Las garantías financieras en el concurso

Résumé

The purpose of this paper is to analyze the unique system of financial collaterals and its resistance to bankruptcy. The RDL 5/2005 of March 11, gives the financial collateral arrangements a differentiated treatment in bankruptcy proceedings that lets them enjoy a protection especially privileged in relation to other creditors, which include the owners or beneficiaries of collateral. The privileges enjoyed by a creditor holding a financial guarantee far outheigh those of any Other class of secured creditor with special privilege. The privileges which there enjoys a titular creditor of a financial guarantee overcome extensively those of any another class of secured creditor with special privilege. The RDL 5/2005, moved to the Spanish legal system, the Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002, on financial collateral arrangements. The purpose of the Directive is to increase the productivity of the Spanish economy in the framework of the European Union, improve the efficiency and competitiveness in the financial markets, mitigate their risks and to channel the savings toward productive investment, as indicated in its preamble. For this it was necessary to achieve a wide community harmonisation in the framework of the financial guarantees and with this "sort and systematize the rules applicable to netting agreements and guarantees of a financial nature". The RDL regulates two categories of agreements: the netting agreements and financial collateral arrangements. White both contractual arrangements are pursuing the same purpose, that is, to serve as an instrument of warranty streamlining transactions and reducing credit risk in the event of the insolvency of one of the parties, their characterization and legal nature is different. To be able to apply the norms of the RDL 5/2005 to these two agreements categories, it is needed that they assemble the subjective requisites, relatively to the nature of the subjects that take part in the operation, and targets that in him are demanded. These requisites are established in the RDL with such a largeness that they can take refuge in its individual diet most of the financial operations that are celebrated in our country. The differences that introduces this special scheme were projected onto four faculties that can exercise the part not debtor's: a) Opposite to the general regime established in the bankruptcy Act which prohibits declare expired contract early before a situation of insolvency law, the law applicable to the financial guarantees admits it. b) In the general scheme of the bankruptcy law, netting is prohibited as a form of extinction of obligations, while it is admitted one whose requirements had frequented before filing for bankruptcy. In the special regime of the RDL 5/2005 netting is allowed before and after the bankruptcy. Their justification is the function performed within the financial sector to which gives warranty and safety. The master agreement is the instrument through which the compensation can be agreed framework of contractual netting. c) The differences between the regime applicable to the financial guarantees are also noticeable in regard to its implementation. The Bankruptcy Act provides that, once declared the contest, may not commence executions unique on property of the contest that are necessary for the exercise of their professional or business activities and the suspected in processing shall be suspended. Unlike the general scheme the RDL supports the execution of a security when there is a breach of obligations or any fact agreed to between the parties. This faculty of execution may not be blocked or restricted by the statement of competition of the creditor in such a way that the guarantee may be run separately and in accordance with their own terms. d) Finally, the possibility of terminating the acts performed by the contest previous to the declaration of competition, it is also subject to a different regime in the RDL 5/2005. The LC provides that once declared the contest, will be cancellable acts harmful to the active mass performed by the debtor within the two years previous to the declaration of competition; after this period the acts performed by the debtor only may be terminated in accordance with the general system of the Civil Code. In the special regime, laying down two regimes of different protection: the "financial collateral arrangements" may only be terminated or be challenged when they have made in fraud of creditors, while the "netting agreements" require prejudice in this recruitment. We find no justification for such a distinction. As a final conclusion, this whole scheme is logical and reasonable within the scope for which it is designed, the markets for financial products in which the pledged assets or transmitted under warranty enjoy a extreme liquidity which allows the execution of the guarantees either by sale or by appropriation in the relevant market, That is why it is vital to a restrictive interpretation of the rule, to prevent an application from the privileges that incorporates that exceed the field for which they were created. Also, it would be highly recommended a modification of the contents of the RDL 5/2005 through which amend the subjective scope of application of the rule that precludes its application to natural persons and to any kind of legal person without limitation.