4 SEPTEMBER 2002. - An Act to amend the Bankruptcy Act of August 8, 1997, the Judicial Code and the Corporate Code (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - Amendments to the Bankruptcy Act of 8 August 1997
Art. 2. Section 3 of the Bankruptcy Act of 8 August 1997 is replaced by the following provisions:
"If the centre of principal interests of the debtor is located in another Member State of the European Union, it may, if it owns an institution in Belgium, be declared bankrupt in accordance with the provisions of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.
Where a debtor is subject to an open procedure in accordance with Article 3, § 1^er, Commission Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, the essential content of the decision opening the insolvency proceedings and the identity of the designated trustee shall be published in the Belgian Monitor, if it has an institution in Belgium. »
Art. 3. In Article 6 of the Act, the words " referred to in Article 3, § 2" are replaced by the words " referred to in Article 3, paragraph 1^er "
Art. 4. In section 8 of the Act, the following amendments are made:
1° in paragraph 5, the word "8" is replaced by the word "15";
2° to paragraph 7, the first sentence is replaced by the following sentence: "The President may at any time, on written request or, in the event of an emergency, on the same verbal request of the provisional administrators, amend their powers. »;
3° in paragraph 9, the words "of deposit" are deleted.
Art. 5. Article 9, paragraph 1^erof the same law, the words " referred to in Article 3, §§ 1^er and 2" are replaced by the words "subject to section 3, paragraph 1^er "
Art. 6. Article 10, paragraph 1^erthe same law is supplemented by a 3° and a 4°, which reads as follows:
"3° if the company has occupied or occupied staff over the past eighteen months, the staff register, the data relating to the social secretariat and the social funds to which the company is affiliated, and the identity of the members of the committee on occupational prevention and security and members of the union delegation;
4° the list mentioning the name and address of customers and suppliers. »
Art. 7. Section 13, paragraph 2, of the Act is supplemented as follows: "The exploit of meaning also contains the text of section 53".
Art. 8. In section 30 of the Act, the following amendments are made:
1° to the article :
(a) the words "At the time of their entry into office, the designated curators shall be sworn before the Commissioner in the following terms:" shall be replaced by the words "At the time of their registration on the list, the curators shall be sworn before the President of the Court in the following words:";
(b) the words "mijn opdracht" are replaced by the words "mijn opdrachten";
(c) the words "my mission" are replaced by the words "my missions";
(d) the words "erteilten Auftrag" are replaced by the words "erteilten Aufträge";
2° the article is supplemented by the following paragraphs:
"They confirm their entry into office by signing, no later than the first business day following the designation, at the Registry, the notice of designation.
The curator reports to the president of the court any form of conflict of interest or appearance of bias.
In any case, the curator reports that he or any of his or her direct associates or collaborators, except as curator, has performed benefits for the benefit of the bankrupt or the manager and administrators of the bankrupt corporation, or for the benefit of a creditor, in the eighteen months preceding the declarative judgment of the bankruptcy.
The curator's statements are paid to the bankruptcy file.
The president considers whether the curator's statement prevents him from carrying out his mission.
The court may replace the curator in the form provided for in section 31 or, where applicable, in section 32. »
Art. 9. Section 31 of the Act is supplemented by paragraph 4, which reads as follows:
"If the curator is replaced upon request, it is explicitly mentioned in the above-mentioned publication. »
Art. 10. In section 32 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "When a curator is prevented, because of a conflict of interest, from intervening, he asks" are replaced by the words "Without prejudice to the obligation of information provided for in section 30 and as long as this approach prevents conflict of interest, the curator requests";
2° the following paragraph is inserted between paragraphs 2 and 3:
"The court may also designate an ad hoc curator on its own. The procedure provided for in section 31, paragraph 2, shall apply by analogy. »
Art. 11. In section 34 of the Act, the following amendments are made:
1st paragraph 1^er is replaced by the following paragraph:
"Each year and for the first time twelve months after their entry into office, the curators give the Commissioner a detailed account of the bankruptcy situation. »;
2° Paragraph 3 is replaced by the following paragraph:
"A copy of each state is deposited in the registry and paid to the bankruptcy file. »
Art. 12. Article 38, paragraph 1^er, the Act is replaced by the following paragraph:
"The declarative judgment of bankruptcy and that which has subsequently fixed the termination of payments are, by the clerk's care and within five days of their date, published by extracts to the Belgian Monitor and, by the care of the curators and within that same period, published in at least two newspapers or periodicals having a regional broadcast. »
Art. 13. Section 40 of the Act is replaced as follows:
“Art. 40. The curators take office immediately after the declarative judgment and after confirming their entry into office by signing the notice of designation. They manage bankruptcy in good family father, under the supervision of the commissioner. »
Art. 14. Section 43 of the Act is supplemented by the following paragraph:
"If it is clear that the assets will not be sufficient to cover the alleged costs of administration and liquidation of bankruptcy, the curators will inform the court within fifteen days of the filing of the inventory by written declaration filed at the court office to be attached to the bankruptcy file. »
Art. 15. In section 45 of the Act, paragraph 3 is replaced by the following paragraph:
"If the curators are not able to return the records, they are required to keep them during the time limits set out in section 6 of the Act of 17 July 1975 on business accounting. »
Art. 16. In section 49 of the Act, the words "or impending depreciation" are replaced by the words ", impending depreciation, or if the cost of the preservation of property is too high given the assets of bankruptcy".
