Posted the: 1997-10-28 Numac: 1997009766 Department of JUSTICE 8 August 1997. Bankruptcy (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: title I:. -Provisions General Article 1. This Act, in its articles 6 and 115 rule a matter referred to in article 77 of the Constitution; other articles regulate materials referred to article 78 of the Constitution.
S. 2. any trader who has stopped its payments of persistently and whose credit is shaken is bankrupt.
One who carries more trade may be declared bankrupt if the cessation of payments dates back to a time when he was still shopping.
The bankruptcy of a natural person may be declared until six months after his death, when she died after he stopped payments of persistently and that his credit has been shaken.
The bankruptcy of a dissolved Corporation may be declared until six months after the completion of the liquidation.
S. 3 § 1.
If the centre of the main interests of the trader is located in another | $$ | AAEtat member of the European Union, it can, if it has an establishment, being declared bankrupt in Belgium. Are however excluded, insurance companies and credit institutions, investment firms that provide services involving the holding of funds or securities for third parties, as well as the undertakings for collective investment, if the centre of main interests is located in another State member of the European Union.
This bankruptcy is a procedure of territorial insolvency within the meaning of the Convention on insolvency done at Brussels on 23 November 1995.
The rules prescribed by this convention shall apply. Its effects are limited to the merchant property located in Belgium.
§ 2. If the centre of the main interests of the debtor is located in another | $$ | AAEtat member of the European Union and if insolvency proceedings opened against him in this | $$ | AAEtat, it may, if it has an establishment, being declared bankrupt in Belgium. However are excluded, insurance companies and credit institutions, investment firms that provide services involving the holding of funds or securities for third parties, as well as the undertakings for collective investment, if the centre of main interests is located in another | $$ | AAEtat member of the European Union.
This bankruptcy is a secondary insolvency proceedings within the meaning of the convention referred to in the preceding paragraph.
The rules prescribed by this convention shall apply. Its effects are limited to the assets of the debtor located in Belgium.
S. 4. articles 50, paragraph (2), 55 and 56 of the Judicial Code shall not apply to applications and meanings referred to in this Act.
S. 5. notifications to which proceeds the Registrar under this Act, be held by judicial fold.
TITLE II. -Of the bankruptcy chapter I. - Admittedly, the declaration of bankruptcy and the cessation of payments art. 6. without prejudice to the provisions of the law on judicial administration, bankruptcy is declared by judgment of the tribunal of commerce before it or on the admission of the merchant, on citation of one or several creditors, of the public Ministry, the provisional Administrator referred to in section 8 or the liquidator in the main proceedings in the case referred to in article 3, § 2.
7. as in the case of admission in the case of bankruptcy, the tribunal de commerce application may suspend its decision for a period of fifteen days during which the trader or the public prosecutor may submit a request in composition.
S. 8 in case of absolute necessity, and where there are indices specific, serious and consistent evidence that bankruptcy conditions are met, the president of the tribunal de commerce, can divest all or part the trader of the management of all or part of its assets.
President statue, either unilateral application of any interested person or office.
The president designates one or more provisional directors with experience in management of business and accounting and specifies their powers. They do not understand that to make the admission of bankruptcy or that represent the merchant in a bankruptcy proceeding.
The designated interim administrator must offer guarantees of independence and impartiality. The person concerned shall be bound by a code of ethics and professional responsibility will have to be covered by insurance.
Divestiture order keeps effect only to the extent that, within eight days of its pronouncement, an application for bankruptcy is introduced either by the plaintiff or by provisional administrators in the case where the President has held office.
The decision stops right to produce effects if a judgment of bankruptcy is not delivered within four months of submission of the application. This period is suspended during the time of the remission granted to the debtor, or for the time necessary as a result of reopening debates. The decision is the subject of any publication, except for that laid down in article 25 of the trade register laws coordinated on July 20, 1964.
The president may at any time, at the request of the provisional directors, modify their powers. Decisions under this section shall be enforceable by provision. They may be subject to the remedies provided in articles 1031 to 1034 of the Judicial Code.
Actions by the debtor, in violation of the divestiture, shall not be demurrable to the mass if, on the part of those who have dealt with him, they were place with knowledge of the divestiture or if they fall within one of the three categories of acts covered by article 17. However, the curators are not required to invoke non-enforceability of acts committed by the bankrupt insofar as mass has been enriched.
If the debtor has disposed of its property the day of the filing of the decision ordering divestment, it is assumed that the debtor has disposed of property subsequent to this decision.
If a payment was made to the debtor after the decision ordering his divestiture and that this provision was not made to the provisional administrator to accept payments, one who has paid is supposed to released if he was unaware of the decision.
In case of dispute, the president of the Court considers the cost of provisional administrator as the legal expert. Costs are provisioned by the plaintiff or, in the case of designated office, by the debtor. In the event of bankruptcy of the debtor, the costs are debts of the mass. Otherwise, they are set permanently, in the manner provided in this paragraph for provisions.
S. 9. any trader shall, within one month of cessation of payments, to admission to the registry of the competent court. This provision is not applicable to the debtor referred to in article 3, §§ 1 and 2.
This admission is recorded by the Registrar. At this time at the latest, the confession and the data supporting the State of bankruptcy must be communicated to the Works Council or, failing that, to the Committee for prevention and protection at work, unless, the Trade Union delegation if it was incorporated or, failing, a delegation of the staff. This confession and these data will be discussed.
Bankruptcy of a partnership, the confession contains name and an indication of the domicile or seat of each of the supportive partners. It should also mention the residences or seats where they were established during the last twelve months and a day, as well as the dates of registration in the civil register or commercial register; It is made in the registry of the Court within the jurisdiction of which the headquarters of the principal place of business of the company.
S. 10. the joint trader has his admission: 1 ° the balance sheet of its affairs or a note indicating the reasons that prevent it from file.
2 ° the books required by section 1 of Act of 17 July 1975 on accounting and the annual accounts of companies; These registers are stopped by the clerk, who finds the State where they are located or a note indicating the reasons that prevent the filing of these pleadings.
The balance sheet contains the statement of assets and liabilities under the law of 17 July 1975 on accounting and the annual accounts of companies as well as the enumeration and the valuation of all movable and immovable property of the debtor, the status of claims and debts, the table of profits and losses, the last account duly fenced results and table expenses; It must be certified true, dated and signed by the debtor.
The clerk certifies at the bottom of the admission of the merchant and parts attached thereto the date of their delivery in the registry, and issued receipt, if it is required.
Delivery to the registry of all other documents concerning the bankruptcy is found in the same way, without any need to make any other certificate of filing.
S. 11. by the judgment that declares bankruptcy, the commercial court appoints, among its members, the president except, a judge-Commissioner.
The commercial court designates one or more curators, depending on the size of the bankruptcy. He ordered where appropriate a descent on the premises, the juge-commissaire, curators and the clerk. He ordered to creditors of the bankrupt to file the statement of their claims within a period which may not exceed 30 days from the judgement declaring the bankruptcy, and directs the publication referred to in article 38.
The same judgment refers to the place, day and time which will be conducted at the end of the minutes of the verification of claims. This time is priced so that it runs five days at least and thirty days at the most between the expiry of the deadline for the declaration of claims and the closing of the minutes of audit.
S. 12. the termination shall be deemed to take place from the Declaration of bankruptcy, or from the death, when bankruptcy is declared after the death of the bankrupt.
The Court may fix at an earlier date the cessation of payment, unless serious and objective elements indicate clearly that the termination occurred before judgment; These items should be mentioned in the judgment.
The Court may, quote from curators directed against the bankrupt or citation of any person against the bankrupt and curators, change later the date of cessation of payments.
The judgment said the data on which the tribunal relied to determine the date of the termination.
Any request to secure the cessation of payment at a time, other than that resulting from the declaratory judgement or of a subsequent judgment is receivable more than six months after the Declaration of bankruptcy, without prejudice of the exercise of remedies against the judgement declaring the bankruptcy.
The judgment may set a date for the cessation of payment to a date more than six months preceding the judgement declaring bankruptcy, unless that judgment relates to a bankruptcy of a corporation dissolved more than six months before the Declaration of bankruptcy, whose liquidation is closed or not, and if there are clues that it was or is carried out with the intention of harming creditors. In this case, the date of cessation of payment can be fixed on the day of the decision to disband.
S. 13. the judgement declaring the bankruptcy shall be served on the bankrupt to the diligence of the curators.
The feat of meaning contains, on pain of nullity, also the texts of articles 14 and 15, summons to appear at the end of the minutes of verification of claims and learn, where appropriate, on what date or dates the juge-commissaire fixed debates concerning disputed debts.
