Prohibición de salida del país en procesos de concurso de acreedores.

Abstract

In the present work, from the perspective of the Ecuadorian legal system, the figure of insolvency proceedings, the different types of insolvency proceedings of creditors, their origin, the birth of insolvency proceedings due to the breach of an obligation, being this by fortuitous event or force majeure, culpable and fraudulent or willful misconduct. The legal problem that is situated in the courts in the procedural practice of insolvency proceedings will be analyzed, insofar as there is an antagonistic criterion on the part of the judges, some that grant a precautionary measure of prohibition of leaving the country to the legal persons in the interposed person of their legal representative and other judges who do not do so. For this, the figure of the legal representative is determined, like that of the legal person. The characteristics of the measure prohibiting leaving the country and the right to human mobility are also established. In the same way, the cause of the unequal criteria is determined, this being article 423 #10 of the General Organic Code of Processes. Finally, after the analysis collected in the present work, it is determined that the measure of prohibition of leaving the country issued against the legal representatives of the debtor company in a state of insolvency, is not appropriate within our legal system, due to the fact that the legitimate passive is the legal person, not the legal representative and the legal representative is not responsible for the obligations contracted by this autonomous and independent entity that is the legal person, this is the one that is responsible for the obligations contracted and must respond with its heritage. Therefore, the reform of article 423 #10 is recommended, so that the wording is clear and does not give options to different interpretations by the judges.