Art. 17. Section 51 of the Act is replaced as follows:
“Art. 51. The curators seek and recover on their quits, all claims or amounts due to the bankrupt.
Debts from sales and collection by curators are paid to the Caisse des dépôts et consignations in the month of their receipt. In order to finance current transactions, the curator may retain a limited amount on an individual bank account by bankruptcy, under the supervision of the Commissioner, who sets the maximum amount.
In the event of a delay, curators are liable for late interest, equivalent to legal interests, on amounts they have not paid, without prejudice to the application of section 31. »
Art. 18. Section 52, paragraph 2, of the Act is replaced by the following paragraph:
"The sums due to the curators as fees or allowances provided for in section 33, together with their costs, shall be adjudicated by the Commercial Court on the basis of an application established for this purpose and the opinion of the Commissioner. The costs of justice and costs incurred by third parties, which are set out in the liquidation, advanced by the curators, are arbitrated by the judge-commissary. The fees, fees and disbursements are paid to the curator by the Caisse for deposits and consignations on the basis of a statement referred to by the Commissioner. »
Art. 19. Section 54 of the Act is supplemented by the following paragraphs:
"The curators will immediately proceed to the verification and rectification of the balance sheet. If it has not been filed, they will draw it in accordance with the rules and principles of accounting law, using the books and writings of the bankrupt and the information they may obtain, and they will file it on the bankrupt's file.
As long as the asset is sufficient to cover the costs, the curators can join an expert accountant in the preparation of the balance sheet.
When the balance sheet and other documents provided for in Article 10 were not filed at the time of the termination of payments or when their verification revealed the need for significant adjustments, the court may, upon request of the curators, jointly condemn the directors and managers of the legal person who failed to pay the costs of preparing the balance sheet. »
Art. 20. Section 61 of the Act is replaced as follows:
"Art. 61. If the bankrupt or manager and administrators of the bankrupt society are prosecuted by the head of an offence under sections 489, 489bis, 489ter, 490bis or 492bis of the Criminal Code, or if a warrant to bring or arrest has been awarded against them, or if they have been summoned by the board chamber or cited before the correctional court for the reasons mentioned above, the prosecutor »
Art. 21. The following amendments are made to section 63 of the Act:
A. Paragraph 1^er is supplemented by the following: ", for failing which the curators may reject the debt or consider it as a chirographer; »
B. Paragraph 2 is deleted;
C. in paragraph 3, which becomes paragraph 2, the words "and contain the affirmation prescribed by this section" are deleted.
Art. 22. In the same law, an article 63bis is inserted, as follows:
"Art. 63bis . All proceedings affecting the mass in which the bankrupt is involved and which are pending on the bankrupt's date are suspended in full right until the claim has been made. They remain suspended until after the check-in, unless the curator resumes the procedures in the interest of the mass.
If the declared debt is admitted to the audit report, the above-mentioned pending procedures shall not apply.
