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Law On Judicial Administration (1)

Original Language Title: Loi relative au concordat judiciaire (1)

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17 JULY 1997. Judiciary Act (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
TITLE I. - General provisions
Article 1er. This Act, in Articles 48 to 53 and 56, regulates the matters referred to in Article 77 of the Constitution; the other articles regulate matters referred to in Article 78 of the Constitution.
Art. 2. This Act applies to merchants.
Art. 3. All decisions of the commercial court provided for in this Act are enforceable by provision.
Without prejudice to the application of the Bankruptcy Act, court decisions may be appealed on the terms and time limits provided for in the Judicial Code. When this Act provides that decisions are published by extract to the Belgian Monitor, the deadlines begin to run from the date of publication.
Sections 50, paragraphs 7, 55 and 56 of the Judicial Code are not applicable to the actions and meanings provided for in this Act.
Art. 4. The notices to which the Registrar makes pursuant to this Act are by judicial fold.
Without prejudice to Article 17, § 2, where this law prescribes a publication to the Belgian Monitor, the latter shall be notified.
PART II. - Data collection
Art. 5. Useful information and elements concerning merchants who are in financial difficulties such as business continuity may be endangered, including those obtained under the provisions of this title, are kept up to date at the Registry of the Commercial Court in which the merchant has his domicile or head office.
The King's Attorney and the merchant concerned may at any time be aware of the data collected without displacement. The latter has the right to obtain the rectification of inaccurate information concerning him.
In accordance with the terms established by the King, the court may also communicate the data collected to public or private bodies designated or approved by the competent authority to assist enterprises in difficulty.
Art. 6. In the first ten days of each month, the Registrars send to the President of the Commercial Court in whose jurisdiction the protest has been drawn up, a table of protests of accepted currency letters and promissory notes, recorded in the previous month. This table contains:
1° the date of protest;
2° the name, first name, occupation and domicile of the name for which the effect is created or the shooter;
3° the name, first name, occupation and domicile of the subscriber of the promissory note or the acceptor of the letter of exchange;
4° the due date;
5° the amount of the effect;
6° the mention of the value provided, and
7° the answer given to the protest.
Semblable table is also sent to the president of the court of commerce of the domicile of the subscriber of a promissory note or the acceptor of a letter of exchange, if this domicile is located in Belgium in a judicial jurisdiction other than that where the payment must be made.
These tables remain tabled at the respective court offices where each of them is aware of them.
Art. 7. Default convictions and adversarial judgments against merchants who have not contested the principal claim must be forwarded to the Registry of the Commercial Court of their domicile or head office.
In the month of the expiration of each quarter, the National Social Security Agency transmits a list of merchants who have no longer paid the social security premiums due in two quarters to the Registry of the Commercial Court in which they have their domicile or head office. The list indicates, in addition to the name of the merchant, the amount due.
In the month of the expiration of each quarter, the Finance Administration transmits a list of merchants who have no longer paid the A.T. or the professional pre-payment due for two quarters to the Registry of the Commercial Court in which they have their domicile or head office. The list indicates, in addition to the name of the merchant, the amount due.
No later than one month after the decision to declassify, suspend or withdraw one or more aggregates of a contractor, or to exclude a public procurement contractor, the Minister having the approval of the contractors in his or her duties, shall send a copy of that decision to the Registry of the Commercial Court in the jurisdiction of which the merchant has his or her domicile or head office.
Art. 8. After the advice of the Privacy Commission, the King may take the necessary steps to allow the processing, according to a logical structure, of the data collected and to guarantee consistency in the various court offices. In particular, it can determine the categories of data to be collected.
The King may also, after the advice of the Commission on the Protection of Privacy and by deliberately decreed in the Council of Ministers, allow the automated processing of data collection. It can thus authorize the linking of data files, in order to have a better understanding of the payment difficulties experienced by a merchant. Where applicable, the King sets out the terms and conditions.
PART III. - Judicial concordat
CHAPTER I. - Notion and conditions of granting
Art. 9. § 1er. Judicial concordat may be granted to the debtor if the debtor cannot temporarily pay his debts or if the business continuity is threatened by difficulties that may lead to, at more or less short notice, a termination of payment.
