belgiquelex.be - Carrefour Bank of Legislation

8 AOUT 1997. Bankruptcy 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 1^er. This Act, in Articles 6 and 115, regulates a matter referred to in Article 77 of the Constitution; the other articles regulate matters referred to in Article 78 of the Constitution.
Art. 2. Any merchant who has ceased his payments on an ongoing basis and whose credit is shaken is in a state of bankruptcy.
Whoever no longer practises trade can be declared bankrupt, if the cessation of his payments goes back to a time when he was still a merchant.
The bankruptcy of a natural person can be declared up to six months after his/her death, when he/she died after he/she has ceased his/her payments in a persistent way and his/her credit has been shaken.
The bankruptcy of a dissolved legal entity can be declared up to six months after the liquidation closes.
Art. 3. § 1^er. If the main interests of the merchant are located in another $ Find AA Member State of the European Union, it may, if it owns an establishment in Belgium, be declared bankrupt. However, insurance companies and credit institutions are excluded, investment companies that provide services involving the detention of third-party funds or securities, as well as collective investment organizations, if the centre of their main interests is located in another EU Member State.
This bankruptcy is a territorial insolvency proceeding within the meaning of the Brussels Insolvency Proceedings Convention on 23 November 1995. The rules prescribed by this Convention shall apply to it. Its effects are limited to the goods of the merchant located in Belgium.
§ 2. If the principal interest centre of the debtor is located in another $$ Find AA Member State of the European Union and if an insolvency procedure is open to it in this$$ Find AAState, it may, if it owns an institution in Belgium, be declared bankrupt. Find, however, excluded, insurance companies and credit institutions, investment companies that provide services involving the detention of third-party funds or securities, as well as collective investment organizations, if the centre of their main interests is located in another $(AAA) Member State of the European Union.
This bankruptcy is a secondary insolvency proceeding within the meaning of the agreement referred to in the preceding paragraph. The rules prescribed by this Convention shall apply to it. Its effects are limited to the assets of the debtor located in Belgium.
Art. 4. Sections 50, paragraphs 2, 55 and 56 of the Judicial Code are not applicable to applications and service referred to in this Act.
Art. 5. The notices to which the Registrar makes pursuant to this Act are by judicial fold.
PART II. - Bankruptcy
CHAPTER I. - De l'aveu, de la déclaration de bankrupt and de la cessation depayment
Art. 6. Without prejudice to the provisions of the law on judicial concordat, bankruptcy shall be declared by judgment of the court of commerce seized either on the admission of the merchant or on the summons of one or more creditors, the public prosecutor, the provisional administrator referred to in Article 8 or the principal trustee in the case referred to in Article 3, § 2.
Art. 7. In the event of an abort or in the event of a bankrupt application, the Commercial Court may suspend its decision for a period of fifteen days during which the merchant or the Public Prosecutor's Office may apply for a concordat.
Art. 8. In the event of absolute necessity, and where there are specific, serious and consistent clues that the bankruptcy conditions are met, the president of the commercial court may defer in whole or in part the merchant of the management of all or part of his property.
The president decides, either on a unilateral request from any interested person or on his or her own behalf.
The Chair shall designate one or more provisional directors with experience in business and accounting management and shall specify their powers. These do not include that of making the bankruptcy or that of representing the merchant in a bankruptcy procedure.
The designated provisional administrator must offer guarantees of independence and impartiality. The individual must be held by an ethical code and his professional responsibility must be covered by insurance.
The divestiture order shall be effective only to the extent that, within eight days of its pronouncement, a bankrupt application is filed either by the applicant or by the provisional administrators in the event that the President has made an ex officio decision.
The decision ceases to be entitled to produce effects if a bankruptcy judgment is not pronounced within four months of the introduction of the application. This period is suspended during the time of surrender to the debtor, or during the time required as a result of a reopening of the proceedings. There is no publication of the decision, except that provided for in section 25 of the Trade Register Acts, coordinated on 20 July 1964.
The President may at any time, at the request of the provisional administrators, amend their credentials. Decisions rendered under this section are enforceable by provision. They may be appealed under articles 1031 to 1034 of the Judicial Code.
The actions of the debtor, in violation of the divestiture, are unopposable to the mass if, on the part of those who have treated with him, they have taken place with knowledge of the divestiture or if they fall within one of the three categories of acts referred to in Article 17. The curators, however, are not required to invoke the inopposability of the acts laid by the bankrupt to the extent that the mass has been enriched.
If the debtor disposed of his property on the day of the filing of the decision ordering the divestment, it is presumed that the debtor disposed of his property after that decision.
If a payment has been made to the debtor after the decision ordering its divestiture and this benefit has not been made to the provisional administrator responsible for collecting payments, the person who has paid is expected to be released if he did not know the decision.
In the event of a dispute, the court chair estimates the costs of the provisional administrator as well as the costs of the judicial expert. The costs are provided by the applicant or, in the event of an ex officio designation, by the debtor. In the event of the debtor's bankruptcy, the costs are debts of the mass. Otherwise, they shall be settled definitively in the manner provided for in this paragraph for provisions.
Art. 9. Every merchant is required, in the month of the termination of his or her payments, to make the admission to the office of the competent court. This provision is not applicable to the debtor referred to in Article 3, §§ 1^er and 2.
This confession is made by the clerk. At that time, the admission and the data supporting the bankruptcy must be communicated to the board of business or, failing that, to the committee for prevention and protection at work or, failing that, to the union delegation if the bankruptcy was constituted or, if not, to a staff delegation. This confession and data will be discussed.
In the event of a bankruptcy of a society in collective name, the admission contains the name and indication of the domicile or seat of each of the solidarity partners. It must also mention the domiciles or seats where they were established in the last 12 months and one day, as well as the dates of registration in the civil status or trade register; it is done at the court office where the headquarters of the principal institution of the company is located.
Art. 10. The merchant joined his confession:
1° the record of his business or a note indicating the reasons for his failure to file it;
2° the books required by Chapter 1 of the Act of 17 July 1975 on accounting and annual accounts of enterprises; these records are stopped by the clerk, who notes the status of the records or a note indicating the reasons for the filing of the documents.
The balance sheet contains the statement of assets and liabilities referred to in the Act of 17 July 1975 relating to the accounting and annual accounts of enterprises and the listing and evaluation of all the debtor's movable and real property, the statement of receivables and debts, the table of profits and losses, the last completed results account and the table of expenditures; it must be certified true, dated and signed by the debtor.
The clerk certifies at the bottom of the merchant's admission and the documents annexed thereto the date of their handover to the registry office, and delivers them if required.
The handover to the office of any other bankruptcy documents is found in the same way, without any other depositary deeds being required.
Art. 11. By the judgment which declares bankruptcy, the court of commerce appoints, among its members, the president except, a judge-commissary. The Commercial Court designates one or more curators, depending on the importance of bankruptcy. He or she orders a descent to the site, the Commissioner, the curators and the clerk. It orders the bankrupt's creditors to make the bankrupt's declaration of their claims to the court within a period of 30 days from the declarative judgment of bankruptcy, and orders the publication referred to in Article 38.
The same judgment shall mean the place, day and hour to which the minutes of the audit of claims shall be closed. This time shall be so fixed that it shall run for a period of not less than five days and not more than thirty days between the expiry of the period for the declaration of claims and the termination of the audit report.
Art. 12. Termination of payment is deemed to take place from the declarative bankruptcy judgment, or from death, when bankruptcy is declared after the bankrupt's death.
The court may not set a termination on a prior date unless serious and objective evidence clearly indicates that the termination of payment occurred prior to the judgment; these elements must be mentioned in the judgment.
The court may, on a quote from the curators directed against the bankrupt or on a quote from any interested person directed against the bankrupt and the curators, subsequently amend the date of termination of payment.
The judgment refers to the data on which the court relied to determine the date of termination of payment.
No request for the termination of payment at any time, other than that resulting from the declarative judgment or subsequent judgment, shall be admissible more than six months after the declarative judgment of bankruptcy, without prejudice to the exercise of remedies against the declarative judgment of bankruptcy.
The judgment cannot fix the date of the termination of payment on a date preceding more than six months the declarative judgment of bankruptcy, unless that judgment relates to a bankruptcy of a legal person dissolves more than six months before the declarative judgment of bankruptcy, the liquidation of which is terminated or not, and if there are any clues that it has been or is conducted in the intention of harming creditors. In this case, the date of termination of payment may be set on the date of dissolution.
Art. 13. The declarative judgment of bankruptcy is meant to the bankrupt at the diligence of the curators.