If the claim so declared is contested in the audit report, the curator is expected to resume the pending proceedings, at least to determine the disputed party. »
Art. 23. In section 73 of the Act, the following amendments are made:
1st paragraph 1^er is replaced as follows:
"If it appears that the asset is not sufficient to cover the alleged costs of administration and liquidation of bankruptcy, the court, upon request of the curators or even ex officio after hearing the curators, may close the bankruptcy. The bankrupt shall be summoned by judicial fold containing the text of this article. The parties are heard in the board's chamber on the excusability and termination of bankruptcy. The court declares the bankrupt to be excusable, with the effects set out in section 82, if it meets the conditions set out in sections 80 and 81. »;
2° paragraph 2 is replaced by the following paragraph:
"The decision to close the bankruptcy operations dissolves the corporation and immediately closes its liquidation when it is recognized that the assets are not sufficient to cover the alleged costs of administration and liquidation of bankruptcy. »;
Paragraph 3 is replaced by the following paragraph:
"Section 185 of the Corporate Code is applicable. »
Paragraph 5 is replaced by the following paragraph:
"The judgment pronouncing the closure of the bankruptcy for insufficiency of assets is notified to the bankrupt and published by extract to the Belgian Monitor, by the clerk's care. This extract will contain the names, names and addresses of persons considered liquidators. The decision making the bankrupt's excusability is subject to third-party opposition by quote given to the bankrupt and the curator on the part of the creditors individually in the month from the publication of the closing judgment.
Art. 24. The following amendments are made to section 75 of the Act:
1° § 1^er is replaced as follows:
« § 1^er. Upon the close of the debt audit report or at any later date, the curators proceed to the liquidation of the bankruptcy. The judge summons the bankrupt to, in the presence of the curators, collect his observations on the best possible accomplishment of the asset. It's a report. The curators sell buildings, goods and household effects, all under the supervision of the commissioner, in accordance with the provisions of sections 51 and 52, and without calling the bankrupt. They may transfer in the manner prescribed in section 58 on any species of law belonging to the bankrupt, notwithstanding any opposition on its part. »
2° § 2 is repealed.
Art. 25. In section 76 of the Act, the second paragraph is replaced as follows:
"In the third year after the anniversary of the declarative judgment of bankruptcy, the Commissioner may, at the request of a creditor, summon under his presidency a meeting of creditors to hear the report of the curators on the evolution of the liquidation.
The judge summons the assembly if the application is made by creditors representing more than one third of the debts. »
Art. 26. In section 79, paragraph 2, of the Act, the last sentence is replaced as follows:
"The creditors give, if any, their opinion on the undue physical person. »
Art. 27. In section 80 of the Act, the following amendments are made:
1° to paragraph 1^er, the words ", the bankrupt duly called by judicial fold containing the text of this article" are inserted between the words "missary judge" and "the court";
2° Paragraph 2 is replaced as follows:
"The commissioner's judge submits to the court, in the board's chamber, the deliberation of creditors on the bankrupt's excusability, and a report on the circumstances of bankruptcy. The curator and the bankrupt are heard in the board's room on the excusability and on the bankruptcy fence. Unless there are serious circumstances specially motivated, the court shall rule the excusability of the unfortunate and in good faith. The decision on the excusability is subject to third-party opposition by quote given to the curator and the bankrupt on the part of the creditors individually in the month from the publication of the closing judgment of the bankruptcy. The judgment ordering the bankruptcy to close is notified to the bankrupt by the clerk. »
Art. 28. Section 81 of the Act is replaced as follows:
"Art. 81. cannot be declared excusable:
1° the legal person failed;
2° the failed natural person who has been convicted of an offence under section 489ter of the Criminal Code or for theft, false, concussion, fraud or misuse of trust, or the depositary, guardian, administrator or other accountant, who has not rendered and sold his account in due time. »
Art. 29. Section 82 of the Act is replaced as follows:
"Art. 82. The excusability extinguishes the bankrupt's debts and discharges the natural persons who, free of charge, have made sure of their obligations.
The spouse of the bankrupt who has personally obligated himself to the debt of his spouse is released from this obligation by the effect of excusability.