S. 14. any judgement declaring the bankruptcy or fixing the date of cessation of payments is enforceable provision and minute from the pronunciation.
The judgments referred to in the first subparagraph are likely opposition by the defaulting parties and third-party opposition on the part of the individuals who have not been party.
The opposition to these decisions is admissible only if it is formed within fifteen days of the service of the judgment.
The third opposition is admissible only if it is formed within fifteen days of the insertion of extracts of the judgment in the Moniteur belge.
The time limit for appeal against the judgments referred to in the first subparagraph is 15 days from the publication in the Belgian Official Gazette referred to in article 38, or if the call is bankrupt of fifteen days from the service of the judgment.
15. the call, the opposition or the third party proceedings against the judgment declaring the bankruptcy or refusing to declare, are educated quickly. At the request of the most diligent party, the case is set to be argued in the month of the application.
CHAPTER II. -S. bankruptcy effects 16. the bankrupt as of the day of judgment declarative bankruptcy, is functus officio of right of administration of all its assets, even those who can to accrue as long as it is in a State of bankruptcy. All payments, operations and actions made by the bankrupt, and all payments made to the bankrupt since that day shall not be demurrable to the mass.
The property referred to in article 1408, of the Judicial Code, with the exception of objects indispensable to the profession of the distrainee, referred to 3 ° of this article, are excluded from the assets of the bankruptcy the bankrupt administration and available canned.
Amounts, are also excluded from the estate of the bankrupt are and payments that the bankrupt collects from the declaration of bankruptcy, as long as they are exempt under sections 1409 to 1412 of the Judicial Code or under specific statutes.
Are also excluded from the assets of the bankruptcy, the compensation awarded to the bankrupt for the reparation of the prejudice to the person-related and caused by an unlawful act.
S. 17 shall not be demurrable to the mass, when they have been made by the debtor since the time determined by the tribunal as being that of the cessation of payments: 1 ° acts of gratuitous provision bearing on furniture or buildings, as well as any acts, transactions or commutative contracts or for consideration, if the value of what has been given by the bankrupt exceeds substantially what he received in return.
2 ° all payments, either in cash, either by transport, sale, compensation or otherwise, unmatured debt and debt expired, all payments made otherwise than in cash or negotiable instruments;
3 ° all conventional mortgages and all rights of antichresis or gage made on the assets of the debtor for debts previously incurred.
S. 18. all other payments made by the debtor for matured debt, and all other acts for consideration by him passed after the cessation of payments and before the declaratory judgement, may be declared non-enforceable at the mass, if on the part of those who have received from the debtor or who have dealt with him, they took place with knowledge of cessation of payment.
S. 19. the mortgage and Lien validly acquired rights can be registered until the day of the judgement declaring the bankruptcy.
Nevertheless, registrations taken subsequent to the time of cessation of payment, can be declared unenforceable if it has been more than fifteen days from the date of the Constitution of the privilege or mortgage and registration.
S. 20. all acts or payments made in fraud of creditors are unenforceable, regardless of the date on which they took place.
S. 21. in cases where bills of Exchange would have been paid after the fixed time as being the cessation of payment and before the judgement declaring the bankruptcy, report action may not be brought against a person for whom the letfre of Exchange has been provided; If it is a promissory note, the action cannot be exerted against the first endorser.
In either case, the evidence that those who are called the report had knowledge of cessation of payment at the time of the issuance of the title, must be provided.
S. 22. the judgement declaring the bankruptcy makes payable with respect to the bankrupt, unmatured debt. If the bankrupt is the underwriter of a promissory note, I' acceptor of a bill of Exchange, or the shooter in the absence of acceptance, other obligors are required to give surety for the payment at maturity, if they do not choose to pay immediately.
However, unmatured debt and no interest, which would be far more a year from the date of the Declaration, are accepted for liabilities under deduction of legal interest calculated since the declaratory judgement to maturity.
In the case of immediate payment by one of the co-obligants a promissory note or a bill of Exchange unmatured and non-interest bearing, is made subject to deduction of the legal interest for the time remaining until the expiration of the term.
S. 23. as declarative of the bankruptcy, the course of the interests of any debt not guaranteed by a special privilege, a pledge or a mortgage, judgment is stopped against the mass only.
The interests of secured claims cannot be claimed only on the amounts derived from the assets allocated to the lien, pledge or I' mortgage.
S. 24 from the same judgment, any movable or immovable, any way on furniture or buildings, cannot be commenced or exercised only against curators followed. The Court may nevertheless receive the bankrupt party.
Decisions made or brought against the bankrupt personally followed by equity shall not apply to the mass.
S. 25. the judgement declaring the bankruptcy stops any seizure made at the request of unsecured creditors and general privileged creditors.
If earlier in this judgment, the day of the forced sale of furniture or seized buildings has already been set and published by the posters, this sale is made on behalf of the mass.
However, if required by the interests of the mass, the juge-commissaire may, on the request of the Trustees, authorize surrender or abandonment of the sale.
S. 26. all judicial execution, towards the payment of the receivables preferred on furniture depending on the bankruptcy, will be suspended until the close of the record of verification of claims, without prejudice of any interim measure and the law which would be acquired to the owner of the premises leased to regain possession.
In the latter case, the suspension of the established enforcement in this article stops right in favour of the owner.
However, if required by the interests of the mass and provided that a realization of furniture can be expected that does not disadvantage the preferential creditors, the Court may, on the request of the Trustees and after having summoned by judicial fold the creditor concerned enjoys a special privilege, order a stay of execution for a period
maximum of one year as from the declaration of bankruptcy.
CHAPTER III. -Administration and liquidation of bankruptcy Section 1st - provisions general article
27. the curators are chosen from persons on a list drawn up by the General Assembly of the Court of commerce.
May only be allowed on the list referred to in the first paragraph, lawyers registered in the roll of the order of a Belgian bar, justifying specific training and providing guarantees of competence in winding-up proceedings.
The list also specifies for each registrant, for what bankruptcies he has already been appointed as the trustee.
In any case, she mentions the name of the bankrupt, the date of the appointment of the trustee and, where applicable, the date on which its mission has ended. The list can be accessed free of charge.
When the nature and importance of a bankruptcy order it, any person fulfilling the requirements of training and with the guarantees laid down in paragraph 2 may be Assistant as a curator, due to specific skills.
The King lays down the procedure for the submission of candidates for the Court and the time limits for the review of applications. The King may also attach conditions to be met in relation to training and the competence for winding-up proceedings.
S. 28. any decision of refusal of registration on the list of curators or omission of registration can be appealed to the Court of appeal. The debates are taking place behind closed doors if the person concerned so requests. The deadline for the appeal is one month from the date of notification of the decision. The court orders, if any, I' listing.
29. a person on the list may in be omitted at his own request by the General Assembly of the Court of commerce. The General Assembly also fails the list people being more lawyers registered at the order of a bar chart. A person may also be omitted from the list in execution of a judgment on citation of the Crown. The debates are taking place behind closed doors if the person concerned so requests.
S. 30. at the time of their entry into service, the designated liquidators shall take oath before the juge-commissaire in the following terms: "Ik zweer getrouwheid aan de Koning, gehoorzaamheid aan de Grondwet in aan de wetten van het Belgische volk. '' IK mijn opdrachten zweer in era in geweten, nauwgezet in eerlijk te zullen vervullen., "I swear loyalty to the King, obedience to the Constitution and the laws of the Belgian people. '' I swear to perform my mission in honour and conscience, with accuracy and probity. ""Ich schwore Treue dem König, der Verfassung und den belgischen laws Gehorsam Volkes. ICH schwore den mir erteilten Auftrag auf Ehre und Gewissen, genau und ehrlich zu erfüllen. » Art. 31. the tribunal de commerce may, at any time, replace the receiver by another of its members as well as replace the curators or one of them, increase or decrease the number.
The curators whose replacement is planned, are previously called and after report of the judge-Commissioner, heard in the Council Chambers. The judgment is pronounced in public hearing.
Judgment ordering the replacement of a trustee is notified to him to the diligence of the clerk. It is to the diligence of the clerk of the Court within five days of its date, and trade published by extract in the Moniteur belge. A copy of the judgment is also transmitted for information to the public prosecutor.
S. 32. where a trustee is prevented due to a conflict of interest, to intervene, he asks, by way of petition to the tribunal de commerce, the designation of an ad hoc Committee. The Court decides on the report of the judge-Commissioner.