In addition to the texts of articles 14 and 15, the exploit of meaning contains, as a matter of nullity, a summons to appear at the close of the notice of verification of claims and to learn, if any, at what date or date the judge-commissary shall determine the proceedings concerning the disputed claims.
Art. 14. Any declarative judgment of bankruptcy or fixing the date of termination of payment shall be enforceable by provision and on time from the pronunciation.
The judgments set out in paragraph 1 are subject to opposition by the failed and third-party opposition parties on the part of the parties who were not parties thereto.
The opposition to these decisions is admissible only if it is formed within fifteen days of the meaning of the judgment. The third opposition is admissible only if it is formed within fifteen days of inserting extracts from the judgment to the Belgian Monitor.
The time limit for appealing judgments referred to in paragraph 1 is fifteen days from the date of publication to the Belgian Monitor referred to in section 38 or, if the appeal emanates from the bankrupt, fifteen days from the meaning of the judgment.
Art. 15. The appeal, opposition or third-party opposition against the judgment declaring bankruptcy or refusing to declare it, are diligently investigated. At the request of the most diligent part, the case is fixed to be pleaded in the month of the request for fixation.
CHAPTER II. - The effects of bankruptcy
Art. 16. The bankrupt, starting on the day of the declarative judgment of bankruptcy, is divested in full right of the administration of all his property, even those who can echo him as long as he is in a state of bankruptcy. All payments, transactions and acts made by the bankrupt, and all payments made to the bankrupt since that day are unposable to the mass.
The property referred to in Article 1408, of the Judicial Code, except for the property essential to the occupation of the seized person, referred to in Article 3, shall be excluded from the assets of the bankruptcy the bankrupt shall retain the administration and the provision.
Also excluded from the assets of bankruptcy are the amounts, amounts and payments that the bankrupt collects from the bankrupt's declaration of bankruptcy, provided that they are elusive under sections 1409 to 1412 of the Judicial Code or under specific laws.
Also excluded from the assets of bankruptcy, the allowances granted to the bankrupt for the repair of personal injury and caused by an unlawful act.
Art. 17. Inopposable to the mass, when they have been made by the debtor since the time determined by the court as the termination of his payments:
1° any acts of free disposition relating to furniture or immovables, as well as acts, transactions or contracts commemorative or expensive, if the value of what was given by the bankrupt significantly exceeds that of what he received in return;
2° all payments, either in cash or by carriage, sale, compensation or otherwise, for unsecured debts and for unsecured debts, any payments made other than in cash or trade effects;
3° all conventional mortgages and all rights of antiquity or pledge constituted on the property of the debtor for previously contracted debts.
Art. 18. Any other payments made by the debtor for outstanding debts, and any other expensive acts by the debtor after the termination of his payments and prior to the declaratory judgment, may be declared unopposable to the mass, if, on the part of those who have received or treated with the debtor, they have taken place with knowledge of the termination of payment.
Art. 19. Mortgage and validly acquired privilege rights can be registered until the day of the declarative judgment of bankruptcy.
However, registrations made after the time of termination of payment may be declared unopposable if more than fifteen days have elapsed between the date of the act constituting the mortgage or privilege and the date of registration.
Art. 20. Any acts or payments made in fraud by creditors are unposable, regardless of the date on which they took place.
Art. 21. In the case where letters of exchange would have been paid after the time fixed as the termination of payment and prior to the declarative judgment of bankruptcy, the related action can only be brought against that on whose behalf the foreign currency was provided; if it is a promissory note, the action can only be excerpted against the first endoctor.
In both cases, evidence that the person to whom the report was requested was aware of the termination of payment at the time of the issuance of the title must be provided.
Art. 22. The declarative judgment of bankruptcy makes payable, in respect of the bankrupt, undue debts. If the bankrupt is the subscriber of a promissory note, the acceptor of a letter of exchange, or the shooter failing to accept, the other obligors are required to give bail for the payment on maturity, if they do not choose to pay immediately.
However, non-exhausted and non-interest debts, whose term would be more than one year from the date of the declaratory judgment, are only eligible for liabilities under deduction of the legal interest calculated from the declarative judgment to the maturity date.
In the event of an immediate payment by one of the co-ordinators of a promissory note or a non-exhausted currency letter, it is made under deduction of the legal interest for the time remaining to run until the expiry of the term.
Art. 23. As from the declarative judgment of bankruptcy, the course of the interests of any debt not guaranteed by a special privilege, by a debt or by a mortgage, shall be stopped in respect of the mass only.
Interests in secured claims may only be claimed on amounts arising from property that is assigned to the privilege, collateral or mortgage.
Art. 24. From the same judgment, any real estate or commercial action, any way of execution on furniture or buildings, may be followed, brought or exercised only against the curators. However, the court may receive the failed intervening party.
The decisions on the actions taken or brought against the bankrupt personally are not enforceable against the mass.
Art. 25. The declarative judgment of bankruptcy stops any seizure made at the request of the chirographary creditors and creditors enjoying a general privilege.
If, prior to this judgment, the day of the forced sale of seized furniture or buildings has already been fixed and published by the posters, this sale takes place on behalf of the mass.
Nevertheless, if the interest of the mass so requires, the Commissioner may, at the request of the curators, authorize the surrender or abandonment of the sale.
Art. 26. Any means of execution, in order to obtain payment of privileged claims on furniture dependent on bankruptcy, will be suspended until the termination of the notice of verification of claims, without prejudice to any precautionary measure and the right that would be acquired to the owner of the leased premises to take possession of it.
In the latter case, the suspension of the enforcement routes established in this section shall cease in full favour of the owner.
Nevertheless, if the interest of the mass requires it and provided that a realisation of the furniture may be expected that does not disadvantage the privileged creditors, the court may, upon request of the curators and after summoning the creditor concerned with a special privilege, order the suspension of execution for a period of up to one year from the declaration of bankruptcy.
CHAPTER III. - Administration and liquidation of bankruptcy
Section 1^re - General provisions
Art. 27. Curators are chosen from among those listed by the General Assembly of the Commercial Court.
Can only be admitted to the list referred to in paragraph 1, the lawyers listed in the Belgian Bar Order Table, justifying special training and providing guarantees of competence in liquidation proceedings.
The list also specifies, for each registrant, what bankruptcies it has already been designated as curator. In any event, it mentions the name of the bankrupt, the date of the designation of the curator and, where applicable, the date on which his mission ended. The list can be accessed at no cost.
Where the nature and importance of a bankruptcy command it, any other person who meets the training conditions and who has the guarantees provided for in paragraph 2 may be assistant as a curator, because of particular skills.
The King sets out the procedure for the presentation of candidates to the court and the deadlines for the examination of applications. The King may also set the requirements for training and the competence for liquidation procedures.
Art. 28. Any decision to refuse registration on the list of curators or omission of registration may be appealed to the Court of Appeal. The proceedings are held in private if the interested party requests it. The deadline for filing the appeal is one month from the date of notification of the decision. The court orders, if applicable, the listing.
Art. 29. A person on the list may be omitted at his or her own request by the General Assembly of the Commercial Court. The General Assembly also omits from the list persons who are no longer a lawyer listed in the Bar Order Table. A person may also be omitted from the list in accordance with a judgment rendered on a summons from the Public Prosecutor's Office. The proceedings are held in private if the interested party requests it.
Art. 30. At the time of their appointment, the designated curators shall be sworn before the Commissioner in the following terms:
"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 Konig, Gehorsam der Verfassung und den Gesetzen des belgischen Volkes. Ich schwöre den mir erteilten Auftrag auf Ehre und Gewissen, genau und ehrlich zu erfüllen. »
Art. 31. The commercial court may, at any time, replace the commissioner with another of its members, as well as replace the curators or one of them, increase or decrease the number.
Curators whose replacement is envisaged are previously called and, after the report of the Commissioner, heard in the board's chamber. The judgment is pronounced in a public hearing.
The judgment ordering the replacement of a curator shall be notified to the clerk's diligence. He is, at the diligence of the Registrar of the Commercial Court and within five days of his date, published by extract to the Belgian Monitor. A copy of the judgment is also transmitted for information to the Public Prosecutor's Office.
Art. 32. When a curator is prevented, because of a conflict of interest, from intervening, he asks, through a request addressed to the Commercial Court, the appointment of an ad hoc curator. The court ruled on the report of the commissioner.
When an ad hoc curator is appointed to replace the incumbent curator, he must confirm in writing the acceptance of his mission. At the end of his mission, the ad hoc curator prepares a report of his activities and enumerates his statement of fees and expenses by the commercial court, which decides after hearing the judge-commissary and the incumbent curator.
