Determination of assets to continue competitive activity

The TS declares that the commercial judge is competent to rule on whether the assets to be seized are necessary to continue the business activity of the company in bankruptcy, and execution must be suspended until such declaration is made.

A social court issues a general order of execution and seizure of assets of a company in a situation of “pre-contest”, considering that the amounts seized were not a necessary asset for the performance of the company’s commercial activity. The executed company is declared in bankruptcy, but at a later date to the execution and seizure of goods. An order of the court of the mercantile declares that the seized goods were necessary for the continuity of the business activity. A court of the social dictates a general order of execution and seizure of goods of a company in situation of “preconcurso”, considering that the Seized amounts were not a necessary asset for the performance of the company’s commercial activity. The executed company is declared in bankruptcy, but at a later date to the execution and seizure of goods. A court order of the mercantile declares that the seized goods were necessary for the continuity of the business activity.

A cassation appeal is filed for the unification of doctrine in order to determine who corresponds the competence to declare if the assets of the bankrupt that have been seized are necessary to continue the business or professional activity, for the purpose of enforcing in their case the suspension of executions in process before the declaration of insolvency.
The commercial court is competent to make the declaration on the need of the goods seized by the court of the social for the continuity of the bankrupt’s business activity, the execution must be suspended until such declaration is made. The criterion is valid both for administrative executions and those of a judicial nature, including those followed before the social jurisdiction.

The competence of the court of the social to execute seized assets without there being a previous declaration of its necessary character for the continuity of the activity, is only proclaimed when the company is no longer operative and this statement is inadmissible.