An ad hoc Committee is appointed in replacement of the owner trustee, shall confirm in writing the acceptance of its mission. At the end of its mission, the ad hoc trustee prepares a report of its activities and made encrypt its statement of expenses and honoraria by the commercial court, which shall rule after having heard the juge-commissaire and the owner trustee.
Incumbent trustee shall include state charges and fees of the ad hoc Committee in its final count in respect of expenses of the bankruptcy.
33. the fees of the curators are fixed according to the importance and complexity of their mission. They can be set only in the form of compensation proportional to the realized assets. Schedules relating to the fixing of fees and rules are established by the King. The King determines the benefits and expenses covered by fees. The King may also determine the cost that may be the subject of separate compensation and the modalities of their arbitration.
A detailed benefits to pay record is attached to any application fee.
The judge may fix charges and instalment fee at the request of the curators and the assent of the juge-commissaire. Except under specific circumstances, the total charges and instalment fees may not exceed three quarters of the amount fixed in accordance with the rules of compensation established by the King. Instalment fee can not be refereed when curators do not challenge the States provided for in article 34.
S. 34. the curators challenge the judge-Commissioner, in the sixth and twelfth months of the first year of the bankruptcy liquidation, a detailed statement of the situation of bankruptcy.
This State, which includes a statement of revenues, expenses, distributions, as well as what remains outstanding, is filed on the record of the bankruptcy.
The status of disputes of claims is also specified.
From the second year of the liquidation, the detailed status should no longer be given to the official receiver and filed in the bankruptcy case that every year.
S. 35. the juge-commissaire is charged specifically to accelerate and monitor operations, management and liquidation of bankruptcy; It shall report to the hearing of all disputes arising from the bankruptcy, except as provided in paragraph 6; He ordered the urgent measures which are necessary for the safety and the preservation of the property of mass, and chairing meetings of the creditors of the bankrupt.
If prevented from the juge-commissaire, the president of the Court ordered its replacement.
When the judge-Commissioner report on disputes arising from the bankruptcy, it may be part of the seat.
The juge-commissaire may proceed out of his district with all acts falling within its responsibilities, if he considers that serious or urgent circumstances so require.
The juge-commissaire orders are motivated and enforceable by provision. Appeals against these orders are brought before the Court.
The juge-commissaire does not report on the disputes of receivables to admit liability.
36. the Prosecutor can attend all operations of the bankruptcy, consult at any time the bankruptcy file, take knowledge of books and documents of the bankrupt, check its location and give by curators all the information he considers relevant.
S. 37. the judgments pronounced in bankruptcy, other than the judgement declaring the bankruptcy and the judgement establishing the date of cessation of payment are subject to appeal in accordance with the Judicial Code.
These judgments are enforceable provisionally.
Are susceptible of opposition or appeal: 1. Ies judgments relating to the appointment or replacement of Justice-Commissioners or trustees;
2. the judgments which rule on disputes regarding the issue to the bankrupt, physical person, and his family's furniture and effects for their own use, as well as 1' granting of relief food to the bankrupt, person physical, and his family;
3. judgments that allow the sale of the effects or goods belonging to bankruptcy, or permit in accordance with article 25, surrender or discontinuation of the sale of goods seized;
4 Ies judgments ruling on appeals against the judge-Commissioner orders within its powers.
Section 2. -Formalities and s. bankruptcy management 38. the judgement declaring the bankruptcy and which subsequently set the cessation of payment, are, by the curators and care within five days of their date, published by the Belgian Moniteter and extracts in at least two newspapers or periodicals having regional circulation.
These extracts contain: 1. name, surname, place and date of birth, the nature of the main commercial activity and the name under which this activity is carried out, I' address and the place of the main establishment and registration number of the bankrupt to the trade register and the registration number allocated to it for the purposes of value added tax; If it is a legal person, the name, the form, the nature of trade engaged and the name under which this activity is carried out, the seat and the place of the main establishment and the registration number of the person incorporated in the trade register and the registration number allocated to it for the purposes of the tax on the value added;
2. the date of the declaratory judgment and the Court which pronounced it;
3. where appropriate, the date of the judgment fixing the date of cessation of payment and the name of the latter;
4. the name, forenames and address of the curators;
5 Ie period within which claims must be declared;
6 the date
and instead of the closing session of the minutes of verification of claims.
It is justified to this insertion by the Moniteur belge containing excerpts said.
If they find that it is possible that the bankruptcy should be terminated for insufficiency of assets, the curators asked Commissioner judge to be exempt from the obligation to publish in newspapers or periodicals having regional circulation. Publication costs which are not covered by the assets will remain dependant of the curators.
S. 39. it is held in the registry for each bankruptcy a folder containing: 1 ° a copy of the judgement declaring the bankruptcy, judgement establishing the date of cessation of payment and decisions made on appeal against these judgments;
2 ° extracts of publications provided in article 38;
3 ° if applicable a copy of orders made under sections 41, § 2, and 43, paragraph 3;
4 ° the minutes of descent on the premises and the inventory provided for in article 43;
5 ° the minutes of verification of claims;
6 ° the table provided for in article 71;
7 ° the reports and statements of distribution established by the curators, under sections 34 and 52;
8 ° the written orders issued by the judge-Commissioner;
9 ° the list of transactions and approvals y relative referred to in article 58.
Any person may inspect free file and obtain copies on payment of the registry fee.
S. 40. the curators come into office immediately after the declaratory judgement and after having lent before the juge-commissaire the oath provided for in article 30.
They manage the bankruptcy as a good father, under the supervision of the judge-Commissioner.
S. 41 § 1. If applicable, curators require the affixing of seals in the manner provided in § 2 on the field.
Seals may be affixed on stores, racks, crates, portfolios, books, magnetic media, including computer media, furniture and effects of the bankrupt.
Bankruptcy of a company of which any part partners are jointly and severally liable for the debts, the seals are, where applicable, applied not only to the Head Office of the company, but still at the home of each of the supportive partners.
2. Curators can ask the judge-Commissioner to order the affixing of seals, either by request or a verbal statement recorded by the Registrar.
S. 42. the inspection is carried out by analogy according to the rules laid down in articles 1010, first paragraph, 1011, 1013 and 1015, first sentence of the Judicial Code.
S. 43. upon entering into office, the Trustees shall, relentlessly and under the supervision of the official receiver, in the inventory of the property of the bankrupt which is present or duly called. The juge-commissaire sign inventory. Signed inventory is lodged at the registry of the tribunal to be attached to the record of the bankruptcy.
Inventory described separately each of the goods referred to in article 16, paragraph 2.
Curators may, with the permission of the juge-commissaire, help, under their responsibility, for the drafting of inventory as for the estimation of objects, for the custody of the assets and their realization, by whom they deem suitable.
S. 44. in the case of a declaration of bankruptcy after death, when he was point made inventory earlier in this statement, or in the event of death of the bankrupt prior to the opening of the inventory, is carried out there immediately in the forms of article 43, in the presence of the heirs or those duly called.
S. 45. the finished inventory, goods, money, paper, active titles, the furniture and effects of the debtor, are delivered to the curators who, at the foot of the said inventory, say do.
The Trustees may entrust the archives to the bankrupt or to one of the leaders of the bankrupt company. If there is place their rendered at their request and on their receipt.
If the curators are not able to return the archives, they are required to retain them for a period of ten years following the opening of the bankruptcy, except if it is not ended at that time, in which case they shall retain them until the expiry of a period of six months following the closing of the bankruptcy.
Curators must keep records that they have formed after the bankruptcy in accordance with the provisions to the bar.
S. 46. upon entering into office, the curators decide without delay if they continue the execution of the contracts concluded before the date of the judgement declaring the bankruptcy and to which this judgment does not end.
The party who has contracted with the bankrupt may develop curators notice of the decision within 15 days.
If no extension of time agreed or if the curators take no decision, the contract is deemed to be terminated by curators from the expiry of that period; the claim for damages eventu-really due to the counterpart of the fact of the breach between in the mass.
When curators decide to perform the contract, the counterpart is entitled, in charge of the mass, to the fulfilment of this commitment insofar as it relates to services provided after the bankruptcy.
47 permitting the interests of creditors, the Court, acting at the request of curators or of any interested party, on the report of the judge-Commissioner, and after heard Trustees and representatives of staff within the Works Council or, failing that, of the Committee for prevention and protection at work or, failing that, the Trade Union delegation if it was incorporated or failing that, a delegation of staff, may authorize that commercial operations of the bankrupt be temporarily, in whole or in part, continued by curators or under the supervision of the trustees by the bankrupt or by a third party. At the request of the trustees or any interested person and the report of the judge-Commissioner, the Court may at any time amend or revoke this measure.
