El Concursos de Acreedores

El concurso es un procedimiento judicial que pretende dar solución a la insolvencia del deudor común con la finalidad esencial de satisfacer a los acreedores.

La reforma de la legislación concursal española fue efectuada por medio de la Ley 22/2003, de 9 de julio, Concursal, que entró en vigor el 1 de septiembre de 2004. Como dice la exposición de motivos, de la Ley, el nombre elegido para denominar el procedimiento único es el de «concurso», expresión clásica que describe la concurrencia de los acreedores sobre el patrimonio del deudor común. No se persigue con ello solamente rescatar un vocablo tradicional en la terminología jurídica española, sino utilizarlo para significar el fenómeno unificador de los diversos procedimientos de insolvencia e identificar así gráficamente el procedimiento único, como ha ocurrido en otras legislaciones.

Como también indica su exposición de motivos, la nueva Ley da satisfacción a una aspiración profunda y largamente sentida como es la reforma del arcaico derecho concursal. Se supera así, la pluralidad de instituciones concursales según se tratase, por un lado, de un deudor comerciante (suspensión de pagos y quiebra) o no comerciante (quita y espera, y el denominado concurso de acreedores) y, de otro, que nos encontrásemos antes una situación económica de mera iliquidez (quita y espera, y la suspensión de pagos -aunque ésta con la Ley de Suspensión de Pagos permitía situaciones de insolvencia definitiva) o de insolvencia (quiebra y concurso de acreedores). La nueva Ley instaura los principios de unidad legal, de disciplina y de sistema. Así, la unidad legal se manifiesta en la regulación en un único texto legal, la Ley Concursal, de los aspectos materiales y procesales del concurso terminando con la dispersión legislativa vivida en el pasado en que los procedimientos concursales estaban regulados en la Ley de Enjuiciamiento Civil de 1881, en la Ley de Suspensión de Pagos de 1922, en el Código de Comercio de 1885 e incluso determinados aspectos en el Código de Comercio de 1829.

Tampoco se distingue entre comerciantes y no comerciantes, sin perjuicio de las especialidades propias del estatuto jurídico de los comerciantes, en esencia, la obligación de llevanza de contabilidad y de su inscripción en el Registro Mercantil, además, de la existencia en la masa activa de unidades productivas de bienes o servicios que son tenidas en cuenta a lo largo de toda la regulación Asimismo, como hemos indicado, se instaura un único procedimiento, que sustituye a los viejos procesos concursales (quiebra, suspensión de pagos, concurso de acreedores y quita y espera), bajo el nombre común de concurso,

En esencia, declarado el concurso el procedimiento se desarrolla en dos fases:

  1. la denominada fase común que tiene por objeto la formación de la masa activa y pasiva del concurso. La masa activa está integrada por la totalidad de los bienes y derechos del deudor a la fecha de la declaración del concurso y los que se reintegren al mismo o adquiera hasta la conclusión del procedimiento, con excepción de los inembargables. La masa pasiva se compone por la totalidad de los créditos contra el deudor que no sean créditos contra la masa; y
  2. la fase de convenio o liquidación. Concluida la fase común, el concurso puede desembocar en un convenio con los acreedores -que en caso de convenio anticipado se sustancia paralelamente a la fase común- cuyo contenido puede ser una rebaja de los créditos y/o un aplazamiento para su abono, o bien en la liquidación que consiste en la realización de los bienes del deudor común y pago a los acreedores hasta donde alcance el importe obtenido, todo ello conforme a las preferencias que correspondan a los créditos.

En Vázquez & Asociados, contamos con especialistas que le prestarán un asesoramiento completo en todo lo relacionado con esta materia, informándole de todos los derechos y obligaciones que le corresponden y aconsejándole cual sería la forma más adecuada de proceder en cada caso.

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