The business continuity of a corporation is in any case considered to be compromised if the losses reduced the net assets to less than half the value of the social capital.
§ 2. The concordat can only be granted if the financial situation of the company can be relieved and its economic recovery seems possible. The profitability forecast must demonstrate the company's financial recovery capacity.
CHAPTER II. - Concordat procedure
Section 1. - From ex officio examination
Art. 10. § 1er. The Chambers of Commercial Investigation, as provided for in Article 84, paragraph 3, of the Judicial Code, shall monitor the situation of debtors in difficulty and may examine ex officio if they meet the conditions of the concordat. In the Chambers of Commercial Investigation, the examination is confined either to a judge in the Commercial Court or to a consular judge.
When the judge considers that a debtor meets the conditions to obtain the concordat, the debtor is duly called and heard in order to obtain all the information about the status of his or her cases and about the remedial measures, proposals for agreement or liquidation.
The summons is addressed to the clerk's diligence, to the merchant's home or to his head office. The investigation took place in private. The debtor appears in person, possibly accompanied by persons of his choice.
In addition, it is permissible for the judge to collect all the data necessary for the concordat from office. It may hear any person whom it considers the necessary hearing and order the production of any useful documents. The debtor may produce any other documents of his choice.
§ 2. The Crown Prosecutor and the debtor may at any time obtain, disclose the data as collected and the report referred to in this paragraph. In accordance with the terms established by the King, the court may also communicate the data collected to public or private bodies designated or approved by the competent authority to assist enterprises in difficulty.
Within the first ten days of each month, a list of examinations commenced on the basis of this article shall be communicated to the King's Prosecutor at the diligence of the Registrar.
When the judge has completed the examination of the debtor's situation, he shall prepare a report containing the diligence performed during the examination and his conclusions. This report is attached to the data collected.
§ 3. If he appears to be examining the debtor's situation in bankruptcy, the Commercial Investigation Board shall promptly forward the case to the Crown Prosecutor, who may request bankruptcy.
The judge who conducted the examination may not take part in the bankruptcy procedure.
Section 2. - Demand for judicial concordat
Art. 11. § 1er. The debtor who seeks the concordat addresses a request to the commercial court.
He joins his request:
1° a statement of the events on which its application is founded and of which it is satisfied with the conditions of section 9;
2° an accounting statement of its assets and liabilities and a results account, as well as a simulation of the accounting evolution for at least six months to come;
3° a list of all creditors indicating their name, address, the amount of their debt, as well as the special mention of mortgage creditors, privileged and gagists;
4° the proposals it makes and any other useful document relating to the restructuring of the company or to the disinterest of its creditors and to which it may add the report made during the examination of its situation by the commercial boards of inquiry.
The request is signed by the debtor or his lawyer. It is addressed to the court and the attachments are filed at the registry. The clerk delivers a receipt.
The court shall determine the place, day and hour to which the debtor must appear. The clerk summons the debtor. The summons contains the text of articles 15, § 2, 24, 33, paragraph 1erand 37, § 3.
Within 24 hours, the Clerk shall notify the Crown Prosecutor of the filing of the request.
§ 2. The King's Prosecutor may introduce the proceedings in concordat, without prejudice to the debtor's right to request the concordat himself, to decide on dissolution or to make a confession of bankruptcy.
The introduction of the proceedings by the King's Prosecutor shall take place by quotation, containing the text of articles 15, § 2, 24, 33, paragraph 1er, and 37, § 3. The debtor is heard in the boardroom.
Art. 12. The merchant may not be declared bankrupt and, in the case of a corporation, the latter may not be dissolved, until the court has ruled on the application for incoming concordat.
Section 3
Provisional stay and observation period
Art. 13. On the prescribed day, the court hears the debtor, the public prosecutor and, where appropriate, the auditor-revisor and any creditor who makes the request.
No realisation of movable or immovable property of the debtor may take place as a result of the exercise of an enforcement channel, until the decision referred to in section 15.
Art. 14. The court shall decide on the application no later than fifteen days after the application is filed or after the summons is served.