Curators can immediately after the judgment of bankruptcy and after consultation with the representative trade unions or, failing that, with this staff, in the interest of the mass and pending the tribunal's decision taken in application of paragraph 1, authorize the continuation of business operations.
S. 48. the curators may, with the permission of the juge-commissaire, issue to the bankrupt person physical, and his family of furniture and effects needed for their own use. Curators prepare an inventory of these objects.
They can also, with the permission of the juge-commissaire, allocate food relief to the bankrupt, person physical, and his family.
Any dispute relating to the application of this article is addressed by application to the Court.
S. 49. the curators may, notwithstanding any appeal against the judgement declaring the bankruptcy and with the authorization of the juge-commissaire, immediately sell the subject assets next dieback or imminent depreciation.
S. 50. the letters and messages to the bankrupt are delivered to the curators who open; If the bankrupt is present, he attended their opening. Letters and messages that do not exclusively concern the business of the bankrupt are transmitted or communicated by the trustee at the address indicated by the bankrupt.
After the close of minutes of verification of claims, the bankrupt individual, may request the juge-commissaire permission personally to the opening of letters and messages that are addressed to him.
In case of refusal, the juge-commissaire is obliged to justify its decision, in accordance with article 35.
S. 51. the curators are looking for and cover on their receipts, debts or amounts owed or faili.
Money from the sales and recoveries made by the curators are paid to the Caisse des Dépôts et consignations in eights days of the recipe. The juge-commissaire may, however, on request allow the trustee to keep on a bank account a limited amount intended to finance current operations. In its order, the juge-commissaire fixed the maximum amount that the trustee is authorized to retain the account.
In case of delay, the curators are the commercial interests of the sums that they have not paid, without prejudice to the application of article 31.
S. 52. the payment of the amounts allocated to creditors is carried out by curators in the light of a State of distribution covered by the juge-commissaire and filed in the bankruptcy case.
Owed to the curators as fees or instalment fee provided for in article 33, as well as their costs and disbursements are paid to them on the basis of a State covered by the juge-commissaire.
The who at the end of the bankruptcy could not be distributed, are paid to the Caisse des Dépôts et consignations for the benefit of creditors.
53. the bankrupt or the managers and directors of the bankrupt company, attend all notices that their are made, either by the juge-commissaire, curators and provide the juge-commissaire and curators all the required information.
The bankrupt or the managers and directors of the bankrupt company are required to notify the curators of any change of address. Otherwise, notices are supposed to validly made at the last address that the applicant has communicated to the curators.
54. the curators call the bankrupt with them to close and stop the books and Scriptures in his presence.
S. 55. the juge-commissaire is authorized to hear the bankrupt, workers
he occupies and another person both on regard to the audit of the books and records, on the causes and circumstances of the bankruptcy.
S. 56. where a trader has been declared bankrupt after his death or when the bankrupt dies after the declaration of bankruptcy, his heirs may attend or be represented in all operations in bankruptcy.
57. as of their duties, curators are required, under their personal responsibility, made all acts for the preservation of the rights of the bankrupt against its debtors. .
They are also required to require registration of the mortgages on the buildings of the debtors of the bankrupt, if it has not been requested by him.
They are required, in addition to listing on the property of the bankrupt which they are aware.
The entries in question are taken on behalf of the mass by curators, who join their slip a copy of the judgement of bankruptcy finding their appointment.
S. 58. the curators may, with the authorization of the official receiver, the bankrupt duly called and compromise on all challenges that interested the mass, even on those relating to shares and rights in immovable property.
When the transaction involves real property rights, or when its object is of an indeterminate value or which exceeds 500,000 francs, the transaction is mandatory only after having been approved by the Court, on the report of the judge-Commissioner.
The bankrupt is called the approval.
Curators may also, with the permission of the tribunal de commerce, the bankrupt duly called, refer the litisdecisoire oath to the opposing party, in disputes in which the bankruptcy will be committed.
S. 59. the curators can use the bankrupt to facilitate and inform their management. The official receiver will set its working conditions.
S. 60. in any bankruptcy, the curators, within two months of their duties, are required to submit to the juge-commissaire a memory or summary account of the apparent State of bankruptcy, its main causes and circumstances, and the characters that it seems to have.
The juge-commissaire shall immediately transmit the memory with its comments to the Attorney of the King. If it has not been delivered within the prescribed period, he prevents the Attorney of the King, and informed of the causes of the delay indicated by the trustee.
S. 61 If the bankrupt or the managers and directors of the bankrupt company continued the head of an offence provided for in articles 489, 489bis or 489ter of the penal Code or if a warrant of arrest or stop was awarded against them, the Prosecutor gives knowledge without delay to the receiver and the guardians.
CHAPTER IV. -The declaration and the verification of claims art. 62. to participate in a distribution or to personally exercise a preferential right, the creditors are required to file at the registry of the commercial court the statement of their claims with their titles, no later than the date indicated by the judgement declaring the bankruptcy. On request, the Registrar shall issue a receipt.
To this end, creditors are notified by publication in the Moniteur belge and a circular that curators address them as soon as these creditors are known.
This circular indicates the place, day and hour fixed for the closing of the minutes of verification of claims.
63. the declaration of each creditor States his identity, his profession and domicile, or, if he is a legal person, its main business, its identity and its headquarters, the amount and the causes of its debt, privileges, mortgages or pledges that are affected and the title of o·
It is the result.
This declaration is terminated by a statement framed in the following terms: "I say honour and conscience that my debt is sincere and true"; or "Ik verklaar in era in geweten dat deze schuldvordering waar in oprecht is." or 'Ich erklare auf Ehre und Gewissen dass meine Förderung aufrichtig und wahrheitsgetreu ist hiermit'.
It is signed by the creditor, or on its behalf by an Attorney; in this case, the proxy is attached to the statement, and it must state the amount of the debt and contain the statement required by this section. .
S. 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, election of domicile within the jurisdiction o· seat the Court which pronounced the bankruptcy.
In the absence of elected domicile, all meanings and all information may be made or given at the registry of the Court.
S. 65. the verification of claims is operated by the curators in the presence of the bankrupt or the duly called. The debt securities are approached from the books and Scriptures of the bankrupt.
The bankrupt is also heard on the liquidation of bankruptcy.
S. 66. after the declaration of each claim and until the fixed day for deliberations on the challenges that it raises, the juge-commissaire can, even ex officio, order the personal appearance of the creditor or his attorney or persons who can provide information. It draws up minutes of their words. It may also order the books of creditor representation or request under a mandatory that it be reported an extract made by the judge of the place.
S. Minutes, which is signed by themselves, the official receiver and the clerk stand 67 curators at the end of the verification of claims.
S. 68 at the meeting fixed for the closing of the minutes of audit, the curators give, at the request of any interested person, knowledge of any declared receivable and its possible challenge.
The juge-commissaire returns to court disputes over claims not authorised and fixed the date and the hour of the debate.
If the curators challenge the amount of a declared receivable or preferably invoked cause, they inform immediately the creditors concerned by registered letter to the post; It contains summons to appear in court to hear the ruling on the debate on the date and time, or where applicable, the dates and hours fixed by the juge-commissaire.
S. 69. the bankrupt and creditors can provide uncontradicted to make verificatons and to made, either during the closing session of the minutes of verification of claims, or later.
The uncontradicted must be, in the latter case, trained by feat of bailiff curators and the creditor whose claim is contradicted, within a period of one month after the closing date of the minutes of audit of claims, or within a period of one month after the admission of a claim if it is admitted only after the closing of the minutes of audit.
Said feat will contain quote of the curators and the creditor, as well as bankrupt before the Court for the purpose of deciding on the liquidation of the debt covered by the question.
S. 70. at the day set for the debate on the challenges, the tribunal statue, without prior quotation, if it is possible within the same ruling as to all challenges. The judgment after hearing, if they arise, the curators, the bankrupt, creditors opponents and reporting. His judgment is not likely opposition.
Disputes that are not immediately taken under advisement are disjoint and then processed according to the ordinary procedure, all cases postpone.
S. 71. it was held in the registry, under the responsibility of the Registrar, for every bankruptcy, a table divided into columns, and containing, for each declared receivable, the following particulars: 1 ° order number;
2 ° the identity, profession and domicile, or, if he is a legal person, the main commercial activity, identity and the headquarters of the creditor who filed his claim and his titles;.
