La masa patrimonial como parte en el proceso concursal

Abstract

This work aims to fill the gap that exists in Spanish doctrine regarding the idea of giving procedural personality to the the assets of the bankrupt's estate. The goal of our research is, in the first place, to analyse the patrimonial affectation associated with the declaration of insolvency and the disempowerment of the insolvent debtor. The clarification of the effects of this declaration on the acts carried out by the debtor and his assets is an unavoidable priority of this work, as it is directly linked to the problems associated with the subjectivisation of the assets in the insolvency proceedings. Secondly, we will delve into the legal position of the insolvency administration; likewise, into the instrument that makes it possible to explain the full effectiveness of the acts carried out by it in the legal sphere of the insolvent party. It is not unknown that the legal nature of the insolvency administration has been one of the most extensively discussed issues in insolvency matters, with notable efforts of doctrinal clarification, both at a national and foreign level, focused on the study of the figure and its legal relationship with the debtor, the creditors and the insolvency assets. Thirdly, we will look at the interest of the insolvency proceeding, an indeterminate legal concept on which the insolvency process pivots, useful both to express its ultimate purpose and to serve as a decisive ratio in the exercise of the instruments legally predisposed at the service of that purpose. Its delimitation is decisive: it reveals the function that the insolvency assets are intended to fulfil, with separation and autonomy with regard to the subjective interest of the debtor and creditors. The economic function inherent to the assets is connected, fourthly, with the idea of separate assets. This purpose justifies the application of a special discipline for the protection of the objective function that the assets and rights that make up the estate assume after the declaration of insolvency. The detailed analysis of the defining elements of the separation of assets is an obligatory subject of study in this doctoral thesis. Lastly, we will examine the suitability of granting procedural personality to the separate estate, depending on the agreed system of administration and disposal of assets, with a solution with respect to other procedural categories that are linked to the position in the process of the debtor, creditors and insolvency administration, without an adequate response in the current insolvency act. The exhaustive analysis of these elements will allow us to make proposals de lege ferenda in order to clarify, in a definitive manner, the legal-procedural position and the legitimation ad causam of the parties participating in the insolvency activity.