Art. 15. § 1er. If the conditions set out in section 9 are met, there is no manifest bad faith and that it is possible on the basis of a preliminary assessment to fully or partially ensure the continuity of the business, the court grants a provisional stay for a period of observation that cannot be more than six months.
In its decision, the court shall designate one or more suspended members. If the court has not decided otherwise, the commissioners may individually perform all the acts necessary or useful for the performance of their joint missions.
The court may decide that the debtor may not perform acts of administration or disposition without the permission of the suspended commissioner.
If the debtor contravenes this requirement, these transactions are not enforceable to creditors.
§ 2. If the application for concordat is rejected, the court may pronounce the debtor's bankruptcy in the same judgment after having specially heard it on the terms of bankruptcy.
§ 3. However, in the event of a manifest bad faith in the head of a company manager, the judge may grant the benefit of the interim stay provided that it is sufficiently guaranteed that the person in charge will be dismissed from management.
Art. 16. The judgment granting a provisional stay invites creditors to make the declaration of their claims within the time limit set for them. It also indicates the place, the day and the time when it will be decided on the granting of a final stay.
Art. 17. § 1er. The judgment granting the interim stay is, at the diligence of the Registrar of the Commercial Court and within five days of its date, published by extract to the Belgian Monitor and in two newspapers or periodicals having a regional broadcast.
The extract mentions:
1° the name, first name, place and date of birth, the nature of the principal commercial activity and the name under which this activity is carried out, the address as well as the place of the principal establishment and the number of registration of the debtor in the trade register, as well as the registration number assigned to it for the purposes of the value added tax; if it is a legal person, the name, form, nature of the principal commercial activity and the name under which that activity is carried out, the seat as well as the place of the principal establishment and the registration number of the legal person in the trade register and the registration number assigned to it for the purposes of the value added tax;
2° the date of the judgment which grants the interim stay and the court that rendered it;
3° the name, first name and address of the suspended commissioner;
4° the invitation to make the declaration of claims and the time limit within which the declaration must be made;
5° the place, day and time fixed to decide on a permanent stay;
6° the acts of administration or disposition that the debtor cannot perform without the permission of the suspended commissioner.
§ 2. Creditors are individually notified of these data by the Commissioner of the stay, by registered letter.
Art. 18. At the office of the Registry, a file of the stay contains all the substantive and procedural elements.
Any creditor and, upon authorization of the President of the Commercial Court or his or her delegate, any person who may justify a legitimate interest may be free of charge aware of the file and obtain a copy of it by payment of the transplant fees.
Art. 19. The suspended commissioner is appointed by the court and is responsible for assisting the debtor in his management, under the control of the court. It reports every time the circumstances require it and in any case at the request of the court.
The Commissioner of the designated stay must offer guarantees of independence and impartiality. He must have experience in business management and accounting. It must also be held by a code of ethics and its professional responsibility must be covered by insurance. The court may designate the suspended commissioner among persons authorized by public or private bodies designated or approved by the competent authority to assist enterprises in difficulty. The court chooses the Commissioner to stay on the basis of his qualities and according to the needs in this case. If the situation so requires, the court may designate a College of Commissioners with separate training.
The manner in which the suspended commissioner has discharged his mission may be assessed by the court. This evaluation will be held at the court office.
At the time of his appointment and before the President of the Commercial Court or his delegate, the suspended Commissioner shall take the following oath:
"Ik zweer getrouwheid aan de Koning, gehoorzaamheid aan de Grondwet en aan de wetten van het Belgische volk. Ik zweer mijn opdracht in eer en geweten, nauwgezet en eerlijk te zullen vervullen. »
"I swear faithfulness to the King, obedience to the Constitution and the laws of the Belgian People. I swear to carry out my mission in honor and conscience, with accuracy and probity. »
"Ich schwöre Treue dem König, Gehorsam der Verfassung und den Gesetzen des belgischen Volkes. Ich schwöre den mir erteilten Auftrag auf Ehre und Gewissen, genau und ehrlich zu erfüllen. »
His fees are determined by the court of commerce according to the rules and scales established by the King and are paid by preference.