3 ° the amount of the claim declared;
4 ° the liens and mortgages in which the creditor claims;
5 ° the admission or the dispute;
6 ° the Executive summary and the date of the decision on a dispute;
7 ° any other information that may be useful to bring to the attention of the persons concerned.
S. 72 the absence of declaration and statement of their claims within the time fixed by the judgement declaring the bankruptcy, the failing known or unknown are not included in the distributions.
Until the meeting referred to in article 79, the failing have the right to admission although their application may suspend ordered distributions. They are not entitled to a dividend on assets not yet distributed. Costs and expenses to which the verification and admission of claims give rise are their responsibility.
The right to admission is prescribed by three years from the date of the declaratory judgement, except for the claim recorded in an action for intervention or guarantee, prosecuted or brought under liquidation.
The right to admission of an established debt during the liquidation by another court of bankruptcy are prescribed by six months from the date of the final judgment passed in force of res judicata.
Chapter V. - of the summary proceedings of closing article 73. If has any time whatsoever, it is recognized that the asset is not sufficient to cover the 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, decide the closure of bankruptcy operations.
In this case, creditors fall within the exercise of their individual actions against the person and property of the bankrupt, unless the Court has declared bankrupt excusable.
The decision of closing operations in bankruptcy, when it is recognized that the asset is not enough to cover administration and liquidation of bankruptcy, puts an immediate end to the existence of the Corporation, except in the case of excusability.
Article 180 of the law on commercial companies, coordinated November 30, 1935, is applicable.
The closing of the bankruptcy for insufficiency of assets cannot be ordered only when it is recognized that the curators have done what was in their power to workers the social documents prescribed by law.
The judgment pronouncing the end of bankruptcy for insufficiency of assets is published by extracts in the Moniteur belge, the diligence of the curators.
The judgment orders, is it proclaims, the accountability by the curators. The trade tribunal hears disputes y related.
The King may determine the procedure for recording of assets that would appear later and the fate of these assets in the event of new liabilities.
S. 74. the execution of closing, pronounced judgment in accordance with article 73, was suspended for one month from the date of publication in the Moniteur belge.
CHAPTER VI. -From the liquidation of bankruptcy art. 75. § 1.
When debts are definitively accepted or rejected by an enforceable judgement, even hit an action curators shall carry out the liquidation of bankruptcy. The juge-commissaire shall convene the bankrupt for presence of curators, his comments on the best possible realisation of the assets. He is trained in minutes. Curators are selling the buildings, goods and household effects, all under the supervision of the judge-Commissioner in accordance with the provisions of articles 51 and 52, and without there being any need to call the bankrupt. .
They deal in the manner prescribed by article 58 on all species of right belonging to the bankrupt, notwithstanding any opposition to its § 2 part. Curators, the bankrupt duly called by judicial letter, containing the text of the present article, may apply for the commercial court permission to liquidate the bankruptcy according to the methods described above, upon the closing of the minutes of verification of claims or from any later date either. The Court decides on the report of the judge-Commissioner.
§ 3. When creditors or the bankrupt believe that a proposed realization risk of harm, they can ask for interim measures the designation of an ad hoc Committee. It may apply to the tribunal de commerce to prohibit the sale which could clearly injure the rights concerned.
§ 4. At the request of the Trustees, the Court may in the context of the liquidation of bankruptcy be approved the transfer of a business in a conventional manner whose implementation may be continued by the curators or after the closing of the bankruptcy, by any interested.
S. 76. the judge-Commissioner may in any circumstances to call a meeting of creditors or of some of them.
Moreover, three years after the judgement declaring the bankruptcy, no earlier than one month and no later than three months after the anniversary date of this judgment, a meeting of creditors held under the chairmanship of the juge-commissaire to hear the report of the curators on the evolution of the liquidation. This Assembly may subsequently at the request of a creditor be convened by the juge-commissaire.
The judge-Commissioner ordered the convening of the creditors listed in the bankruptcy and fixed the place, day and time of the Assembly. This Ordinance is published in the Moniteur belge, to the diligence of the clerk, one month prior to the date of the meeting. The juge-commissaire may however authorize the convening of creditors by circular letter.
The bankrupt is duly called to this House. It can be heard on the evolution of the liquidation.
Assembled creditors may, by simple majority, load the curators treat package all or part of the rights or actions whose execution would not have taken place, and to alienate.
S. 77. the official receiver directs, if applicable, a distribution among creditors and determines the proportion. Any payment made on order of the judge-Commissioner or with his permission causes discharge to the Trustees.
S. 78. if creditors whose claims declared and affirmed within the prescribed period resulted in not yet definitively judged disputes, shall be made to any distribution only after setting aside on the part corresponding to their claims as they were declared or affirmed.
S. 79. when the liquidation of the bankruptcy is complete, the bankrupt and the creditors are convened by the curators on the order of the juge-commissaire in the light of the accounts of the curators. The simplified account of the curators with the amount of the asset, the charges and fees of the curators, the debts of the mass and the distribution in the different categories of creditors, is attached to this notice.
In this House, the account is discussed and arrested. Creditors give their opinion on the guarantors of the bankrupt.
The balance of the account is the subject of last distribution. When the final account has a possitive balance, it is eligible to the bankrupt.
S. 80. on the report of the judge-Commissioner, the tribunal orders the closing of the bankruptcy, after sliced if necessary account disputes and rectified it if there is. .
The juge-commissaire presents to the Court, in the Council Chambers, the deliberation of creditors relative to the guarantors of the bankrupt, and a report on the circumstances of the bankruptcy. The tribunal decides whether or not the bankrupt is excusable. The decision on the guarantors is likely third-opposition on the part of creditors individually within the months of the publication, or on the part of the bankrupt within one month as from notification of the judgment of closing.
The Court may decide that the judgment ordering the closing of the bankruptcy will be published by extract in the Moniteur belge. This judgment must be published when the Court declares the bankrupt excusable.
Except for what concerns its execution, the closing of the bankruptcy puts an end to the functions of curators; She has taken general discharge.
S. 81. cannot be declared excusable bankrupts or the legal person bankrupt whose directors have been convicted for an offence under article 489ter of the penal Code for theft, forgery, bribery, scam or abuse of confidence, or custodians, guardians, administrators or other accountants, who have not made and resulted in their account in a timely manner.
S. 82. If the bankrupt is declared excusable, it can no longer be pursued by his creditors.
If the bankrupt is not declared excusable, creditors recover the right to individually exercise their action on its property.
S. 83. the decision of obligatoriness of a legal person bankrupt imposed in accordance with article 80 puts an immediate end to its existence. Article 180 of the law on commercial companies, coordinated November 30, 1935, is applicable.
The King may determine the procedure for recording of assets that would appear later and the fate of these assets in the event of new liabilities.
-The different species and creditor rights Section Ire. -Co-obligants and bonds art. 84. the carrier creditor of commitments subscribed, endorsed or guaranteed jointly and severally by the bankrupt and for other co-obligants which are bankrupt, participates in distributions in all bodies, and therein to the nominal value of its title until full payment.
85. no recourse for reason of dividends paid is open to the co-obligants bankruptcy against other, if when the meeting of dividends that would give these bankruptcies would exceed the amount of the debt in principal and accessories, in which case this surplus is vested, the order of commitments to those of employees who would have others for guarantors.
S. 86. If the carrier creditor of joint and several commitments between the bankrupt and for other co-obligants, guaranteed by a surety, or received before the bankruptcy, a down payment on his claim, it is included in the mass as the deduction of this deposit, and retains, for what is due, his rights against the co-obligants or guarantor.
87. the co-obligor or guarantor who has made partial payment is included in the weight for all that he has paid to the discharge of the bankrupt.
Section II. -Gage secured creditors and creditors on moveable arts. 88. the curators may, at any time, with the permission of the juge-commissaire, remove wages, for the benefit of the bankruptcy by paying back the debt.
89. If the pledge is not removed by the curators, and if it is sold by the creditor for a price that exceeds the debt, the surplus is recovered by such curators. If the price is less than the debt, the secured creditor comes to contribution to the surplus in mass as ordinary creditor.
90. for the workers referred to in article 1 of the Act of 12 April 1965 on the protection of workers, pay compensation, as defined in article 2, paragraph
First, of the Act and allowances included in remuneration and which are due to the same people because of their commitment, without regard to the fact that the rupture had occurred before or after the declaration of bankruptcy, are permitted number of claims preferred the same rank to a maximum same amounts that the privilege established in favour of the same persons by article 19 3 ° bis, of the mortgage law of December 16, 1851. .