The licensee shall include the statement of fees and fees of the ad hoc curator in its final account for bankruptcy fees.
Art. 33. The fees of the curators are fixed according to the importance and complexity of their mission. They cannot be fixed exclusively in the form of an allowance proportional to the assets realized. The rules and scales for fixing fees are established by the King. The King determines the benefits and expenses covered by the fees. The King may also determine the costs that may be subject to separate compensation, as well as the terms and conditions of their arbitration.
A detailed statement of benefits to be paid is attached to any application for fees.
The judge may set a fee and charge on the request of the curators and the judge-compliant notice. Except in particular circumstances, the total of the costs and fees may not exceed three-quarters of the amount determined under the compensation rules established by the King. In no case shall provisional fees be waived when the curators do not return the statements provided for in section 34.
Art. 34. In the sixth and twelfth months of the first year of liquidation of bankruptcy, the curators shall provide a detailed statement of the bankruptcy.
This state, which includes the indication of revenues, expenses, distributions, and what remains to be liquidated, is deposited in the bankruptcy file. The status of claims challenges is also specified.
From the second year of liquidation, the detailed statement must no longer be submitted to the Commissioner and filed on the bankruptcy file every year.
Art. 35. The Commissioner is specifically responsible for speeding up and monitoring operations, management and liquidation of bankruptcy; reports to the hearing of all disputes arising out of bankruptcy, except for the exception set out in paragraph 6; it orders the urgent measures necessary for the security and preservation of the property of the mass, and presides the meetings of the creditors of the bankrupt.
In the event of the failure of the Commissioner, the President of the Court orders his replacement.
When the Commissioner reports on the disputes arising from bankruptcy, he cannot be part of the seat.
The judge-commissioned member may conduct any acts outside his or her borough, if he or she considers that serious or urgent circumstances require him or her.
The orders of the Commissioner are motivated and enforceable by provision. Appeals against these orders are brought before the court.
The Commissioner does not report on claims to be admitted to liabilities.
Art. 36. The King's attorney can attend all bankruptcy operations, consult the bankruptcy file at any time, read the bankrupt's books and papers, check his situation and be given by the curators all the information he deems useful.
Art. 37. Rulings in bankruptcy, other than the declarative judgment of bankruptcy and the judgment setting the date of termination of payment are subject to appeal in accordance with the Judicial Code. These judgments are enforceable by provision.
They are not subject to opposition or appeal:
1. The judgments relating to the appointment or replacement of the Commissioners or curators;
2. the judgments that decide on the disputes concerning the issue to the bankrupt, natural person, and his family of the furniture and effects necessary for their own use, as well as the provision of food aid to the bankrupt, natural person, and his family;
3. judgments that authorize the sale of effects or goods belonging to bankruptcy, or authorize in accordance with section 25, the surrender or abandonment of the sale of seized objects;
4. Judgments on appeals against the orders of the Commissioner within the limits of his powers.
Section 2. - formalities and bankruptcy management
Art. 38. The declarative judgment of bankruptcy and that which has subsequently fixed the termination of payment are, by the care of the curators and within five days of their date, published by excerpts at the Belgian Moniteter and in at least two newspapers or periodicals having a regional broadcast.
These extracts contain:
1. the name, first name, place and date of birth, the nature of the main commercial activity and the name under which this activity is carried out, the address and the place of the principal establishment and the registration number of the bankrupt in the trade register and 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 declarative judgment and the court that pronounced it;
3. where applicable, the date of the judgment fixing the date of termination of payment and the date of termination of payment;
4. the names, names and addresses of the curators;
5. the period in which claims must be declared;
6. The date and place of the closing session of the audit report.
It is justified of this insertion by the Belgian Monitor containing the said extracts.
If they find that it is possible that the bankruptcy must be closed for insufficiency of assets, the curators ask the Commissioner to be exempt from the obligation to publish in newspapers or periodicals with regional distribution. The publication fees that are not covered by the asset will be borne by the curators.
Art. 39. For each bankruptcy, a file containing:
1° a true copy of the declarative judgment of bankruptcy, the judgment setting the date of termination of payment and the decisions rendered on appeal against such judgments;
2° excerpts from the publications provided in section 38;
3° the case beyond a true copy of the orders made under articles 41, § 2, and 43, alinea 3;
4° the minutes of descent on the premises and the inventory provided for in section 43;
5° the record of verification of claims;
6° the table provided for in section 71;
7° the reports and statements prepared by the curators, provided for in articles 34 and 52;
8° written orders issued by the Commissioner;
9° the list of transactions and related approvals referred to in Article 58.
Any interested person may take a free knowledge of the file and obtain a copy of the file upon payment of the transplant fees.
Art. 40. The curators shall enter office immediately after the declarative judgment and after taking the oath provided for in Article 30 before the Commissioner.
They manage bankruptcy in good family father, under the supervision of the commissioner.
Art. 41. § 1^er. If applicable, the curators require on the field the affixing of the seals in the manner provided for in § 2.
Seats can be affixed to stores, countertops, boxes, wallets, books, magnetic supports, including computer supports, furniture and bankrupt effects.
In the event of a bankruptcy of a company whose all or part of the partners are jointly responsible for the debts, the seals are, if any, affixed not only to the principal seat of the company but to the domicile of each of the solidarity partners.
§ 2. Curators may request the Commissioner to order the affixing of the seals, either by request or by a verbal statement made by the Registrar.
Art. 42. The descent on the premises is carried out by analogy according to the rules laid down in articles 1010, paragraph 1, 1011, 1013 and 1015, the first sentence of the Judicial Code.
Art. 43. As soon as they enter office, the curators proceed, without dismembering and under the supervision of the Commissioner, to the inventory of the property of the bankrupt, which is present or duly called. The Commissioner signs the inventory. The signed inventory is filed at the court office to be attached to the bankruptcy file.
The inventory describes separately each of the assets under section 16, paragraph 2.
Curators may, with the permission of the Commissioner, be assisted, under their responsibility, for the drafting of the inventory as well as for the estimation of objects, for the conservation of assets and for their realization, by whom they deem appropriate.
Art. 44. In the event of a declaration of bankruptcy after death, where an inventory has not been made prior to that declaration, or in the event of the death of the bankrupt before the opening of the inventory, it shall be carried out immediately in the forms of section 43, in the presence of the heirs or those duly called.
Art. 45. The completed inventory, the goods, the money, the papers, the active securities, the furniture and effects of the debtor, are handed over to the curators who, at the foot of the said inventory, declare to take charge of it.
Curators can entrust the archives to the bankrupt or one of the leaders of the failed society. If applicable, they are returned to them on their request and on their receipt.
If the curators are not able to return the archives, they are required to keep them for a period of ten years following the opening of the bankruptcy, unless it is not closed at that time, in which case they will have to keep them until the expiration of a period of six months after the bankruptcy closes.
Curators must keep the records they made after bankruptcy in accordance with the bar-law provisions.
Art. 46. As soon as they enter office, the curators decide without delay whether they pursue the execution of the contracts concluded before the date of the declarative judgment of bankruptcy and to which this judgment does not end.
The party that contracted with the bankrupt may put the curators on hold to make this decision within fifteen days. If no extension of time has been agreed or if the curators do not make a decision, the contract is presumed to be terminated by the curators upon the expiry of that period; the debt of damages and interests, if not due to the contracting party because of the non-performance, enters the mass.
When the curators decide to execute the contract, the co-contractor shall be entitled, in charge of the mass, to the performance of this undertaking as it relates to benefits made after bankruptcy.
Art. 47. If the interest of the creditors allows, the court, at the request of the curators or of any interested person, on the report of the Commissioner, and after hearing the curators and staff representatives on the board of business or, failing that, of the committee for prevention and protection at work or, failing that, the union delegation if the latter was constituted or, failing that, a delegation of the staff, may authorize the operation of the bankrupt At the request of the curators or any interested person and the report of the Commissioner, the court may at any time modify or revoke this measure.
The curators may immediately after the bankruptcy judgment and after having joined the representative trade unions or, if not, with the present staff, in the interest of the mass and pending the court's decision under paragraph 1, authorize the continuation of commercial operations.
Art. 48. Curators may, with the permission of the Commissioner, issue to the bankrupt, a natural person, and his family the necessary furniture and effects for their own use. Curators draw up an inventory of these objects. They may also, with the permission of the Commissioner, allocate food to the bankrupt, natural person, and his family.