At the request of any interested person, the Commercial Court may, depending on the form of the referee, at any time and provided that it is absolutely necessary, proceed to the replacement of the suspended commissioner, or one of them, or to increase or decrease the number of such substitutes. The application is directed against the suspended commissioner, the public department and the debtor heard.
Art. 20. At any time of the observation period, the court may, at the request of any interested person and after hearing the debtor and the Commissioner of the stay, amend its decision under section 15, § 1erParagraph 3. This amendment is published in accordance with Article 17, § 1erand notified in accordance with Article 17, § 2.
Art. 21. § 1er No road of execution on movable or immovable property may be prosecuted or exercised during the observation period.
This stay is applicable to all creditors, regardless of the security they have, and to the claim action of the creditor-owner. The stay does not benefit the co-debiters or the bonds.
The court may, at the request of the creditor-owner, the mortgage creditor, gagiste and the person who enjoys a special privilege, which proves that his security or property is subject to or may be subject to a significant impairment, grant additional security rights as compensation in respect of the amount of the debt.
This paragraph shall not prejudice the contrary provisions established by any applicable specific laws that may be contested or not.
§ 7. When the interests and expenses of the receivables that have taken place since the grant of the concordat are not paid, the creditors regain the full exercise of their rights.
Art. 22. No seizure can be performed during the observation period. The seizures already practised before the stay, however, retain their conservative character, but the court of commerce may, under the circumstances, release them, after hearing the debtor, the creditor and the Commissioner of the stay.
Art. 23. At the request of the Commissioner of the Residence, the debtor, the Public Prosecutor's Office or the Public Prosecutor's Office, the court may extend, once and for a maximum of three months, the period of observation provided for in Article 15, § 1er.
Art. 24. Where the debtor no longer meets the conditions for obtaining the concordat, the court may at any time, upon request of the debtor or the suspended commissioner, or upon summons from the public prosecutor or any other interested person, order the termination of the interim stay after hearing the debtor.
In the same judgment, the court may pronounce the debtor's bankruptcy after having specially heard it on the conditions of bankruptcy.
Art. 25. Creditors declare their debt and file their title to the Registry of the Commercial Court, no later than the day determined by the judgment granting the interim stay.
Upon request, the Registrar shall issue an acknowledgement of receipt, possibly on a copy of the enclosed inventory.
The last day on which claims of receivables may be made may not be fixed less than eight working days from the expiry of the period in respect of Article 15, § 1er.
Any statement mentions the name, first name, occupation and domicile of the creditor, the cause and title of the debt and, where applicable, the privileges of the creditor, as well as the mortgage or pledge rights that guarantee the payment of the debt. Where applicable, creditors also refer to their personal security rights.
Art. 26. The suspended commissioner examines the claims and the securities filed, with the assistance of the debtor. These claims are compared to the books and writings of the debtor.
Art. 27. § 1er. When the debtor and/or the suspended commissioner issue an objection to the admission of a debt, they refer to the court the dispute concerning the unallowed receivable.
The creditor whose debt is contested is immediately informed by the clerk's care. The notification also includes the summons to appear before the court and mentions the place, day and time of the proceedings.
The clerk also summons the debtor.
§ 2. At the hearing for the examination of disputes, the court shall decide, after hearing the suspended commissioner, the creditor and the debtor, in accordance with sections 735 to 1024 of the Judicial Code.
Where the dispute concerning the disputed receivable is not within its jurisdiction, the court shall refer the parties to the competent court.
§ 3. As long as no decision is made regarding the disputed receivable, the decision is, at the request of the suspended Commissioner, provisionally admitted to the concordat operations for the amount determined by the court and is also taken into account in the development of the plan. The order determining the amount provisionally admitted is not subject to appeal.
Art. 28. The judgment granting the interim stay shall not terminate the contracts entered into before that date.
Any clause in a contract, including a resolute clause, whereby the resolution of the contract takes place solely because of the request or grant of a concordate, is without effect. The criminal clauses, intended to cover the potential damage incurred as a result of non-compliance with the main undertaking, remain without effect during the observation period.
These provisions shall not prejudice the contrary provisions established by specific laws applicable to them or not.