Section III. -Rights of mortgage creditors on buildings article 91 when the distribution of the price of buildings is made prior to the price of the chattels, or simultaneously, the creditors or mortgage non filled on the price of buildings contribute in proportion to what is due them with unsecured creditors, the funds vested in the mass unsecured, provided however that their claims have been affirmed and wormhole according to above established forms.
92. If, before the distribution of the price of buildings shall be one or several distributions of money, creditors on buildings and mortgagees contribute to these distributions in the proportion of the total amount of their claim, the distraction as it says below.
93. after the sale of the buildings and the rules of the order between mortgage and privileged creditors, those who come in useful order on the price of buildings, for all of their debt, do affect the amount of their mortgage collocation as the deduction of the amounts they received in the unsecured mass.
The amounts thus deducted point remain in mortgage mass, but return to the unsecured mass for the benefit of which is he distraction.
94. in respect of the mortgagees who are collocated by partially in the distribution of the price of buildings, it is method as follows. Their rights on the unsecured mass are permanently set according to the amounts for which they remain creditors after this estate collocation, and funds that they have affected beyond this proportion in the previous distribution, they are retained on the amount of their mortgage, and reserved collocation in the unsecured mass.
95. the mortgagees who do not come in useful order are considered unsecured and subject as such to the effects of the operations of the unsecured mass.
Section IV. -Effects of the bankruptcy of one spouse against spouse s. 96. the consent of the spouse of a bankrupt husband or authorization of justice provided for by articles 215, § 1, 1418 and 1420 of the civil Code, should not be obtained by the curators for the sale of movable and immovable property depending on both the own assets of the bankrupt spouse of the common heritage.
S. 97 if, after declaration of bankruptcy and before closing it, involved the dissolution of the matrimonial regime of the spouses, the spouse of the bankrupt, neither curators cannot be prevaloire of the benefits identified in the marriage contract.
98. the payment of common debts contracted by the bankrupt in the exercise of his profession and which are point set by the liquidation of bankruptcy, cannot be prosecuted on the own assets of the spouse of the bankrupt.
CHAPTER VIII. -Distributions to creditors art. 99. the amount of the assets of the bankrupt, after deduction of the costs of the administration of the bankruptcy, relief that would have been granted to the bankrupt and his family and the sums paid to creditors initiative, is divided among all creditors, to marc franc of their claims.
CHAPTER IX. -From the sale of real property of the bankrupt s. 100. If there are no proceedings in expropriation of buildings, started before the pronouncement of the judgement declaring the bankruptcy, only curators are allowed to complete the sale. The judge-Commissioner ordered the sale at the request of the curators or a mortgagee. Forms prescribed by articles 1190 et seq. of the Code of judicial procedure are followed.
The foregoing provisions shall not apply to the mortgagee first registrant who may, after the close of the minutes of verification of claims, sell the property mortgaged, in accordance with articles 1560 to 1626 of the Judicial Code. However, if required by the interests of the mass and provided that a realization of the mortgaged property can be expected which does not disadvantage hypothecary creditors, the Court may, on the request of the Trustees and after having summoned by judicial fold the creditor mortgage first entered, order the suspension of execution for a maximum period of one year from the declaration of bankruptcy.
If buildings belong to the bankrupt separate property and his spouse, the commercial court may order the sale of undivided property, in respect for the rights of the other spouse, duly called. The sale in this case can be done at the request of the only curators.
If repossession mortgage transcription took place, the curators can still stop the effects, in the same forms, with the permission of the tribunal de commerce, the bankrupt called the sale of the seized buildings. They are in this case notify the pursuing creditor and to the bankrupt, eight days at least before the sale, the place, day and hour ausquels there will be. Similar meaning is made within the same period to all the creditor registered in their address in the registration.
Chapter x. - s. claim 101. the bankruptcy does not impair the right of claim of the owner of the assets held by the debtor.
However, the well-furnished sold with a clause suspending the transfer property until full payment of the price may be claimed from the debtor, in accordance with this clause, unless it has been established in writing at the latest at the time of the issuance of these goods. In addition, these goods must be found in nature in the debtor.
Thus, they can be become immovable by incorporation or be confused with another well furniture.
Under penalty of forfeiture, the action to claim must be exercised before the closing of the minutes of verification of claims.
S. 102 can be claimed in the event of bankruptcy, repair bills or other securities not yet paid, and found in nature in the portfolio of the bankrupt at the date of the Declaration of bankruptcy, when these discounts have been made by the owner with simple mandate to recovery and to keep the value at its disposal , or when they were on his part specially allocated to specific payments.
103 can be also claimed, as long they exist in nature, in whole or in part, the goods consigned 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 goods, which was neither paid nor set value, nor compensated current account between the bankrupt and the buyer.
104 may also be claimed the goods shipped to the bankrupt, as long as the tradition is in has been carried out in shops, or in those of the agent responsible for selling them for the account of the bankrupt.
Nevertheless, the claim is not admissible if, before their arrival, the goods have been sold without fraud, on bills of lading, or on invoices and consignment signed by the sender.
The claimant must respect the rights of the secured creditor seized by a bill of lading or a consignment note.
S. 105. the claimant is required to repay previously resumed the mass payments it received, as well as all advances made for car, commission, insurance, freight or other charges, and to pay the sums owing for same causes. .
S. 106 can be retained by the seller the goods by him sold which are not granted to the bankrupt, or who have not yet been shipped, either to him or to a third party on his behalf.
S. 107. in the case provided for by sections 104 and 106, and under the authority of the juge-commissaire, curators have the option to require the delivery of the goods by paying the price agreed between the seller and the bankrupt.
S. 108. the curators, with the approval of the juge-commissaire may admit claims claim for goods, effects of trade and other property.
If the interest of the mass required, curators may, with the permission of the juge-commissaire, to oppose the claim provided for in article 101 by paying the price agreed between the seller and the bankrupt, excluding interest and penalties, if any remain debts in the mass.
If there is a dispute, the tribunal shall decide at the request of the parties concerned, on the report of the judge-Commissioner.
TITLE III. -Of the art rehabilitation 109. the bankrupt declared non-excusable has fully paid in principal, interest and fresh, all by him, can get his rehabilitation.
If he is partner in a partnership, it can get it, only after have justified that all debts of the company have been fully paid in principal, interest in fees.
The bankrupt can be rehabilitated after his death.
110. the bankrupt declared excusable is deemed rehabilitated.
S. 111. any rehabilitation claim is addressed to the Court of appeal in the jurisdiction of which the bankrupt is domiciled. The plaintiff attached
at his request the receipts and other supporting documents.
The Prosecutor the Court of appeal, on the communication which has been made of the request, send shipments certified to the Prosecutor and the president of the commercial court of the domicile of the applicant, and if he has moved since the bankruptcy, the Attorney of the King and the president of the tribunal de commerce of spring o· It took place, by loading them to collect all information that are within their grasp on the truth of the facts which were exposed.
For this purpose, at the instance of King's Attorney, copy of the request is inserted by extract, in the Moniteur belge.
S. 112. any creditor who has not fully paid his debt in principal, interest and fees, and any other interested party, may, within one month of the publication in the Moniteur belge, opposition to rehabilitation by simple act at the registry, supported by vouchers. The opposing creditor may never be part in the rehabilitation procedure.
S. 113. after the expiry of the period provided for in article 112, the Attorney of the King and the president of the commercial court shall transmit, each separately, to the Attorney general at the Court of appeal, the information that they collected and oppositions which were able to be formed; they join their opinion on the request.
The Attorney general at the Court of appeal does make, on the whole, judgment on admission or rejection of the application in rehabilitation. If the request is rejected, it may be reproduced only after a year interval.
S. 114. the decision on rehabilitation is addressed both the Prosecutor and the president of the Court to which the request is made. These courts make make the transcript on their records.
TITLE IV. -Miscellaneous provisions concerning bankruptcy chapter I. - amendments to the Judicial Code articles 115. in article 631 of the Judicial Code, first and 2 paragraphs are replaced by the following paragraph: "§ 1.»
The commercial court competent to declare bankruptcy is one in which the merchant has its principal place of business or, if it is a corporate headquarters, on the day of admission of bankruptcy or the demand for justice. In the event of change of seat of a legal person within a period of one year before the application in bankruptcy, bankruptcy may also be requested before the Court in whose jurisdiction the legal person had its headquarters within the same period. This period shall commence from the publication of the change of registered in the Moniteur belge. The court first seised is preferred to one that is entered later. .
