INCONSISTENCIAS EN EL PROCESO DE TRANSICIÓN DE LA INSOLVENCIA VISTOS DESDE LA RAMA CIVIL A LA RAMA PENAL, A PARTIR DE LA VIGENCIA DEL CÓDIGO ORGÁNICO GENERAL DE PROCESOS.

Abstract

In the present work, a critical analysis of the Ecuadorian procedural system was carried out in relation to the bankruptcy trial, and its transition to the criminal sphere, with the notification to the Fiscalía General del Estado, for the investigation of the alleged insolvency fraudulent, all this in accordance with the provisions of article 423 of the Código Orgánico General de Procesos. For this, a brief doctrinal account was made on the determination of insolvency, the presumption of insolvency and fraudulent insolvency. In the same way, it was studied how, according to our legislation, in the bankruptcy process there is a presumption of insolvency, but not a determination of insolvency. Consequently, we explain how this presumption of insolvency is presented within the bankruptcy proceeding and why this presumption does not gather sufficient elements to transfer the bankruptcy to the sphere of criminal law. To achieve this, an analysis of comparative legislation between Chile and Colombia on insolvency with Ecuadorian legislation was taken as a reference. Finally, as a result, we warn of the evident inconsistency within the scheme of the bankruptcy proceedings, for the determination of insolvency and the disclosure to the prosecution for the pertinent investigations. For which it is suggested that, prior to the notification of the prosecution, more effective procedures be carried out within the bankruptcy process, through the functions of the trustee, which allow moving from an initial presumption of insolvency to a determination of insolvency with possible criminal repercussions.