Art. 29. § 1er. During the period of application of the interim stay, the debtor develops a recovery or payment plan consisting of a descriptive part and a prescriptive part. He attachs this plan to the file of the stay referred to in section 18.
Where applicable, the suspended commissioner designated by the court assists the debtor in the development of the plan.
§ 2. The descriptive part of the plan describes the company's state and the difficulties it faces.
§ 3. The prescriptive part of the recovery or payment plan contains the measures to be taken to disinterest creditors. It also mentions the necessary credits to ensure the continuation of the business activities and the means necessary for the company to ensure its recovery.
The plan outlines the proposed payment times and claims. It may provide for the conversion of receivables to shares and the differentiated settlement of certain categories of receivables, particularly depending on their extent or nature. The plan may also provide for a rescheduling measure for the payment of interest, as well as the priority imputation of the amounts realized on the principal amount of the receivable.
Without prejudice to section 30, the plan specifies unpaid movable property that may be claimed on the basis of a clause suspending the transfer of ownership to the full payment at the price. Where the interest of the company requires, however, the plan may refer to the property that the unpaid owner cannot claim.
When the rescue of the company and the maintenance of the activities require a reduction in the payroll, a social restructuring plan will be planned. Where applicable, the latter may provide for terminations. During the development of this plan, staff representatives on the board of business or, if not, on the committee for prevention and protection at work or, if not, the union delegation has been constituted or, if not, a staff delegation, will be heard.
When a transfer of the undertaking or part of it is considered, reference will also be made in the plan.
Art. 30. Without prejudice to the provisions of paragraph 3 and provided that the plan provides for the payment of interest to the unpaid seller who has a clause suspending the transfer of ownership to the full payment of the price, mortgage creditors, gagists and those who enjoy a special privilege and in respect of the administration of the taxes, and provided that the payments or refunds of the sellers are not suspended for more than eighteen months
Where the seller or creditors prove that their property or security interests are incurred or may be subject to significant impairment, the judge may grant them additional security rights as compensation in the amount of the debt.
Where the conditions set out in paragraph 1er are not completed and the plan nevertheless provides for a stay in respect of that seller and creditors or where, notwithstanding compliance with the conditions referred to in paragraph 1er, the plan changes their current or future situation, they must expressly consent to it. Where applicable, consents are attached to the plan when deposited at the registry.
The replacement of members of the board of directors or managers, or each modification or reduction of their skills, may only be provided in the plan after deliberation and authorization of the general assembly of the partners, for this purpose convened by the Commissioner of the stay.
Section 4. - Definite stay
Art. 31. On the day fixed in accordance with section 16, the court hears the debtor, creditors and the suspended commissioner.
Art. 32. Creditors who made a statement shall, by the Clerk's care, receive an individual notification indicating that the plan is under review and that they may consult it, without displacement, at the court office. They are also advised that they may make submissions at the hearing, either in writing or orally, on the proposed plan and that this plan will be the subject of a vote. The court may determine that bonds and other personal security debtors will also receive this notification and that they may, in the same way, make their observations.
Notwithstanding the application of section 30, only creditors in respect of whom the plan provides for a stay may vote.
The suspended member shall inform the contents of the plan of the board of business or, failing that, the committee for prevention and protection at work or, failing that, the union delegation if it has been constituted or, failing that, a staff delegation.
Art. 33. No later than fifteen days after the hearing of the interested parties, the court decides whether a final stay is that the proposed transfer of the undertaking or part of it will be authorized. If the court does not allow the final stay, it may pronounce in the same judgment the bankruptcy of the debtor after having specially heard it on the terms of bankruptcy.
The court decision is published by extract to the Belgian Monitor by the clerk.
Art. 34. If the public order does not oppose it and if the debtor offers the necessary guarantees of probity in management, the court may approve the final stay when more than half of the creditors who made the declaration of their debt, having taken part in the vote, and representing in value more than half of the claims, consent to it.
However, the stay granted cannot exceed twenty-four months from the judicial decision. However, under the same conditions as those provided for in paragraph 1er, the court may extend the stay granted for up to twelve months.
Art. 35. The approval of the court makes the plan binding on all creditors concerned, except for adaptations that will be made in consideration of the decisions made on disputed claims.