The competent commercial court to declare bankruptcy in accordance with article 3 of the law on bankruptcy, is within the jurisdiction of which the bankrupt has the target establishment. In case of plurality of establishments, the court first seised is competent.
When bankruptcy is declared in Belgium, disputes are related are the exclusive jurisdiction of the Court in the District of which it is open.
The first paragraph is applicable to the procedure laid down in article 8 of the law on bankruptcy.
The Court which ordered the divestiture of the property management, is alone competent to pronounce the bankruptcy of the debtor during the period laid down in article 8, paragraph 5, of the law on bankruptcy.
» Art. 116. article 1193ter of the same Code, y inserted by the Act of 18 February 1981 and amended by the law of March 10, 1983, is replaced by the following provision: «art.» 1193ter. - in the case provided for in article 1190 curators may ask the commercial court approval to sell OTC. Trustees shall submit to the Court a bill of sale draft prepared by a notary, appointed by the judge-Commissioner, and to expose the reasons for which the sale of OTC is required.
They join an expert report prepared by the expert that they have designated and a certificate of the Registrar of mortgages, posterior to the declaration of bankruptcy about existing entries and any transcript of command or seizure on property that must be sold. All persons with an inscription or a marginal on the property the same mention as the bankrupt must be heard or duly called by judicial fold.
They may apply to the Court that authorized to sell OTC is subject to certain conditions, such as the fixing of a minimum selling price.
The permission is granted if the interests of the bankrupt mass required and the opinion of the official receiver. The order must expressly indicate the reason why the sale of OTC serves 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 allowed by the tribunal and by the Ministry of the notary who wrote.
It distributes the price in accordance with article 1639 et seq.. The applicant or stakeholder creditors may appeal the order of the tribunal pursuant to Section 1031. » CHAPTER II. -Amendments to criminal laws art. 117. the heading of the first section of chapter II of title IX of book II of the penal Code, amended by the Act of 10 October 1967, is replaced by the following: 'first Section. -The State of bankruptcy-related offences.
S. 118. article 489 of the Code is replaced by the following provision: «art.» 489 - shall be punished by imprisonment of one month to one year and a fine of one hundred francs a hundred thousand francs or one of those penalties only, traders bankrupt within the meaning of article 2 of the law on bankruptcy or leaders, in law or fact, bankrupt corporations, who will have: 1 ° contracted for the benefit of third parties, without adequate consideration, too significant commitments with regard to the financial situation of the undertaking;
2 ° without legitimate impediment, failed to perform the obligations prescribed by article 53 of the Bankruptcy Act. » .
S. 119. an article 489bis, worded as follows, shall be inserted in the same Code: «art.» 489bis. - shall be punished by imprisonment of one month to two years and a fine of one hundred francs and five hundred thousand francs or one of those penalties only, persons referred to in article 489, that will: 1 ° with the intention of delaying the declaration of bankruptcy, made purchases to resell to below the course or that will be delivered to borrowings, circulations of effects and other ruinous means to obtain funds.
2 ° supposed expenses or losses or were able to justify the existence or use of all or part of the assets as it appears from documents and books of account at the date of cessation of payment and all property of any kind that it be obtained subsequently;
3 ° with the intention of delaying the declaration of bankruptcy, paid or promoted a creditor to the prejudice of the mass;
4 ° in the same intention, failed to make the admission of bankruptcy within the time limit prescribed by article 9 of the law on bankruptcy;
knowingly failed to provide, on the occasion of the admission of the bankruptcy, the information required by article 10 of the Act; knowingly provided inaccurate information on the occasion of the admission of bankruptcy or subsequently to enquiries made by the juge-commissaire or curators. » Art.
120. an article 489ter, worded as follows, shall be inserted in the same Code: «art.» 489ter. - shall be punished by imprisonment of one month to five years and a fine of 100 francs to five hundred thousand francs, the persons referred to in article 489 who, with fraudulent intent or deliberately harm, will have: 1 ° embezzled or concealed a portion of the assets;
2 ° subtracted, in whole or in part, books or records referred to in section 1 of Act of 17 July 1975 on accounting and the annual accounts of companies; the attempt of these crimes is punished with imprisonment of one month to three years and a fine of 100 francs to five hundred thousand francs.
Moreover, the perpetrators of these crimes or their attempt may be sentenced to the prohibition under article 33. » Art. 121. an article 489quater, worded as follows, shall be inserted in the same Code: «art.» 489quater. - public action concerning the offences referred to in articles 489, 489bis and 489ter continued regardless of any action that may be brought before the tribunal de commerce. The State of bankruptcy may however not be challenged before the criminal judge, if this State was the subject of a decision of the commercial court or of the Court of appeal, in force of res judicata, at the end of a procedure in which the accused was a party, either personally or as a representative of the bankrupt company. » Art. 122. an article 489quinquies, worded as follows, shall be inserted in the same Code: «art.» 489quinquies. - are punished to imprisonment of one month to two years and a fine of one hundred francs and five hundred thousand francs or one of those penalties only, those who fraudulently will be: 1 ° in the interest of trader or a trading company declared bankrupt even in the absence of intervention by the dealer or the leaders, in law or in fact, of this company, subtracts hidden or concealed all or part of the assets;
2 ° in the bankruptcy and asserted, either in their name by interposition of people, supposed or exaggerated claims. » Art. 123. an 489sexies article written as follows, is inserted into the same Code: «art.» 489sexies. - shall be punished by a term of imprisonment of one month to five years and a fine
hundred francs to five hundred thousand francs, the trustee who has been guilty of wrongdoing in its management. It is, moreover, condemned the refunds and damages and interest of the creditors.
In addition, the offender may be sentenced to the prohibition under article 33. ».
124. article 490 of the Code is replaced by the following provision: «art.» 490. - the courts imposing a sentence of imprisonment under articles 489, 489bis, and 489ter shall order that their decisions should be published by extract, at the expense of the convicted person, in the Moniteur belge.
This extract contains: 1 ° the name, surname, place and date of birth, and address and the registration number at the register of commerce of convicts and eventually the business name or the name and headquarters of the companies declared bankrupt which they are leaders in law or in fact;
2 ° the date of the judgment or the judgment of conviction and the Court which pronounced it;
3 ° the offences that gave rise to the convictions and sentences handed down. When, because of unity of purpose, a single sentence was pronounced by the head of one of the aforementioned offences and other offences, all offences punished by this single sentence will be mentioned. » Art. 125A article 623, paragraph 1, of the Code of criminal procedure, as amended by the law of April 7, 1964, «if fraudulent bankrupt» shall be replaced by the words "if he was sentenced for an offence in article 489ter of the penal Code.
CHAPTER III. -Amendments to tax laws art. 126. in article 184bis of the royal decree No. 64 of November 30, 1939, containing the Code of registration fees, mortgage and registry, y inserted by the Act of June 19, 1986 and amended by the Act of 22 December 1989, a new subparagraph is inserted between the first paragraphs and 2, to read as follows: «the first paragraph applies executors and trustees in cases ø·» the conviction, liquidation or collocation which results in payment, transfer or refund of amounts or values, is brought to their attention.
» Art. 127 to article 427, paragraph 4, of the 1992 income tax Code, the words: 'Article 447 of the Act of April 18, 1851 on bankruptcy, bankruptcy and stay' shall be replaced by the words "article 19 of the law on bankruptcy.
S. 128. at article 88, paragraph 3, of the law of 3 July 1969 implementing the value added tax Code, amended by the Act of 8 August 1980, 'Article 447, paragraph 2, of Book III of the Code of commerce regarding bankruptcy, bankruptcy and suspended' shall be replaced by the words 'Article 19, paragraph 2, of the law on bankruptcy'.
CHAPTER IV. -Changes various arts. 129 article 16 of the law of 18 November 1862 establishing the system of warrants, paragraph 1 is replaced by the following provision: «§ 1.» The exercise of the right granted to the pledgee by articles 13, 14 and 15, is not suspended by the death of the debtor. » Art. 130. article 9 of the Act of 5 may 1872 revising the provisions of commercial Code relating to the pledge and the commission is replaced by the following provision: «art.» 9. the exercise of the rights granted to the pledgee by the preceding articles is not suspended by the death of the debtor or the third funder of pledge. » Art. 131. in article 12, paragraph 4, of the Act of 23 June 1894 revision of the Act of April 3, 1851, on mutual, 'those who are declared bankrupt or judicial prohibition, or who have made an assignment of property, also long as they are not paid in full their creditors' shall be replaced by the words "those that are prohibited; those who have been declared bankrupt, as long as they do not have paid in full their creditors".
