The Insolvency Administration is entrusted with very important functions, which are indicated below, which must be exercised in a collegial manner, except those that the judge individually attributes to any of its members. When the complexity of the procedure so requires, the judge may authorize the delegation of certain auxiliary functions.
The Insolvency Administration’s essential functions are to intervene the acts performed by the debtor in the exercise of its patrimonial faculties or to replace the debtor when it has been suspended in that year, as well as to draft the report of the insolvency administration to which they will join the inventory of the active estate, the list of creditors and, where appropriate, the evaluation of the proposed agreements presented.
The Insolvency Administration will have to pronounce on the inclusion of all the credits revealed in the procedure , both of those that have been communicated in the term and in the form that the law establishes as of those that will result from the books and documents of the debtor or that by any other means appear in the contest. In the list of those recognized, the credits will be classified, according to the law, in privileged persons -with special or general privilege-, ordinary and subordinated.
Bankruptcy administration function
The role of the Bankruptcy Administration is complex, and is composed of various functions that the Law 22/2003, of July 9, Bankruptcy, in its article 33, divided into several categories that are indicated below:
a) Of a procedural nature:
1. Exercise the action against the partner or partners personally responsible for the debts prior to the declaration of bankruptcy.
2. To exercise the actions of responsibility of the juridical person bankrupt against its administrators, auditors or liquidators.
3.º Request, as the case may be, the seizure of assets and rights of the administrators, liquidators, de facto or de jure, general attorneys and those who have had this condition within two years prior to the date of declaration of the contest, as well as the partners or partners personally liable for the debts of the company prior to the declaration of insolvency in the terms provided for in article 48 ter.
4. The request, where appropriate, the removal and cancellation of embargoed attachments when the maintenance thereof seriously hinders the continuity of the professional or business activity of the bankrupt, with the exception of administrative attachments, with respect to which the lifting or cancellation, in no case, in accordance with article 55.
5. To enervate the action of eviction exercised against the debtor prior to the declaration of the bankruptcy, as well as to rehabilitate the validity of the lease agreement until the moment when the effective launching is practiced.
6. To exercise rescission actions and other challenges.
7.º Request the execution of the sentence in case the judge had condemned administrators, attorneys or partners to cover the deficit.
8.º Request the transformation of the abbreviated procedure in ordinary or an ordinary procedure in abbreviated.
9.º Replace the debtor in the legal proceedings in process.
10.º Exercise non-personal actions.
b) Owned by the debtor or its administrative bodies:
1. To carry out, until the judicial approval of the agreement or the opening of the liquidation, the acts of disposition that it deems indispensable to guarantee the viability of the company or the treasury needs that the continuity of the contest demands.
2. Attend the collegiate bodies of the legal person insolvent.
3.º Carry out disposition acts that are not necessary for the continuity of the activity when offers are submitted that substantially coincide with the value given to them in the inventory.
4. Request the judge to revoke the appointment of the auditor and the appointment of another to verify the annual accounts.
5. To assume, after judicial attribution, the exercise of the political rights that correspond to the debtor in other entities.
6. To demand the disbursement of the social contributions that have been deferred.
7.º Rehabilitate loan agreements and other credit in favor whose early maturity due to non-payment of amortization or accrued interest payments has occurred within the three months preceding the declaration of insolvency, provided that the conditions of Article 68 concur.
8.º Rehabilitate contracts for the acquisition of movable or immovable property with consideration or deferred price whose resolution has occurred within the three months preceding the declaration of insolvency, in accordance with the provisions of article 69.
9. Request authorization so that the disabled administrator can continue to head the company.
10. To call the meeting or assembly of partners for the appointment of those who have to fill the vacancies of the disabled.
11.º Grant the debtor the agreement to file claims or appeals, settle, compromise or desist when the litigious matter may affect their assets, except in actions of a non-personal nature.
12. In the necessary competition, substitute the powers of administration and disposition over the patrimony of the debtor in accordance with the provisions of article 40.2 and, in particular:
i) Adopt the necessary measures for the continuation of the professional or business activity.
ii) Formulate and audit the annual accounts.
iii) Request the judge to terminate contracts with reciprocal obligations pending compliance if deemed appropriate to the interest of the contest.
iv) Submission of tax declarations and self-assessments.