The creditor who has not declared his debt within the specified time limit shall be held by the final stay. A late declaration is only followed by effect, as long as it is not affected by the approved plan.
Unless the plan otherwise expressly disposes of it, the complete execution of the plan will completely and definitively release the debtor for all claims contained therein.
The stay of payment does not benefit the co-debiters and the bonds of the debtor.
Art. 36. The suspended commissioner exercises oversight and control over the execution of the plan and the concordat.
At least every six months and at every request of the court, the suspended commissioner reports to him on the execution of the plan and the concordat.
This report is attached to the suspended file.
Art. 37. § 1er. When the Commissioner finds that there is no execution of all or part of the plan, the Commissioner may request, in his report to the court, the revocation of the stay.
Any creditor may request the revocation of the stay, where he is not disinterested of his or her claims within the time and in the manner determined in the plan or when he or she demonstrates that he or she will not be.
§ 2. The court may revoke the stay of payment in the event of a lack of execution of the whole or part of the plan, after hearing the suspended commissioner and the debtor, as well as the bails made to ensure the complete or partial execution of the plan.
Revocation of the stay of payment does not release these bonds.
§ 3. During the revocation of the stay and in the same judgment, the court may pronounce the debtor bankruptcy after having specially heard it on the conditions of bankruptcy.
Art. 38. In the interest of the business, the court may, at the request of the debtor or the suspended commissioner, approve changes to the plan in order to promote its execution. The debtor or the suspended commissioner are heard. Where the amendment is likely to prejudice the rights of creditors associated with the recovery plan, section 34, paragraph 1er, is applicable.
At the request of any creditor concerned, provided that the creditor has not previously consented to the proposals of the plan in accordance with Article 34, the court may also decide on changes to the plan if the creditor proves that the execution of the plan may expose it to serious difficulties.
A decision to amend the plan may only be made after the Commissioner's report, the debtor and the creditor concerned heard.
Where the amendment is likely to prejudice the rights of other creditors associated with the recovery plan, section 34, paragraph 1er, is applicable.
Art. 39. The judgment revoking or modifying the plan is published by extract to the Belgian Monitor by the clerk.
Art. 40. A month before the expiry of the period of stay, the Commissioner of the stay shall prepare a final report on the execution of the plan.
At the request of the Commissioner for a stay, the court shall terminate the stay after hearing the debtor summoned to the clerk's due diligence, at least eight days before the hearing, and shall give the Commissioner a leave to stay.
The judgment pronouncing the end of the stay is published by extract to the Belgian Monitor by the clerk.
In the event that the court refuses or revokes the stay, it may discharge the suspended commissioner after hearing the debtor.
CHAPTER III. - From the company's transfer
Art. 41. The court may authorize the suspended Commissioner to carry out the transfer of the business or part of it if the transfer contributes to the repayment of the creditors and if it allows the maintenance of an economic activity and a certain amount of employment. The suspended commissioner ensures the advertising necessary for the decision to alienate an activity. Any person is authorized to submit a proposal to the Commissioner for stay.
The suspended Commissioner examines the proposals in the light of the continued sustainable economic activity and the impact on creditor repayment opportunities. He discusses the proposals received with the relevant management bodies of the company and with workers' representatives.
He may decide to have more in-depth interviews with one or more candidates for the resumption, with a view to reaching consensus with the workers. It also ensures, in this context, the preservation of the legitimate interests of creditors.
At the end of this procedure, the suspended Commissioner submits a proposal for a full or partial transfer of the undertaking to the approval of the court. Before deciding, the court heard a delegation of the company's management and a delegation of the workers.
If the suspended commissioner proposes the transfer of the entire business, the court can only approve this proposal if more than half of the creditors who made the declaration of their receivables, having taken part in the vote and representing more than half of the claims, consent to it.
Art. 42. The transfer of the undertaking or part thereof may constitute one of the parts of the recovery or payment plan.
Art. 43. If, in accordance with Article 37, § 3, the stay of payment is revoked, this revocation shall not affect the transfer of the undertaking or part of it already carried out.
