Protección de los acreedores frente a los procesos de insolvencia de personas naturales no comerciantes

Abstract

Although there are a variety of laws and decrees that introduce the regulation of the declaration of insolvency for non-trading natural persons, only for debtors, there is also a legislative inefficiency that does not provide sufficient protection to the creditor within this circumstance. An inefficiency that brings to light the discrimination and inequality presented by the people promoting these services, although Law 550 of 1999 was issued by the legislator with the intention of promoting an attitude of support and solidarity for those with declining financial behaviors. But, what would happen if the creditor were the person who declares the state of insolvency and demands compliance with the obligation for their economic replacement? Taking into account that said person only depends on that money. Or, what would happen if both parties declare this state? These are one of the many dilemmas that arise in today's society, which seek support in the law, or perhaps a quick solution to mediate this problem, but unfortunately, as touched upon at the beginning, only the debtor can make use of legislation to support himself in the negotiation of debts, generating a negative impact on creditors, especially unsecured ones, since they receive only a fraction of what they are owed. In addition, the process significantly delays the payment of debts, affecting their liquidity and financial stability. However, the insolvency procedure is extensive and complicated, which generates high costs in time and resources for both the debtor and the creditors. So, putting it on a scale, the creditor presents a great disadvantage and monetary loss, both in the possible payment agreement and in the legal and procedural costs to open the judicial procedure. Subsequently, the lack of legal and procedural guarantee to the creditor puts at risk the non-materialization of the insolvency law, as a reasonable justification is the collaborative abstinence of this subject, because it is not fair to make a complete loan and receive a part of it, or if necessary, not receive anything. Finally, it is necessary to mention that the negative impact that this problem brings with it affects the national economy given that any declaration of a state of exception that puts the income of each merchant at risk will not be satisfied by anyone who can do so, due to the fear that the loss of their economy instills and the ineffectiveness of the law to guarantee their retribution.