Any disputes relating to the application of this article shall be addressed by request to the court.
Art. 49. Curators may, notwithstanding any appeal against the declarative judgment of bankruptcy and the authorization of the commissioner, immediately sell the assets subject to depletion or imminent depreciation.
Art. 50. The letters and messages sent to the bankrupt are given to the curators who open them; if the bankrupt is present, he attends their opening. Letters and messages that do not relate exclusively to the commercial activity of the bankrupt are transmitted or communicated to the address indicated by the bankrupt.
After the termination of the record of verification of claims, the bankrupt, a natural person, may request the commissioner's permission to proceed personally with the opening of the letters and messages addressed to him.
In the event of a refusal, the Commissioner is required to justify his decision, in accordance with section 35.
Art. 51. The curators seek and recover on their quits, all receivables or amounts due or faili.
Debts from sales and collection by curators are paid to the Caisse des dépôts et consignations within eight days of the recipe. However, the commissioner may, upon request, authorize the curator to retain a limited amount on a bank account, to finance current transactions. In its order, the Commissioner determines the maximum amount that the curator is authorized to retain on the account.
In the event of a delay, curators shall have the commercial interests of the amounts they have not paid, without prejudice to the application of section 31.
Art. 52. The payment of the amounts attributed to the creditors is made by the curators in the light of a statement of distribution referred to by the Commissioner and filed in the bankruptcy file.
The sums due to the curators as fees or allowances provided for in section 33, together with their expenses and disbursements, shall be paid to them on the basis of a statement referred to by the Commissioner.
The sums that at the end of the bankruptcy could not be distributed are paid to the Caisse des dépôts et consignations to the creditors concerned.
Art. 53. The bankrupt or the manager and administrators of the bankrupt corporation shall visit all summonses made to them, either by the commissioner's judge or by the curators and provide the commissioner's and curators with all the information required.
The bankrupt or manager and administrators of the bankrupt corporation are required to notify the curators of any change of address. Otherwise, the summonses are supposed to be validly made at the last address that the individual communicated to the curators.
Art. 54. The curators call the bankrupt to them to close and stop the books and scriptures in his presence.
Art. 55. The Commissioner is authorized to hear the bankrupt, the workers he occupies, and any other person in respect of both the audit of books and accounting records, and the causes and circumstances of the bankruptcy.
Art. 56. When a merchant was declared bankrupt after his death or when the bankrupt died after the bankrupt's declaration of bankruptcy, his heirs may appear or be represented in all bankruptcy transactions.
Art. 57. From their inception, curators are held, under their personal responsibility, to make all acts for the preservation of the rights of the bankrupt against his debtors. .
They are also required to request the registration of mortgages on the property of the bankrupt's debtors, if not required by him.
They are also required to register on the buildings of the bankrupt whose existence they know.
The inscriptions in question are taken in the name of the mass by the curators, who attach a copy of the bankruptcy judgment to their slip.
Art. 58. The curators may, with the permission of the commissioner's judge, and the bankrupt duly called, transfer on all the disputes that the mass interests, even those relating to real estate shares and rights.
When the transaction relates to real property rights, or when the subject matter is of an indeterminate value or exceeds 500,000 francs, the transaction is mandatory only after being approved by the court, on the report of the Commissioner. The bankrupt is called to the registration.
The curators may also, with the authorization of the commercial court, the bankrupt duly called, issue the litidecree oath to the opposing party, in the disputes in which bankruptcy will be initiated.
Art. 59. Curators can use the bankrupt to facilitate and inform their management. The Commissioner will determine the conditions of his work.
Art. 60. In any bankruptcy, the curators, within two months of their entry into office, are required to provide the Commissioner with a brief or summary record of the apparent state of bankruptcy, its main causes and circumstances, and the characters it appears to have.
The Commissioner immediately forwards the brief with his comments to the King's Prosecutor. If he has not been handed over to him within the prescribed time, he shall notify the King's Prosecutor and inform him of the causes of the delay indicated by the curator.
Art. 61. If the bankrupt or the manager and administrators of the bankrupt corporation are prosecuted by the head of an offence under sections 489, 489bis or 489ter of the Criminal Code or if a warrant to bring or order has been issued against them, the King's prosecutor shall promptly inform the commissioner and the curators.
CHAPTER IV. - Declaration and verification of claims
Art. 62. In order to participate in a distribution or to personally exercise any right of preference, creditors are required to file the declaration of their claims with their securities to the Registry of the Commercial Court by the day indicated by the declarative judgment of bankruptcy. Upon request, the clerk shall issue a receipt.
To this end, creditors are notified by the publication to the Belgian Monitor and by a circular that the curators address them as soon as these creditors are known.
This circular indicates the place, day and time fixed for the closing of the claims audit report.
Art. 63. Each creditor's statement sets out his or her identity, profession and domicile, or, if it is a legal person, his or her principal business activity, identity and head office, the amount and causes of his or her debt, the privileges, mortgages or leases that are affected and the title of o· it results.
This statement is completed by an assertion in the following terms:
"I affirm in honour and conscience that my debt is sincere and true"; or
"Ik verklaar in eer en geweten dat deze schuldvordering waar en oprecht is"; or
"Ich erkläre hiermit auf Ehre und Gewissen dass meine Forderung aufrichtig und wahrheitsgetreu ist".
It is signed by the creditor, or on behalf of the creditor by a power foundation; in that case, the power of attorney shall be annexed to the declaration, and shall set out the amount of the debt and contain the affirmation prescribed by this article. .
Art. 64. Without prejudice to the application of international conventions, the declaration contains, on the part of the creditor not domiciled in a State of the European Union, an election of domicile in the jurisdiction where the court has declared bankruptcy.
In the absence of having elected domicile, any meanings and information may be made or given to the court office.
Art. 65. The audit of claims is performed by the curators in the presence of the bankrupt or the bank duly called. The titles of the claims are approached to the books and writings of the bankrupt.
The bankrupt is also heard on the liquidation of bankruptcy.
Art. 66. After the declaration of each claim and up to the day fixed for the debates on the disputes it raises, the Commissioner may, even on his own motion, order the personal appearance of the creditor or his or her power or any person who may provide information. He's making records of them. It may also order the representation of the creditor's books or request, under a compulatory, that an excerpt made by the local judge be reported.
Art. 67. The curators, at the expiry of the debt audit, shall prepare minutes of the audit, which shall be signed by themselves, by the Commissioner and by the Registrar.
Art. 68. At the meeting for the closing of the audit report, the curators shall, at the request of any interested person, give knowledge of any declared receivable and its possible contestation.
The judge-commissary shall refer to the court the disputes relating to unallowed claims and shall determine the date and time of the proceedings.
If the curators challenge the amount of a declared debt or cause of preference invoked, they immediately notify the creditors concerned by a registered letter to the position; the hearing shall be summoned to appear before the court to hear a decision on the debate at the date and time, or, where applicable, on the dates and times fixed by the Commissioner.
Art. 69. The bankrupt and creditors may provide counter-claims to the auditors made and made, either during the closing session of the debt audit report or later.
The counter-claims must be, in the latter case, formed by exploit of judicial officer served to the curators and the creditor whose debt is contradicted, within one month of the closing date of the verbatim record of receivables, or within one month of the admission of a debt if the debt was admitted only after the conclusion of the minutes of the audit.
The exploit will contain quotes from the curators and the creditor, as well as from the bankrupt before the court for the purpose of deciding on the liquidation of the debt subject to the counterclaim.
Art. 70. On the day fixed for the debates on the contestations, the court shall rule, without prior citation, if it is possible by the same judgment, as to all the disputes. The judgment is rendered after hearing, if they arise, the curators, the bankrupt, the opposing and declaring creditors. His judgment is not subject to opposition.
Disputes that are not taken immediately in deliberation are disjointed and then dealt with in accordance with the ordinary procedure, all outstanding cases.
Art. 71. It is held in the Registry, under the responsibility of the Registrar, for each bankruptcy, a table divided into columns and containing, for each declared receivable, the following statements:
1° the order number;
2° the identity, occupation and domicile, or, if it is a legal person, the principal commercial activity, the identity and head office of the creditor who has deposited his debt and titles; .
3° the amount of the declared receivable;
4° the privileges and mortgages to which the creditor claims;
5° admission or contestation;
6° the summary and the date of the decision relating to the contestation;
7° the other information that it may be useful to bring to the attention of the concerned.
Art. 72. In the absence of a declaration and affirmation of their claims within the time limit set by the declarative judgment of bankruptcy, known or unknown failings are not included in the distributions.