CHAPTER IV. - Bankruptcy procedure
Art. 44. If the debtor is declared bankrupt in the course of the concordat proceeding, the creditors concerned with the stay are counted on the basis that they have not yet received, and enter, without prejudice to the rights provided in the following paragraph, in cooperation with the new creditors.
The actions performed by the debtor during the proceedings with the cooperation, authorization or assistance of the suspended commissioner are considered during bankruptcy as acts of the curator, the debts incurred during the concordat being understood as debts of the bankrupt mass.
Art. 45. In the cases provided for in sections 24, 33 and 37 and in the case of a legal person, the court may order the Commissioner to stay to convene the general assembly of the latter with its dissolution on the agenda.
CHAPTER V. - Criminal provisions
Art. 46. The debtor is liable to imprisonment for one month to two years and to a fine of 100 francs to 500,000 francs or only one of these penalties:
1° if, in order to obtain or facilitate the concordat, it has, in any way, voluntarily concealed part of its assets or liabilities, or exaggerated that asset or minimized that liability;
2° if he has knowingly intervened in the proceedings one or more creditors assumed or whose claims have been exaggerated;
3° if he has knowingly made one or more omissions in the list of creditors;
4° if he has knowingly made or allowed the court or the Commissioner to suspend inaccurate or incomplete statements on the status of his cases or on the prospects for reorganization.
Art. 47. A fine of 100 francs to 500,000 francs shall be punished, those who, fraudulently, have, without being creditors, taken part in the vote provided for in article 34 or, being creditors, exaggerated their claims, and those who have stipulated, either with the debtor or with all other persons, special advantages for the purpose of their vote on the stay or who have made a particular treaty which would result in their favour an advantage of the debtor
CHAPTER VI. - Miscellaneous provisions
Art. 48. Article 84 of the Judicial Code is supplemented by paragraph 3, which reads as follows:
"Each commercial court shall establish one or more chambers of commercial investigation. »
Art. 49. Article 151 of the same Code is supplemented by paragraph 5, which reads as follows:
"Each judicial district has one or more substitutes for the King's attorney specializing in commercial matters. »
Art. 50. The following amendments are made to section 205 of the Code:
1. Paragraph 1 is replaced by the following:
"In order to be appointed as a consular, effective or alternate judge, the candidate must be thirty years of age and must have, for at least five years, honourably, engaged in trade or participated either in the management of a commercial company having its principal place of business in Belgium, or in the direction of a professional organization or representative trade or industry inter-professional or have experience in the management of business and accounting. "
2. The following amendments are made to the second subparagraph:
(a) in the Dutch text, the words "het beheer" are replaced by "het bestuur" mors;
b) at point 1° of the Dutch text, the words "onder een gemeenschappelijke naam" are replaced by the mors "onder firma";
(c) at point 3°, the words "personal societies" are replaced by the "private companies" mors and, in the Dutch text, the words "beheerders" are replaced by the words "of bestuurders".
3. A fourth paragraph, to read:
"For the purposes of this section, they are considered to have experience in business management and accounting:
1° revisors of companies listed in the Institute of Business Reviewers;
2° the accounting experts listed in the Institute of Accounting Experts. »
Art. 51. The following amendments are made to section 574 of the Code:
(a) 2° is replaced by the following provision:
"2° of the actions and challenges that arise directly from bankruptcy and judicial concordat, in accordance with the provisions of the Bankruptcy Act and the Judicial Concordate Act, and whose elements of a solution reside in the particular law relating to the system of bankruptcy and judicial concordat; »;
(b) the article is complete by a 10°, which reads as follows:
"10° of applications for registration of decisions for the removal of a company's seat in liquidation. »
Art. 52. Article 578 of the same Code is supplemented by a 9°, which reads as follows:
"9° of disputes concerning the quality of workers and the maintenance of their rights as a result of the transfer of the company or part of it, referred to in Chapter IV of Title III of the Law on Judicial Concordat. »
Art. 53. In section 631 of the same Code, paragraph 3 is replaced by the following paragraph:
Ҥ2. The court of competent trade to grant judicial concordat is that in whose jurisdiction the debtor has his domicile or, if it is a legal person, his head office, on the date of the introduction of the judicial concordat. When the debtor has no domicile known in Belgium or abroad, the competent court is that in whose jurisdiction the debtor has its principal institution.
