Derecho concursal
Insolvencia corporativa y personal, administración, liquidación y convenios.
Introducción
El derecho concursal proporciona el marco legal para empresas e individuos que no pueden pagar sus deudas.
In Brief
A company is insolvent if it cannot pay debts as they fall due (cash-flow test) or liabilities exceed assets (balance-sheet test). Directors who continue trading when they knew insolvent liquidation was inevitable risk personal liability for wrongful trading under s.214 Insolvency Act 1986. Creditors owed over £750 can serve a statutory demand; if unpaid after 21 days they may petition for winding-up.
Principios fundamentales
Corporate Insolvency — A company is insolvent if it cannot pay its debts as they fall due (cash-flow test) or its liabilities exceed its assets (balance-sheet test) (s.123 Insolvency Act 1986).
Administration — A procedure to rescue a company as a going concern, achieve a better result for creditors than winding up, or realise property to pay secured/preferential creditors (Schedule B1, Insolvency Act 1986).
Liquidation — The process of winding up a company and distributing its assets. May be voluntary (members' or creditors') or compulsory (by court order on a petition).
Company Voluntary Arrangement (CVA) — A binding agreement between a company and its creditors to pay debts over time, supervised by an insolvency practitioner.
Bankruptcy — The personal insolvency equivalent for individuals who cannot pay their debts. A bankruptcy order is made by the court, and a trustee in bankruptcy administers the estate.
Individual Voluntary Arrangement (IVA) — A formal agreement between an individual and creditors to repay debts, supervised by an insolvency practitioner.
Wrongful Trading — Directors may be personally liable if they continued trading when they knew or ought to have concluded there was no reasonable prospect of avoiding insolvent liquidation (s.214 IA 1986).
Fraudulent Trading — Where a company's business is carried on with intent to defraud creditors, those knowingly party to it may be personally liable (s.213 IA 1986).
Leyes clave
Casos principales
Escenarios comunes
Company cannot pay its debts
A creditor owed more than £750 can serve a statutory demand. If the company fails to pay within 21 days, the creditor may petition the court for a winding-up order. The company may instead propose a CVA or seek administration to restructure.
Director continued trading while insolvent
If a company enters insolvent liquidation and a director knew or ought to have known there was no reasonable prospect of avoiding it, the liquidator may bring a wrongful trading claim under s.214 IA 1986. The director may be ordered to contribute to the company's assets.
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Frequently Asked Questions
What is the difference between administration and liquidation?
Administration is a rescue procedure that temporarily protects a company from creditors while an insolvency practitioner attempts to rescue the business as a going concern, achieve a better result than liquidation, or realise property for secured creditors. Liquidation ends the company: assets are sold, debts are paid in priority order, and the company is dissolved. Administration often precedes a sale of the business; liquidation is terminal.
Can I be made bankrupt for a small debt?
A creditor can petition for bankruptcy if the debt is £5,000 or more and has not been paid. However, HMRC and commercial creditors rarely petition for small amounts because the process is expensive and unlikely to recover the debt. You can challenge the petition if the debt is disputed. Debt Relief Orders (for debts under £30,000) and Individual Voluntary Arrangements may be alternatives.
How long does bankruptcy last?
An individual is typically discharged from bankruptcy after 12 months, at which point most debts are written off. However, a Bankruptcy Restrictions Order (BRO) can extend restrictions for up to 15 years if the Official Receiver finds dishonesty, recklessness, or other misconduct. Income payments agreements/orders can continue for up to 3 years after discharge.
What is a preference in insolvency law?
A preference occurs where an insolvent company (or bankrupt individual) gives one creditor a better position than they would otherwise have had, within 6 months before insolvency (2 years for connected persons). The liquidator can apply to the court to have the transaction set aside (s.239 Insolvency Act 1986), restoring the creditor to their original position.
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