Excusability is without effect on the bankrupt's dietary debts and those resulting from the obligation to repair the damage caused by the death or injury to the physical integrity of a person he caused by his fault. »
Art. 30. In section 83 of the Act, the following amendments are made:
1st paragraph 1^er is replaced as follows:
"The decision to close the operations of the bankruptcy of a legal person dissolves it and immediately closes its liquidation. Section 185 of the Corporate Code is applicable. The decision is published, at the diligence of the clerk, by extract to the Belgian Monitor. This extract will contain the names, names and addresses of persons considered liquidators. »;
2° paragraph 2 is supplemented by the following sentence:
"It can also determine the fate of the unsold assets remaining at the fence. »
Art. 31. In section 101 of the Act, the following amendments are made:
1° in the Dutch text of paragraph 2, the words " voor zover dit schriftelijk is overeengekomen" are replaced by the words " voor zover dit schriftelijk is opgesteld";
2° the article is supplemented by a paragraph 4, which reads as follows:
"If the custody or restitution of claimed property has resulted in a charge of the mass, the curator requires that these costs be paid when the property is issued. If the owner refuses to pay these fees, the curator is entitled to exercise the right of retention. »
Art. 32. Section 150, paragraph 2, of the Act is replaced as follows:
"Section 3 comes into force on May 31, 2002. »
CHAPTER III. - Amendment of the Judicial Code
Art. 33. Article 631, § 1^er, paragraph 1^er, of the Judicial Code, replaced by the Act of 8 August 1997, is replaced as follows:
"The competent trade tribunal to declare bankruptcy is that in the jurisdiction of which the merchant has his principal place of business or, if it is a legal person, his head office, on the day of the bankruptcy or the legal claim. In the event of a change in the principal establishment of the merchant or, if it is a legal person, of the head office, within one year before the bankrupt application, the bankruptcy may also be requested before the court in which the merchant had his principal place of business or, if it is a legal person, his head office within the same period. This period takes place from the amending registration of the change of principal establishment in the register of trade or, if it is a legal person, from the publication of the change of seat in the Belgian Monitor. The court's first case is preferred to the court's subsequent case. »
CHAPTER IV. - Amendments to the Corporate Code
Art. 34. Section 265 of the Corporate Code is supplemented by the following paragraphs:
"The action is admissible on the part of both curators and injured creditors. The injured creditor who initiates an action informs the curator. In the latter case, the amount allocated by the judge is limited to the harm suffered by the acting creditors and is paid exclusively to them, regardless of the possible action of the curators in the interest of the mass.
It is deemed to be a serious fault and characterized any serious and organized tax evasion within the meaning of Article 3, § 2, of the Law of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering. »
Art. 35. Section 409 of the same Code is supplemented by the following paragraphs:
"The action is admissible on the part of both curators and injured creditors. The injured creditor who initiates an action informs the curator. In the latter case, the amount allocated by the judge is limited to the harm suffered by the acting creditors and is paid exclusively to them, regardless of the possible action of the curators in the interest of the mass.
It is deemed to be a serious fault and characterized any serious and organized tax evasion within the meaning of Article 3, § 2, of the Law of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering. »
Art. 36. Section 530 of the same Code is supplemented by the following paragraphs:
"The action is admissible on the part of both curators and injured creditors. The injured creditor who initiates an action informs the curator. In the latter case, the amount allocated by the judge is limited to the harm suffered by the acting creditors and is paid exclusively to them, regardless of the possible action of the curators in the interest of the mass.
It is deemed to be a serious fault and characterized any serious and organized tax evasion within the meaning of Article 3, § 2, of the Law of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering. »
CHAPTER V. - Transitional provision
Art. 37. For the purposes of section 8, 1°, (a) , of this Act, the curators who, at the time of the coming into force of this Act, appear on the list of curators, but have never been designated as such since then, are deemed not yet to have taken an oath.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 4 September 2002.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Notes
(1) Session 2000-2001.
Chamber documents:
Document 50-1132. - Bill No. 1132/1 - Amendments No.^bones 1132/2 to 12 - Report No. 1132/13 - Text adopted by Committee No. 1132/14 - Text adopted in plenary meeting and transmitted to the Senate No. 1132/15.
See also:
Full report: 18-19 July 2001.
Documents of the Senate:
Document. - Project transmitted by Chamber No. 2-877/1.
Session 2001-2002.
Documents. - Amendments n^bones 2-877/2 to 7. - Report No. 2-877/8. - Text adopted in plenary and transmitted to the Senate No. 2-877/9. - Amendments No. 2-877/10. - Text amended by the Senate and referred to the House of Representatives No. 2-877/11.
Session 1999/S.E.
Decisions of the Parliamentary Committee for Consultation: n^bones K82/1-34, 35 and 38.
Annales du Sénat : 13 juin 2002.
House of Representatives
Session 2000-2001.
Documents - Draft amended by the Senate No. 1132/16 - Amendments No.^bones 1132/17 and 18 - Report No. 19 - Text adopted in plenary and submitted to Royal Assent No. 20.
See also:
Full report: 20 July 2002.