The Judgement of the Provincial Court of Valencia of March 8, 2022 ECLI: ES: APV: 2022:830) reviewed the judgement issued by the Mercantile Court nº.3 of Valencia, from April 22, 2021, which declared the insolvency not guilty, and found it guilty, given that it was proved that some goods and rights of the insolvent party left its estate through an atypical contract of commercial management.
This judgement carried out a meticulous study on complicity in bankruptcy proceedings, in the Third and Fourth Legal Grounds.
I.- Third legal ground. Requirements.
It referred to the Supreme Court Judgment of September 14, 2021 (ECLI: ES: TS: 2021: 3309; Wording of Mr. Vela Torres) that dealt with the figure of the “accomplice” and its distinction with the “affected person”.
This judgement explained that the accomplice is a third party cooperating in a conduct outside the debtor, or those who act for him, which determines the qualification of the bankruptcy as guilty. A person cannot be declared at the same time “accomplice” and “person affected by the qualification” (which is equivalent to responsible author), since “accomplice” is equivalent to “cooperator”, while “affected” is equivalent to “author”.
It referred to both Supreme Court Judgments 5/2016, of January 27 and 202/2017, of March 29, which established the following requirements:
a) The accomplice must have cooperated “in a relevant manner” with the debtor natural person, or with the directors or liquidators of the debtor legal person, to carry out the acts that have based the qualification of the bankruptcy as guilty;
b) The cooperation must have been carried out “with willful misconduct or gross negligence”.
The Court did additionally settle the following requirements:
c) Accurate description of the conduct and legal duties whose action or omission allow to appreciate complicity and generate liability;
d) Said description must be based on a sufficient probative activity;
e) Existence of a clear relationship between the acts attributed to the accomplice and the specific acts of generation or aggravation of the insolvency, which have based the qualification of a guilty bankruptcy;
f) The actions of the accomplices must be directly related to the conduct that has fundamental the qualification of the insolvency proceedings as guilty;
g) Voluntary nature of such conduct or collusion with the bankrupt in the conduct that has deserved the qualification of guilty.
II.- Fourth legal ground. Affected person and accomplice.
Consequences that may arise from the qualification of accomplice.
1) Disqualification.
Reproducing what was established in the Judgment of the Supreme Court, of March 11, 2015 (ECLI: ES: TS: 2015: 1243) and of the Provincial Court of Alicante, of November 25, 2016 (ECLI: ES: APA: 2016: 3103) “it is impossible that as an accomplice one can be punished with disqualification or be sentenced to coverage, because these pronouncements are intended only for the person affected by the qualification.”
2) Loss of any right.
The person affected and the accomplice may be sentenced to the loss of any right they had as bankruptcy or mass creditors, in accordance with the third rule of section 2 of article 455 of the Consolidated Text of the Bankruptcy Law.
3) Coverage of the deficit.
The accomplice cannot be sentenced to such coverage. Nor can a pronouncement of disqualification be issued against him, according to the Supreme Court Judgment of September 14, 2021.
4) Compensation for damages.
For the accomplices, the Law provides a general consequence (loss of any right as creditors in the bankruptcy proceedings) and other particular consequences, depending on their conduct (return of assets or rights, sentence to compensate losses and damages).
The Judgment of the Supreme Court, of June 18, 2020 (ECLI: ES: TS: 2020: 2178) stated that the summon to compensate losses and damages is directed both to the people affected by the qualification and to the accomplices and is consecutive to: (i) the sanction of loss of bankruptcy credits and against the mass; (ii) the sentence to return the goods or rights improperly obtained.
The compensation is a consequence of the pronouncement of restitution and also of other damages, but not of those derived from insolvency (unsatisfied credits), for which only the person affected by the qualification must respond.
Mireia Bosch
Vilá Abogados
For more information, contact:
6th of April, 2023