Until the meeting referred to in Article 79, the defectors have the right to act in admission without their application being able to suspend the ordered distributions. They can only claim a dividend on the assets not yet distributed. The costs and expenses to which the verification and admission of their claims are borne by them.
The right to act in admission shall be prescribed by three years from the date of the declaratory judgment, except for the debt recognized in an action or warranty, prosecuted or brought in the course of liquidation.
The right to act in the admission of a debt recognized during the liquidation by another court than that of bankruptcy is prescribed by six months from the final judgment handed down in force of judgment.
CHAPTER V. - From the summary closing procedure
Art. 73. If, at any time, it is recognized that the asset is not sufficient to cover the alleged costs of administration and liquidation of bankruptcy, the court may, at the request of the curators, the bankrupt duly called by judicial fold containing the text of this article, close the operations of bankruptcy. In this case, creditors return to the exercise of their individual actions against the person and property of the bankrupt, unless the court declared the bankrupt to be excusable.
The decision to close bankruptcy operations, when it is recognized that the asset is not sufficient to cover the alleged costs of administration and liquidation of bankruptcy, puts an immediate end to the existence of the legal entity, except in the event of an excusability.
Section 180 of the Commercial Corporations Acts, coordinated on November 30, 1935, is applicable.
The closure of the bankruptcy for lack of assets can only be pronounced when it is recognized that the curators did what was in their power to hand over to workers the social documents provided by law.
The judgment pronouncing the closure of the bankruptcy for insufficiency of assets is published by extracts to the Belgian Monitor, to the diligence of the curators.
The judgment orders, if it buys, the accountability of the curators. The court of commerce is in dispute.
The King may determine the procedure for recording assets that would appear later and the fate of these assets in the event of new liabilities.
Art. 74. The execution of the closing judgment, pronounced under Article 73, is suspended for one month from the date of publication to the Belgian Monitor.
CHAPTER VI. - The liquidation of bankruptcy
Art. 75. § 1^er. When all claims are definitively admitted or rejected by an enforceable judgment, even if appealed, the curators proceed to liquidation of 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. In particular, curators sell buildings, goods and household effects, all under the supervision of the commissioner by complying with the provisions of sections 51 and 52, and without calling the bankrupt. .
They may transfer in the manner prescribed by section 58 on any species of law belonging to the bankrupt, notwithstanding any opposition on its part.
§ 2. The curators may, the bankrupt duly called by judicial fold, containing the text of this article, request the court of commerce the authorization to liquidate the bankruptcy in the manner indicated above, upon the close of the notice of verification of claims or at any later date. The court ruled on the report of the commissioner.
§ 3. When the creditors or the bankrupt feel that a planned accomplishment may harm them, they may refer to the designation of an ad hoc curator. The latter may request the Commercial Court to prohibit the sale that is clearly likely to undermine the rights of the said parties.
§ 4. At the request of the curators, the court may, as part of the liquidation of bankruptcy, approve the transfer of an active business in accordance with conventional terms, the execution of which may be pursued by the curators or after the bankruptcy has ended, by any interested person.
Art. 76. The Commissioner may in any circumstances convene a meeting of the creditors or some of them.
On the other hand, three years after the declarative judgment of bankruptcy, no later than one month, no later than three months after the anniversary of the judgment, a meeting of creditors is held under the chairmanship of the judge-commissary to hear the report of the curators on the evolution of the liquidation. This assembly may subsequently be called by the judge-commissary at the request of a creditor.
The Commissioner orders the summons of creditors registered in bankruptcy and fixes the place, day and time of the assembly. This order is issued to the Belgian Monitor at the clerk's care, at least one month before the date of the meeting. However, the Commissioner may authorize the summons of creditors by circular letter.
The bankrupt is duly called to this assembly. It can be heard on the evolution of liquidation.
Assembled creditors may, by a simple majority, charge the curators to treat all or part of the rights or actions whose execution would not have taken place, and to alienate them.
Art. 77. The Commissioner orders, where appropriate, a distribution between the creditors and determines its quotity. Any payment made on the order of the commissioner or with his or her authorization shall result in discharge for the curators.
Art. 78. If there are creditors whose claims declared and asserted within the prescribed period have given rise to disputes not yet definitively tried, no distribution shall be made only after the reservation of the share corresponding to their claims as declared or affirmed.
Art. 79. When the bankruptcy is terminated, the bankrupt and the creditors are summoned by the curators, by order of the commissioner, to the accounts of the curators. The simplified account of curators resuming the amount of the asset, the fees and fees of the curators, the debts of the mass and the distribution to the different categories of creditors is attached to this convocation.
In this assembly, the account is debated and arrested. Creditors give their opinion on the bankrupt's excusability.
The balance of the account is the subject of last distribution. When the final account presents a possitive balance, the bank is entitled to the bankrupt.
Art. 80. On the report of the Commissioner, the court orders the bankruptcy to be closed, after deciding, as appropriate, the account disputes and redressing the bankruptcy if applicable. .
The judge-commissary shall present to the court, in the board's chamber, the deliberation of creditors regarding the bankrupt's excusability, and a report on the circumstances of bankruptcy. The court decides whether or not the bankrupt is excusable. The decision on the excusability is subject to third-party opposition by creditors individually within the month of publication, or by the bankrupt within the month of notification of the closing judgment.
The court may decide that the judgment ordering the closure of the bankruptcy will be published by extract to the Belgian Monitor. This judgment must be published when the court declares the bankrupt excusable.
Except for its execution, the bankruptcy ends the duties of the curators; She's taking general discharge.
Art. 81. The bankrupt or legal person whose directors have been convicted of an offence under section 489ter of the Criminal Code for theft, forgery, forgery, forgery, forgery, forgery, forgery or misuse of trust, or for depositaries, guardians, administrators or other accountants, who have not rendered and sold their account in due time.
Art. 82. If the bankrupt is declared excusable, he can no longer be prosecuted by his creditors.
If the bankrupt is not declared to be excusable, creditors shall recover the right to exercise their share on their property individually.
Art. 83. The decision of an inexcusability of a failed legal entity in accordance with section 80 puts an immediate end to its existence. Section 180 of the Commercial Corporations Acts, coordinated on November 30, 1935, is applicable.
The King may determine the procedure for recording assets that would appear later and the fate of these assets in the event of new liabilities.
CHAPTER VII. - Different creditor species and their rights
Section I^re. - Bonds and bonds
Art. 84. The creditor with commitments subscribed, endossed or guaranteed in solidarity by the bankrupt and other co-manufactured who are in bankruptcy, participates in the distributions in all the masses, and figures for the nominal value of its title up to complete payment.
Art. 85. No recourse, because of the dividends paid, is open to the bankruptcy of the co-mandated against each other, except when the meeting of the dividends that would give these bankruptcies would exceed the amount of the principal receivable and by-laws, in which case this surplus is devolved, according to the order of the commitments, to those who would have the others for guarantors.
Art. 86. If the creditor with solidarity commitments between the bankrupt and other co-mandated, or secured by a bail, has received, before bankruptcy, a deposit on his debt, he is understood in the mass only under the deduction of that deposit, and retains, for what remains due, his rights against the co-mandated or the bond.
Art. 87. The co-ordinate or bond that made the partial payment is included in the mass for all that he paid to the bankrupt's discharge.
Section II. - Loans of pledges and creditors
privileged on movable property
Art. 88. Curators may, at any time, with the permission of the Commissioner, withdraw the pledges to the benefit of bankruptcy by paying the debt.
Art. 89. If the pledge is not withdrawn by the curators, and if it is sold by the creditor for a price that exceeds the debt, the surplus is recovered by the said curators. If the price is less than the debt, the creditor nanti makes a contribution for the surplus in the mass as an ordinary creditor.
Art. 90. For workers referred to in Article 1 of the Act of 12 April 1965 concerning the protection of the remuneration of workers, the remuneration, as defined in Article 2, paragraph 1, of the said Act and the allowances included in the remuneration and which are due to the same persons for the breach of their undertaking, are, without regard to the fact that the termination took place before or after the declaration of bankruptcy, admitted to the number of privileged debts to the same degree .
Section III. - Rights of privileged hypothecary creditors on buildings
Art. 91. When the distribution of the price of the immovable property is made earlier than that of the price of the movable property, or simultaneously, the privileged or unfilled creditors on the price of the immovables compete in proportion to what remains due to them with the chirographary creditors, on the denares devolved to the chirographary mass, provided that their claims have been asserted and verified in the above forms.
