guarantor.
The question is, to determine whether the guarantor can exercise the right provided in the article cited, checking in bankruptcy.
It is thought that the right of return of forms a conditional credit guarantor and, therefore, be performed by the receivables in the bankruptcy by the respective verification.
Once you have paid and credited to the fact in the respective competition, may participate in the distribution of dividends, because in that event, the incident occurred establishing your credit status and became pure and simple.
The need for conditional check in that event from the right of competing creditors that the trustee make the appropriate reservation.
If you wait until the fulfillment of the condition, in other words, the payment to go into bankruptcy with your check, you have two negative consequences:
1. Probably check in an extraordinary way, which is a more wasteful method that routine verification and
2. Can be, even without pay, if at the time of verification have been distributed all available funds resulting from the performance of the assets of the bankrupt.
The loan is conditional on prior payment. Once solved the Escrow credit loans will is pure and simple.
This will be harmonized with the stated in Article 152nd we have referred above:
The creditor may require the allocation conditional on dividends received by him fulfilled the condition, or surrender sufficient bail to return them to the mass, with the current interest, for if the condition is not verified.
105.Segunda a fourth rule that implements the stability.
Second rule. The enforceability only because the purpose of allowing his intervention in the bankruptcy and receive dividends.
Is thought to be difficult to find another effect arising from the enforcement by way of expiration period not to arouse the creditor’s right to participate in the bankruptcy process, as part of the court administrator of the assets assigned to the contest and, in due course , to receive dividends.
Third rule. The credits are estimated at their current value.
The present value of a loan up to an economic concept, making it unnecessary to aggregation plus adjustments and interest allocated to them, from the date of the declaration, as to determine the present value of a loan, it is often necessary to discount adjustments and interest displayed added to it.
Indeed, the present value of credit will be calculated by applying the rules referred to in Article 67 and from the bankruptcy, these debts will be treated equally, according to the rules laid down in Article 68.
Fourth rule. The present value is calculated at the date of declaration of bankruptcy.
First paragraph of Article 67.
In short, we are in the implementation of the pair condictio creditorum omnium, resulted in the adoption of various technical means for comparing the existing loans on a basis of equality in its financial aspects, without prejudice to the statutory preferences, which must be taken in the procedural, in proposing the corresponding allocation of funds.
106.Quinta rule that implements the stability.

Present value of the credits expired in local currency: adjustments and interest. Always run to the declaration or deducted, as appropriate, from it.
1. Adjustment credits pact and interests: capital more such adjustments and interest.
2. Adjustment credits pact but not of interest: adjusted capital.
3. Adjustment loans without agreement but with an agreement of interests: capital plus agreed interest.
4. Free credit agreement and interest adjustment: capital flows less interest to non-indexed credit operations from the declaration to the agreed maturity.
5. If it is not possible to determine the indexation or it lost its force: the current value will be the principal amount, plus accrued and adjustments, if not agreed upon, only the capital.
107.Valorización of adjustment loans and interest pact.
Capital more such adjustments and interest.
Pact 108.Valorización adjustment loans but not interest.
Capital reset.
Credit 109.Valorización without covenant or interest adjustments.
Capital flows less interest to non-indexed credit operations from the declaration to the agreed maturity.
110.Sexta rule that implements the stability.
Treatment of bad debts and updated: governing adjustments and interest agreed upon, from the declaration or interest accruing to non-indexed lending operations, if no such agreement.
Here both the adjustments and interest, although they start running again after the declaration of bankruptcy, in each case, they do not stop the march but to pay, regardless of original maturity.
On the other hand, the second paragraph of Article 68 expressly authorizes the Trustee to challenge the interests should overestimation.
This constitutes an appreciation award given to the discretion and subjectivity of the auxiliary of the administration of justice but that only concerns the possibility to initiate proceedings contesting.
No way this provision is binding on the court ultimately will decide whether or not the interest rate can actually be considered excessive.
111.Séptima and eighth rule that implements the stability.
Seventh rule. Foreign currency obligations are paid in the same currency.
It should clarify how these credits involved in the distribution of funds, since they are not comparable to fix its rate, as they are not reduced to one common denominator, ie to the same monetary unit.
While that must be paid in the same currency, its expression must be considered as a form of adjustments to apply to regard the rules discussed in respect of agreed adjustments, for which it has considered the market values force.
Eighth rule. Preferences and privileges of capital to communicate their benefit adjustments and interest.
The rescaling nominal capital adequacy to real capital, considering the fluctuations of economic variables that affect the value of currencies, consequently, the indexation is not necessarily a value added, can also form a variant of the reduction and is only a way to express the capital.
Interests, make up the civil fruits of capital and, as such, are its accessories, has to follow the fate of this, both in their ventures, such as preferences and privileges, as in their misfortunes, the possibility of not being paid.
112.Novena rule that implements the stability.
From bankruptcy does not operate the compensation, unless they are related obligations under the same legal act, regardless of the maturity mismatch.
This last rule is found in Article 69 which states:
The bankruptcy filing prevents any compensation that has not operated before by the ministry of law, including the mutual obligations of the bankrupt and creditors, except in the case of related obligations of a contract or a single negotiation and even if they are required in different terms.
Thus, the general principle that inspires the bankruptcy law is that bankruptcy does not, since its enactment, operating compensation later.
CC Article 1656 of the compensation is operated by operation of law only, and even without knowledge of the borrowers … and useless it is thought that the clarification of the first part of Article 69, to the extent that the obligations to comply with the requirements under that standard.
If compensation did not operate before the declaration of bankruptcy, this is because the obligations are not met the legal requirements set out, therefore, was improper compensation, being forbidden to operate after bankruptcy.
Yes interest exception to the rule, since they are obligations that do not have commercial autonomy and have been thought to exist and die together, from the beginning, thus ruling out a plot prepared to circumvent the rights of other creditors, which would lead to a form of fraud.