13.º In the voluntary contest, intervene the powers of administration and provision on the debtor’s assets in accordance with the provisions of article 40.1 and, in particular:
i) Supervise the formulation of accounts.
ii) Determine the acts or operations specific to the line of business or traffic that, because they are necessary for the continuity of the activity, are authorized in a general manner.
iii) Authorize or confirm the acts of administration and disposition of the administrative body.
iv) To grant the debtor the authorization to desist, to be totally or partially acquitted, and to settle litigation when the litigious matter may affect his patrimony.
v) Authorize the filing of claims.
vi) Presentation of tax declarations and self-assessments.
c) In labor matters:
1. To comply with the judicial resolutions that had fallen on the date of the declaration of insolvency in procedures for substantial modification of the conditions of collective work, collective transfer, collective dismissal and suspension of contracts and reduction of working hours.
2. Request from the judge of the insolvency the substantial modification of the work conditions and the collective termination or suspension of the work contracts in which the bankrupt is the employer.
3. To intervene in the procedures of substantial modification of the conditions of collective work, collective transfer, collective dismissal and suspension of contracts and reduction of the workday initiated during the contest and, where appropriate, to agree on the same with the representatives of workers.
4. Extinguish or suspend the contracts of the insolvent with senior management personnel. 5. Request from the judge that the payment of compensation derived from senior management contracts be postponed until the judgment of qualification is final.
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d) Regarding the rights of creditors:
1º Modify the order of payment of the credits against the estate when it considers it convenient in the terms provided in article 84.3.
2.º Prepare the list of creditors, determine the inclusion or exclusion in the list of creditors of the credits revealed in the procedure, resolve the inclusion of new credits in the list of final creditors and inform about the inclusion of new credits in the list of final creditors before the approval of the proposed agreement.
3.º Request the opening of the liquidation phase in case of cessation of professional or business activity.
4. Communicate to the holders of credits with special privilege that opts to attend to their payment charged to the estate and without realization of the assets and rights affected. 5. To ask the judge to keep the lien in case of sale of goods subject to special privilege.
6. To request the judge to make regular payments of credits in advance when he considers sufficiently covered the payment of the credits against the estate and the privileged.
e) Report and evaluation functions:
1. Present to the judge the report provided in article 75.
2. To carry out the inventory of the active mass with the content of article 82.
3. To propose to the judge the appointment of independent experts.
4.º Evaluate the content of the anticipated agreement proposal.
5. To make the list of final creditors and inventory in accordance with the provisions of article 96.5.
6.º Evaluate the content of the agreement, in relation to the payment plan and, where appropriate, the viability plan that accompanies it.
7. To inform about the sale as a whole of the debtor’s company.
8. Present quarterly reports to the competition judge on the status of settlement operations and a final report justifying the transactions carried out in the settlement.
9. Present to the judge a reasoned and documented report on the relevant facts for the qualification of the contest, with the proposal of resolution of the guilty or incidental contest.
10. To inform before the judge agrees on the conclusion of the contest for the payment of all the credits or for the resignation of all the recognized creditors.
11.º Update the inventory and the list of creditors trained in the procedure in case of reopening.
f) Value realization and settlement functions:
1. Replace the administrators or liquidators when the liquidation phase opens.
2. Present the judge with a liquidation plan for the realization of the assets and rights integrated into the active mass of the contest.
3.º Request the judge the direct sale of assets subject to credits with special privilege.
g) Secretarial functions:
1. Electronic communication of the bankruptcy declaration to the State Agency of the Tax Administration and to the General Treasury of the Social Security.
2. Communicate to the creditors the declaration of insolvency and the obligation to communicate their credits.
3. To communicate to the creditors the list of provisional creditors provided in article 95.
4. Receive credit communications from creditors.
5. To assist the Secretary of the Court in the Meeting of creditors or to preside over it when the judge so decides.