Art. 92. If, prior to the distribution of the price of the immovables, one or more distributions of deniers are made, the creditors privileged on the immovables and mortgage creditors are involved in these distributions in the proportion of the total amount of their debt, the distraction as described below.
Art. 93. After the sale of the buildings and the settlement of the order between the mortgage and privileged creditors, those of them who come in order usefully on the price of the buildings, for the whole of their debt, only affect the amount of their hypothecary collocation under the deduction of the sums by them received in the chirographary mass.
The sums thus deducted do not remain in the mortgage mass, but return to the chirographary mass for the benefit of which it is distracted.
Art. 94. In respect of mortgage creditors that are not partially collocated in the distribution of the price of the buildings, the following is done. Their rights to the chirographary mass are definitively settled according to the sums they remain creditors after this real estate collocation, and the denares they have touched beyond that proportion, in the previous distribution, they are retained on the amount of their mortgage collocation, and reserved in the chirographary mass.
Art. 95. Mortgage creditors that do not come in order are considered to be chirographers and subject to the effects of all the operations of the chirographary mass.
Section IV. - The effects of the bankruptcy of one of the spouses
in respect of the spouse
Art. 96. The prior consent of the spouse of a bankrupt spouse or the authorization of justice provided for in articles 215, § 1^er, 1418 and 1420 of the Civil Code, must not be obtained by the curators for the sale of furniture and buildings dependent on both the property of the spouse bankrupt and the common heritage.
Art. 97. If, after a bankruptcy statement and before the closing of the bankrupt, the marital regime is dissolved, neither the spouse of the bankrupt, nor the curators can avail themselves of the benefits determined in the marriage contract.
Art. 98. The payment of the common debts contracted by the bankrupt in the exercise of his profession and which are not resolved by the liquidation of bankruptcy, cannot be continued on the property of the bankrupt's spouse.
CHAPTER VIII. - Distributions to creditors
Art. 99. The amount of the assets of the bankrupt, deducting the costs and expenses of the administration of bankruptcy, the relief that would have been granted to the bankrupt and his family, and the sums paid to the depriviliated creditors, is distributed among all creditors, to the creditors of their claims.
CHAPTER IX. - From the sale of the bankrupt's buildings
Art. 100. If there is no prosecution for expropriation of buildings, started before the pronouncement of bankruptcy, the curators alone are allowed to make the sale. The Commissioner orders the sale on the request of curators or a mortgage creditor. The forms prescribed by articles 1190 et seq. of the Judicial Code are followed. .
The foregoing provisions are not applicable to the registered first mortgage creditor who may, after the closing of the debt verification report, sell the hypothec property in accordance with the provisions of Articles 1560 to 1626 of the Judicial Code. However, if the interest of the mass requires it and provided that a realization of the hypothec property may be expected that does not disadvantage the mortgage creditors, the court may, upon request of the curators and after summoning the registered mortgage creditor by judicial fold, order the suspension of execution for a period not exceeding one year from the bankruptcy declaration.
If the property is owned by the separate bank of the property and its spouse, the Commercial Court may order the sale of the indivis property, in accordance with the rights of the other spouse, duly called. The sale can in this case be done at the request of the curators alone.
If the mortgage transcript of the real estate seizure has taken place, the curators can always stop the effects of it, by proceeding in the same forms, with the authorization of the commercial court, the bankrupt called, on the sale of the seized buildings. In this case, they notify the pursuer and bankrupt creditor at least eight days before the sale, the place, day and hours at which it will be done. Similar meaning is made within the same period to all creditors registered in their domicile elected in the registration slip.
CHAPTER X.
Art. 101. Bankruptcy does not affect the right of claim of the owner of the property held by the debtor.
However, movable property sold with a clause suspending the transfer of ownership to the full payment of the price may only be claimed from the debtor, in accordance with this clause, if it has been established in writing at the latest at the time of the issuance of such property. In addition, these assets must be found in kind at the debtor. Thus, they cannot become immovable by incorporation or be confused with another piece of furniture.
As soon as the claim is due, the claim action must be carried out prior to the closing of the debt audit report.
Art. 102. Can be claimed in the event of bankruptcy, commercial or other unpaid securities, and in kind in the bankrupt's portfolio at the date of the declarative judgment of bankruptcy, when these remittances were made by the owner with a simple mandate to collect and retain the value at his disposal, or when they were specially allocated to specified payments.
Art. 103. Can also be claimed, as long as they exist in kind, in whole or in part, the goods recorded to the bankrupt as a deposit or to be sold on behalf of the sender.
Can even be claimed the price or part of the price of the said goods, which was neither paid nor paid in value, nor compensated in current account between the bankrupt and the buyer.
Art. 104. Can also be claimed the goods shipped to the bankrupt, as long as the tradition has not been carried out in its stores, or in those of the commissioner responsible for selling them on behalf of the bankrupt.
However, the claim is not admissible if, prior to their arrival, the goods were sold without fraud, bills of lading, or on invoices and letters of car signed by the shipper.
The claimant must respect the rights of the secured creditor seized by a bill of lading or a consignment note.
Art. 105. The claimant is required to pay the advances received by the claimant prior to the resumption to the mass, as well as any advances made for freight or car, commission, insurance or other costs, and to pay the amounts due for the same reasons. .
Art. 106. Can be held by the seller the goods by him sold that are not delivered to the bankrupt, or that have not yet been shipped, either to him or to a third party on his behalf.
Art. 107. In the case provided for in sections 104 and 106, and under the authority of the Commissioner, the curators are entitled to demand the delivery of the goods by paying the agreed price between the seller and the bankrupt.
Art. 108. Curators may, with the approval of the Commissioner, admit claims for goods, commercial effects and other goods.
If the interest of the mass so requires, the curators may, with the permission of the Commissioner, object to the claim provided for in section 101 by paying the agreed price between the seller and the bankrupt, excluding interest and penalties, which if any will remain debts in the mass.
If there is a dispute, the court shall rule at the request of the persons concerned on the report of the Commissioner.
PART III. - Rehabilitation
Art. 109. The unexplained bankrupt who has paid in full principal, interest and expenses, all amounts due to him, may obtain his rehabilitation.
If he is a partner of a partnership, he can only obtain it after he has justified that all the debts of the corporation have been paid in full principal, interest in costs.
The bankrupt can be rehabilitated after his death.
Art. 110. The alleged bankrupt is deemed rehabilitated.
Art. 111. Any request for rehabilitation is addressed to the court of appeal in the jurisdiction of which the bankrupt is domiciled. The applicant attached to his request the warranties and other supporting documents.
The Attorney General near the Court of Appeal, on the communication made to him of the request, in the address of the certified shipments of him to the King's Prosecutor and to the President of the Court of Commerce of the applicant's domicile, and if he has changed his domicile since the bankruptcy, to the King's Prosecutor and to the President of the Court of Commerce o· it took place, in charge of collecting all the information which is within their scope on the facts.
To this effect, at the diligence of the King's prosecutor, copy of the said request is inserted by extract to the Belgian Monitor.
Art. 112. Any creditor who has not been paid in full of his debt in principal, interest and expenses, and any other interested party, may, in the month of publication to the Belgian Monitor, file opposition to the remediation by simple act in the Registry, supported by supporting evidence. The opponent creditor may never be a party to the rehabilitation procedure.
Art. 113. After the expiry of the period provided for in Article 112, the Crown Prosecutor and the President of the Commercial Court shall, each separately, transmit to the Attorney General near the Court of Appeal, the information they have collected and the oppositions that may have been formed; they join their opinion on the application.
The Attorney General at the Court of Appeal shall render, at all, a decision to admit or reject the request for rehabilitation. If the application is rejected, it may be reproduced only after an interval year.
Art. 114. The remedial order is addressed to both the King's Attorney and the President of the courts to which the application was made. These courts make it a transcript on their records.
PART IV. - Miscellaneous provisions concerning bankruptcy
CHAPTER I. - Amendments to the Judicial Code
Art. 115. In section 631 of the Judicial Code, paragraphs 1 and 2 are replaced by the following paragraph:
« § 1^er. The comprehension trading court to declare bankruptcy is the one in which the merchant has his principal place of business or, if it is a legal person his head office, on the day of the admission of bankruptcy or the application to court. In the event of a change in the seat of a legal person within one year of the bankrupt application, bankruptcy may also be requested before the court in which the legal entity had its seat within the same period. This period takes place from the publication of the change of siege at the Belgian Monitor. The court's first case is preferred to the court's subsequent case. .