S. 132. in article 1 of the royal decree No. 22 of 24 October 1934 prohibiting convicted cerntains and to the bankrupts from exercising certain functions, professions or activities and conferring on the courts of commerce faculty decide such bans, amended by the acts of 4 August 1978, 9 March 1989 and 22 December 1990, in the first paragraph, g, the words "simple or fraudulent bankruptcy" are replaced by the words "one of the offences provided for in articles 489. «, 489bis and 489ter of the Criminal Code. .
S. 133 to article premierbis of the same arrested, y inserted by the Act of 4 August 1978, 'with simple or fraudulent bankruptcy' shall be replaced by the words "of one of the offences referred to in articles 489, 489bis and 489ter of the Criminal Code.
S. 134a article 3A, § 5, of the same arrested, inserted by the law of 4 August 1978, the following changes are made: 1 ° the first paragraph is replaced by the following subparagraph: "the bankrupt or one of the persons assimilated to the bankrupt by virtue of § 1 are cited before the commercial court at the request of the public prosecutor or any creditor remained outstanding in the bankruptcy. ';
2 ° paragraph 4 is replaced by the following subparagraph: "if necessary, the public prosecutor is understood in its opinion."
S. 135 article 10 of the Act of 15 June 1935 concerning the use of languages in judicial matters, replaced by the Act of September 23, 1985, the words 'for judicial composition, bankruptcy or suspension of payment"shall be replaced by the words 'in matters of judicial administration and bankruptcy'.
136. in article 13 of the royal decree No. 72 of November 30, 1939, regulating exchanges and futures on goods and commodities markets, the profession of brokers and intermediaries involved in these markets and the exception in paragraph (2) of game plan, 1 is replaced by the following provision: «1 ° bankrupts and persons convicted for infringement of articles 489. 489bis and 489ter of the Criminal Code, unless they have been rehabilitated; ».
S. 137 A section 25 of the Act relating to the commercial register, contact July 20, 1964, as amended by the laws of 10 October 1967, July 14, 1976, 12 July 1989 and January 19, 1990, the following changes are made: 1 ° the 8th division is replaced by the following: '8 ° declaring or related bankruptcy, closing operations of the bankruptcy "acting on the guarantors or the obligatoriness of the bankrupt, declaring the bankrupt rehabilitated."
2 ° the 9th division is replaced by the following: «9 ° conviction of the head of articles 489, 489bis and 489ter of the Criminal Code ";
3 ° 11 ° division is repealed.
S. 138a article 310 of the General Act on Customs and Excise, the words 'or it must suspend its payments' are deleted.
TITLE v - Provisions which exceed the scope of bankruptcy chapter I. - amendments to the Judicial Code articles 139. in article 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 applicant may, due to special circumstances and with the consent of the Justice of the peace, be stipulated in the specifications of the loads and conditions of sale, either decide forthwith that the formality of one-upmanship is not applicable."
140. in article 1621 of the same Code, the first paragraph is replaced by the following paragraph: "where there is prior to the transcription of the seizure, a judgment ordering the sale of seized buildings, either under article 1186 1191 or 1211, or in any other case o· the sale of real property is held auctions pursuant to judicial decisions, seized may after this transcription, call grasping before the judge of the situation of the property, to suspend the prosecution of seized real estate implementation during a term which is set by the judge, all things remaining in State.
This term may not exceed two months. » .
CHAPTER II. -Amendments to criminal laws art.
141. article 490bis of the Code, inserted by the Act of 10 October 1967, is replaced by the following provision: «art.» 490bis. - is punishable by imprisonment of one month to two years and a fine of 100 francs or one of those penalties only, one who fraudulently organised their insolvency and has not performed its obligations taken.
The Organization of insolvency by the debtor can be inferred from any circumstance likely to reveal his will to go insolvent.
With respect to the third co-author or accomplice of the crime, public action is off if it renders property that had been handed over. » Art. 142. an article 492bis, worded as follows, shall be inserted in the same Code: «art.» 492bis.-shall be punished by imprisonment of one month to five years and a fine of 100 francs to five hundred thousand francs, the leaders of law or of fact corporations and civil associations non-profit who, with fraudulent intent and personal purposes, directly or indirectly, have made goods or the credit of the Corporation a use they knew significantly detrimental to heritage and those interests of its creditors or partners.
In addition, the convicted may be sentenced to ban, in accordance with article 33. » CHAPTER III. -Amendments to the laws on commercial society article 143. in article 12, § I, laws on commercial companies coordinated November 30, 1935, amended by laws of March 6, 1973, 24 March 1978, December 5, 1984, July 15, 1985, 29 June 1993 and 13 April 1995, the following changes are made: 1 3 ° c °), is supplemented by the following sentence:
«In case ø·» the liquidator is a legal person, the extract will contain the designation of the natural person who represents it on the exercise of the powers of liquidation ";
2 ° 5 ° c), the following sentence is added: «in case ø·»
the liquidator is a legal person, the extract will contain the designation or the change in the designation of the natural person who represents it on the exercise of the powers of liquidation ";
3 ° 6 °, paragraph 2, c), is supplemented by the following sentence: «in case ø·» the liquidator is a legal person, the extract will contain the designation or the change in the designation of the natural person who represents it on the exercise of the powers of liquidation.
S. 144. in the same acts, it is inserted an article 178ter, worded as follows: «art.» 178ter. - modification of the name of a company being wound up is prohibited. ».
145. in the same acts, it is inserted an article 178quater, worded as follows: «art.» 178quater - a procedure for transfer of the seat of a company in liquidation may only be implemented after approval by the tribunal de commerce in the area in which the headquarters of the company.
Approval is sought by way of petition to the diligence of the liquidator.
The tribunal shall decide all cases postpone. The Crown is understood. The tribunal grant the approval if it considers that the transfer of the seat is useful for to liquidate.
An Act concerning the transfer of a company in liquidation cannot be validly filed pursuant to section 12 if the commercial court is attached a copy of the decision of approval. » .
S. 146. in the same coordinated laws, section 179, as amended by the law of March 6, 1973, is supplemented by a paragraph 3 as follows: «in case ø·» the liquidator is a legal person, a natural person who represents the liquidator must be designated in the instrument of appointment. Changes to the designation of the individual must be decided in accordance with article 1(2) and filed and published in accordance with article 12. » Art. 147. in the same laws coordinated, it is inserted an article 185bis, worded as follows: «art.» 185bis.-in the company anonymous and private limited liability companies, the Member of the college of the liquidators who has, directly or indirectly, interest of nature to a decision or submitted to the college operation, is required to comply with article 60, applicable by analogy.
Case-ø· a sole liquidator was appointed and it is in this opposition of interests, it refer to the partners and decision cannot be taken or the operation cannot be performed on behalf of the company by an ad hoc Agent.
If the liquidator is the sole shareholder of a company private limited, article 133, paragraph 3, shall apply by analogy. » Art. 148. article 201, 3 ° bis, same coordinated laws, inserted by the Act of 30 June 1961 and amended by the laws of the February 23, 1967, December 5, 1984, December 22, 1989, 29 June 1993 and 13 April 1995, is supplemented by the words "and 178bis".
CHAPTER IV. -Provision repealing and entry into force article 149. the Act of April 18, 1851 on bankruptcy, bankruptcy and stay as amended by the laws of May 31, 1890, July 27, 1934, by royal decree No. 150 of March 18, 1935, by the law of August 10, 1946, may 18, 1956, July 29, 1957, July 24, 1962, of April 12, 1965, October 10, 1967 July 2, 1969, may 27, 1974, July 17, 1975, July 14, 1976, of 24 March 1978, April 19, 1983, March 28, 1985, 11 April 1989, January 14, 1993 and December 24, 1993, is hereby repealed.
S. 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 in the Moniteur belge.
Section 3 comes into force the day of the entry into force of the Convention on insolvency, done at Brussels, 23 November 1995.
Article 13 applies only to the declarative judgments of bankruptcy which will be delivered after the entry into force of this Act.
The obligation prescribed by article 76 to convene a meeting of creditors three years after the judgement declaring the bankruptcy applies only to bankruptcy declared after the entry into force of this section.
Article 101 shall apply only to the clauses suspending the transfer of property until full payment of the price, established in writing after the entry into force of this provision.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given at Chateauneuf-de-Grasse, 8 August 1997.
ALBERT by the King: the Minister of Justice, S. DE CLERCK sealed with the seal of the State: the Minister of Justice, S. DE CLERCK for consultation of the footnote page, see image