The court referred to in the previous paragraph remains competent for and during all operations provided for by the Law on Judicial Concordat and the Bankruptcy Act. »
Art. 54. In section 764 of the same Code, replaced by the Act of 3 August 1992, the 8th is replaced by the following provision:
"8° requests in concordat, in bankruptcy declaration, deferral of the date of termination of payment and the procedures for revocation of the stay of payment and termination of bankruptcy; "
Art. 55. Article 1395, paragraph 1erthe same Code is supplemented as follows:
"The release of the seizure before the award of the stay of payment may, however, be granted by the competent court in respect of judicial concordat. »
Art. 56. Section 2 of the Act of 15 July 1970 defining the framework of the personnel of the commercial courts and amending the Act of 10 October 1967 containing the Judicial Code, as amended by the Acts of 25 July 1974, 23 September 1985 and 28 December 1990, is replaced by the following provision:
“Art. 2. The number of consular judges is as follows:
Headquarters Consular Judges
Brussels . . . . . 154
Antwerp. 98
Liege . . . . 44 .
Charleroi . . . . . 40
Ghent. 51
Termonde. 34
Mons . . . . . 18
Bruges. 34
Short. 28
Ypres. 10
Run. 10
Louvain . . . . . 20
Hasselt . . . . . 24
Turnhout. 21
Tigers. 18
Mechelen . . . . . 20
Audenarde . . . . . 14
Glasses-Eupen . . . . . 18
Namur . . . . . 23
Dinant . . . . . 13
Huy. 10
Strawberries. 25
Arlon. 10
Ninechâteau . . . . . 6
Marche-en-Famenne . . . . 6
Turn. 20
Art. 57. Article 25 of the Trade Register Acts, coordinated on 20 July 1964, is supplemented by a 16°, which reads as follows:
"16° for approval, rejection, modification or revocation of a recovery or payment plan. »
Art. 58. Article 64sexies of the laws on commercial companies coordinated on 30 November 1935, inserted by the law of 21 February 1984, is complete by § 2, which reads as follows:
Ҥ2. Commissioners who, in the course of their audits, find serious and consistent facts that may jeopardize the business continuity, inform the directors in writing and in a limited manner.
In this case, the board of directors must deliberate on the measures that should be taken to ensure continuity of the business for a reasonable period of time.
Commissioners may waive the information referred to in the first paragraph when they find that the Board of Directors has already deliberated on the measures that should be taken.
If within one month of the date of the disclosure of the information referred to in the first paragraph, the Commissioners were not informed of the Board's deliberation of the actions taken or envisaged to ensure the business continuity for a reasonable period of time, or if they consider that these measures are not likely to ensure the business continuity for a reasonable period of time, they may communicate their findings to the President of the Commercial Court. In this case, section 458 of the Penal Code is not applicable.
In the event that the Board is not appointed a Commissioner, where serious and consistent facts are likely to jeopardize the business continuity, the Board of Directors is also required to deliberate on actions that should be taken to ensure business continuity for a reasonable period of time. »
Art. 59. In section 77 of the same coordinated laws, as amended by the laws of 24 March 1978, 5 December 1984, 18 July 1991 and 13 April 1995, the following amendments are made:
A) Paragraph 4 is supplemented by the following provision:
"When the balance sheet reveals a deferred loss, or when the results account discloses a loss of the fiscal year for two successive years, directors are required to justify the application of the continuity accounting rules in the report. "
B) In paragraph 8, the last sentence is replaced by the following provision:
"The indications referred to in paragraph 4, last sentence, and in paragraph 5, must, however, be included in the schedule to the annual accounts. »
Art. 60. The Laws on Judicial Concordat, coordinated by the Order of the Regent of September 25, 1946, are repealed.
Art. 61. This Act does not apply to proceedings in judicial harmony at the time of its entry into force.
Art. 62. This Act comes into force on the day determined by the Royal Decree taken pursuant to Article 150 of the Bankruptcy Act and no later than six months after its publication in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 17 July 1997.
ALBERT
By the King:
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
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