The competent business court to declare bankruptcy pursuant to section 3 of the Bankruptcy Act is that in the jurisdiction of which the bankrupt owns the institution. In the event of a plurality of establishments, the court shall have jurisdiction.
When bankruptcy is declared in Belgium, the disputes relating to it are the exclusive jurisdiction of the court in which it is open.
Paragraph 1 applies to the procedure provided for in section 8 of the Bankruptcy Act. The court that ordered the divestment of property management, is the only competent authority to make the debtor bankrupt in the period provided for in section 8, paragraph 5, of the Bankruptcy Act. »
Art. 116. Section 1193ter of the same Code, inserted by the Act of 18 February 1981 and amended by the Act of 10 March 1983, is replaced by the following provision:
"Art. 1193ter. - In the case provided for in Article 1190, curators may apply to the Commercial Court for the authorization to sell voluntarily. The curators submit to the court a bill of sale prepared by a notary, designated by the judge-commissary, and set out the grounds for which the auction is required.
They include a report of expertise prepared by the expert they have designated and a certificate from the mortgage curator, after the bankruptcy statement referring to existing registrations and any transcript of command or seizure relating to buildings that must be sold. All persons with marginal registration or mention on the building concerned and the bankrupt must be heard or duly called by judicial fold. They may ask the court that the authorization to sell voluntarily is subject to certain conditions, such as setting a minimum selling price.
Authorization is granted if the interest of the nearly mass requires it and the opinion of the Commissioner. The order must expressly state the reason for the sale of a voluntary arrangement to serve the interest of the bankrupt mass. The use of this form of sale may be subject to the setting of a minimum price.
The sale must take place in accordance with the draft act admitted by the court and the notary's department that wrote it. The price is distributed in accordance with articles 1639 and following. The applicant or stakeholder creditors may appeal from the court order in accordance with section 1031. »
CHAPTER II. - Amendments to criminal laws
Art. 117. Section 1 of Chapter II of Title IX of Book II of the Criminal Code, as amended by the Act of 10 October 1967, is replaced by the following title: "Section 1. - Offences related to bankruptcy."
Art. 118. Section 489 of the same Code is replaced by the following provision:
"Art. 489. - Are punished by imprisonment of one month to one year and a fine of one hundred francs a hundred thousand francs or one of these penalties only, merchants in a state of bankruptcy within the meaning of section 2 of the Bankruptcy Act or the rulers, in law or in fact, of business corporations in a state of bankruptcy, who will have:
1° contracted, for the benefit of third parties, without sufficient counterpart, of excessively significant commitments in respect of the financial situation of the company;
2° without legitimate impediment, failing to fulfil the obligations prescribed by section 53 of the Bankruptcy Act. » .
Art. 119. An article 489bis, as follows, is inserted in the same Code:
"Art. 489bis. - shall be punished by imprisonment from one month to two years and a fine of one hundred francs to five hundred thousand francs or one of those penalties only, the persons referred to in section 489, who shall:
1° in the intention of delaying the declaration of bankruptcy, makes purchases to sell under the course or that will be delivered to borrowings, effect circulations and other ruinous means of obtaining funds;
2° supposed of expenses or losses or could not justify the existence or use of any or all of the assets as it appears from the accounting records and books on the date of termination of payment and any property of any kind obtained after that time;
3° in the intention of delaying the bankruptcy declaration, paid or favoured a creditor to the damage of the mass;
4° in the same intention, failing to make the acquaintance of bankruptcy within the period prescribed by section 9 of the Bankruptcy Act; knowingly fails to provide, on the occasion of the admission of bankruptcy, the information required by section 10 of the Act; knowingly provided inaccurate information on the occasion of the bankruptcy or at a later date to requests from the Commissioner or the curators. »
Art. 120. An article 489ter, as follows, is inserted in the same Code:
"Art. 489ter. - shall be punished by imprisonment from one month to five years and a fine of one hundred francs to five hundred thousand francs, the persons referred to in section 489 who, with fraudulent intent or intent to harm, shall:
1° diverted or concealed part of the asset;
2° subtracts, in whole or in part, from the books or accounting documents referred to in chapter I of the Act of 17 July 1975 on the accounting and annual accounts of enterprises; the attempt of these offences is punishable by imprisonment from one month to three years and a fine of one hundred francs to five hundred thousand francs.
The perpetrators of such offences or their attempts may, moreover, be sentenced to the prohibition in accordance with section 33. »
Art. 121. An article 489quater, as follows, is inserted in the same Code:
"Art. 489quater. - Public action on offences referred to in articles 489, 489bis and 489ter is prosecuted regardless of any action that may be prosecuted before the Commercial Court. The bankruptcy may not, however, be contested before the criminal judge, if this condition has been the subject of a decision of the court of commerce or the court of appeal, passed in force of an order, at the end of a procedure to which the defendant was a party, either on a personal basis or as a representative of the failed society. »
Art. 122. An article 489quinquies, as follows, is inserted in the same Code:
"Art. 489quinquies. - Are punished by imprisonment from one month to two years and a fine of one hundred francs to five hundred thousand francs or one of these penalties only, those who, fraudulently, will have:
1° in the interest of the merchant or a commercial corporation declared to be bankrupt even in the absence of any intervention of that merchant or of the rulers, in law or in fact, of that company, subtracted, concealed or received all or part of the asset;
2° presented in bankruptcy and asserted, either on their behalf or by interposition of persons, assumed or exaggerated claims. »
Art. 123. An article 489sexies written as follows is inserted in the same Code:
"Art. 489sexies. - It is punishable by imprisonment from one month to five years and a fine of one hundred francs to five hundred thousand francs, the curator who was guilty of malversation in his management. It is also condemned to restitution and damages due to the mass of creditors. The perpetrator may also be sentenced to the prohibition in accordance with section 33. "
Art. 124. Section 490 of the same Code is replaced by the following provision:
"Art. 490. - Courts adjudicating a sentence of imprisonment under articles 489, 489bis, and 489ter shall order that their decisions be published, by extract, at the expense of the convict, to the Belgian Monitor.
This extract contains:
1° the names, names, place and date of birth, as well as the address and registration number in the register of the trade of convicts and possibly the social reason or name and head office of the registered business companies in bankruptcy of which they are the rulers of law or fact;
2° the date of the judgment or judgment and the court that pronounced it;
3° the offences that gave rise to the convictions and penalties imposed; where, because of the unit of intent, a single sentence was imposed by the head of one of the above-mentioned offences and other offences, all offences punishable by this single sentence will be mentioned. »
Art. 125. In section 623, paragraph 1, of the Code of Criminal Investigation, amended by the Act of 7 April 1964, the words "if he is a fraudulent bankrupt" are replaced by the words "if he has been convicted of an offence under section 489ter of the Criminal Code".
CHAPTER III. - Amendments to tax laws
Art. 126. In article 184bis of Royal Decree No. 64 of 30 November 1939 containing the Code of Registration, Mortgage and Registry Rights, inserted by the Act of 19 June 1986 and amended by the Act of 22 December 1989, a new paragraph shall be inserted between paragraphs 1 and 2, as follows:
"Paragraph 1 applies to liquidators and curators only in cases where the conviction, liquidation or collocation resulting from the payment, transfer or restitution of amounts or values is brought to their attention. »
Art. 127. In section 427, paragraph 4, of the Income Tax Code 1992, the words: "Section 447 of the Bankruptcy, Bankruptcy and Suspendence Act of 18 April 1851" are replaced by the words "Section 19 of the Bankruptcy Act".
Art. 128. In section 88, § 3, of the Act of 3 July 1969 implementing the Value Added Tax Code, as amended by the Act of 8 August 1980, the words "Article 447, paragraph 2, of Book III of the Commercial Code concerning bankruptcy, bankruptcy and suspended" are replaced by the words "Article 19, paragraph 2, of the Bankruptcy Act".
CHAPTER IV. - Miscellaneous changes
Art. 129. Section 16 of the Act of 18 November 1862 establishing the warrant system, paragraph 1^er is replaced by the following provision:
« § 1^er. The exercise of the rights conferred on the secured creditor by Articles 13, 14 and 15 is not suspended by the death of the debtor. »
Art. 130. Section 9 of the Act of 5 May 1872 revising the provisions of the Code of Commerce relating to gage and commission is replaced by the following provision:
“Art. 9. The exercise of the rights conferred on the secured creditor by the preceding articles is not suspended by the death of the debtor or the third leaser. »
Art. 131. In section 12, paragraph 4, of the Act of 23 June 1894 revising the Act of 3 April 1851 on mutualist companies, the words "that are in a state of bankruptcy or judicial prohibition, or that have disposed of property, as long as they have not paid their creditors in full" are replaced by the words "that are prohibited; those who have been declared bankrupt, as long as they have not paid their creditors in full."
Art. 132. In article 1 of Royal Decree No. 22 of 24 October 1934, prohibiting convicted cranes and bankrupts from performing certain functions, occupations or activities and conferring on the commercial courts the power to impose such prohibitions, as amended by the laws of 4 August 1978, 9 March 1989 and 22 December 1990, in paragraph 1 (g), the words "simple or fraudulent bankrupt" are replaced by the words "sing or fraudulent bankrupt" .
Art. 133. In article 1bis of the same order, inserted by the law of 4 August 1978, the words "simple or fraudulent bankruptcy" are replaced by the words "one of the offences referred to in articles 489, 489bis and 489ter of the Criminal Code".
Art. 134. In article 3bis, § 5, of the same order, inserted by the law of 4 August 1978, the following amendments are made:
1° paragraph 1 is replaced by the following paragraph:
"The bankrupt or one of the persons assimilated to the bankrupt under § 1^er are quoted before the Commercial Court at the request of the Public Prosecutor's Office or any creditor who has remained unpaid in bankruptcy. »;
2° Paragraph 4 is replaced by the following paragraph:
"If so, the Public Prosecutor's Office is heard in its opinion. »
Art. 135. In section 10 of the Act of 15 June 1935 concerning the use of languages in judicial matters, replaced by the Act of 23 September 1985, the words "In respect of judicial concordat, bankruptcy or demand for a stay of payment" are replaced by the words "In respect of judicial concordat and bankruptcy".
Art. 136. In article 13 of Royal Decree No. 72 of 30 November 1939 regulating the stock exchanges and futures markets on goods and commodities, the profession of brokers and intermediaries dealing with these markets and the regime of the gambling exception, in paragraph 2, the 1st is replaced by the following provision:
"1° the bankrupts and persons convicted of offences under articles 489, 489bis and 489ter of the Criminal Code, unless they have been rehabilitated; "
Art. 137. In section 25 of the Trade Register Act, coordinated on 20 July 1964, amended by the Acts of 10 October 1967, 14 July 1976, 12 July 1989 and 19 January 1990, the following amendments are made:
1° Division 8° is replaced by the following text:
"8° declaring or reporting bankruptcy, pronouncing the closure of bankruptcy operations, ruling on the excusability or inexcusability of the bankrupt, declaring the bankrupt rehabilitation";
2° Division 9° is replaced by the following text: "9° conviction of the head of articles 489, 489bis and 489ter of the Criminal Code";
3° Division 11° is repealed.
Art. 138. In section 310 of the General Customs and Excise Act, the words "or that it will have to suspend its payments" are deleted.
PART V. - Provisions whose scope exceeds bankruptcy rights
CHAPTER I. - Amendments to the Judicial Code
Art. 139. In section 1193 of the same Code, as amended by the Act of 18 February 1981, paragraph 3 is replaced by the following paragraph:
"In all cases the appellant may, because of special circumstances and with the agreement of the justice of the peace, either provide for in the terms and conditions of the sale or decide sitting that the formality of the overrun is not applicable. »
Art. 140. In section 1621 of the same Code, paragraph 1 is replaced by the following paragraph:
"If there is, prior to the transcript of the seizure, a judgment ordering the sale of the seized immovables, either pursuant to articles 1186 to 1191 or 1211, or in any other case o· the sale of the immovables at the auction, by virtue of judicial decisions, the seized person may, after this transcript, call the seizing person before the judge of the situation of the property, to override the proceedings of real estate execution, during a period of a court, This term cannot exceed two months. » .
CHAPTER II. - Amendments to criminal laws
Art. 141. Section 490bis of the same Code, inserted by the Act of 10 October 1967, is replaced by the following provision:
"Art. 490bis. - Is punishable by imprisonment from one month to two years and a fine of one hundred francs or one of those penalties only, the person who fraudulently organized his insolvency and failed to fulfil his obligations.
The organization of its insolvency by the debtor may be deducted from any circumstance that reveals its will to render insolvent.
In respect of a third-party co-author or accomplice of the offence, public action is extinguished if it returns the property that had been handed over to it. »
Art. 142. An article 492bis, as follows, is inserted in the same Code:
"Art. 492bis. - shall be punished by imprisonment from one month to five years and a fine of one hundred francs to five hundred thousand francs, the rulers of law or de facto of commercial and civil societies, as well as non-profit associations which, with fraudulent intention and for personal purposes, directly or indirectly, have made property or credit of the legal person a use that they had significantly prejudicial to the property interests of his or his or her creditors.
In addition, the perpetrators may be sentenced to the prohibition in accordance with section 33. »
CHAPTER III. - Amendments to the Commercial Corporations Acts
Art. 143. Article 12, § Ithe following amendments are made:
1° on 3°, c), is supplemented by the following sentence:
"In the case where the liquidator is a legal entity, the extract will contain the designation of the natural person who represents it for the exercise of the liquidation powers";
2° 5°, c), is supplemented by the following sentence:
"In the case where the liquidator is a legal entity, the extract shall contain the designation or modification to the designation of the natural person who represents it for the exercise of the winding-up powers";
3° 6°, paragraph 2, (c), is supplemented by the following sentence:
"In the case where the liquidator is a legal entity, the extract will contain the designation or modification to the designation of the natural person who represents it for the exercise of the liquidation powers".
Art. 144. In the same coordinated laws, an article 178ter is inserted, which reads as follows:
"Art. 178ter. - Any change in the name of a liquidation corporation is prohibited. "
Art. 145. In the same coordinated laws, an article 178quater is inserted, which reads as follows:
"Art. 178quater. - A procedure for the transfer of the seat of a winding-up company may be implemented only after approval by the trade tribunal in the jurisdiction of which the seat of the company is located.
The registration is requested by request for the diligence of the liquidator.
The court rules all cases. The Public Prosecutor's Office is heard. The court shall grant the approval if it considers that the transfer of the seat is useful for the liquidation.
An act transferring a winding-up corporation may only be validly filed in accordance with section 12 if the Commercial Court encloses a copy of the registration decision. » .
Art. 146. In the same co-ordinated laws, section 179, as amended by the Act of 6 March 1973, is supplemented by paragraph 3, which reads as follows:
"In the case where the liquidator is a legal entity, the natural person who represents the liquidator must be designated in the act of appointment. Any modification to the designation of this natural person must be decided in accordance with Article 1 and filed and published in accordance with Article 12. »
Art. 147. In the same coordinated laws, an article 185bis is inserted, which reads as follows:
"Art. 185bis. - In anonymous society and limited liability private corporations, a member of the liquidator college who has, directly or indirectly, an opposite interest in a heritage nature to a decision or operation submitted to the college is required to comply with section 60, applicable by analogy.
If a single liquidator is appointed and is in this opposition of interest, it refers to the partners and the decision cannot be taken or the operation can only be carried out on behalf of the company by an ad hoc agent.
If the liquidator is the sole partner of a limited liability private corporation, section 133, § 3, is applicable by analogy. »
Art. 148. Article 201, 3°bis, of the same coordinated laws, inserted by the law of 30 June 1961 and amended by the laws of 23 February 1967, 5 December 1984, 22 December 1989, 29 June 1993 and 13 April 1995, is supplemented by the words " and 178 bis".
CHAPTER IV. -Abrogatory provision and entry into force
Art. 149. The Act of 18 April 1851 on bankruptcy, bankruptcy and suspended, as amended by the Acts of 31 May 1890 of 27 July 1934, by Royal Decree No. 150 of 18 March 1935, by the Acts of 10 August 1946, of 18 May 1956, of 29 July 1957, of 24 July 1962, of 12 April 1965, of 10 October 1967, of 2 July 1969, of 27 May 1974, of 17 July 1975, of 14 July 1978, of
Art. 150. The provisions of this Act come into force on the date fixed by the King, and no later than six months after their publication to the Belgian Monitor.
Article 3 comes into force on the day the Insolvency Proceedings Convention comes into force in Brussels on 23 November 1995.
Section 13 applies only to declaratory bankruptcy judgments that will be pronounced after the coming into force of this Act.
The obligation prescribed by section 76 to convene a meeting of creditors three years after the declarative judgment of bankruptcy applies only to bankruptcies declared after the entry into force of this section.
Section 101 applies only to clauses suspending the transfer of ownership until the full payment of the price, established in writing after the entry into force of that provision.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, August 8, 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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