La función del ministerio fiscal en el concurso de acreedores

Resumo

The object of this work is to study the role of public prosecutors outside the criminal justice system in the different phases of the insolvency process in Spain, based on the analysis of the historical evolution of the institution itself and its constitutional power and duty to defend the rule of law, the public interest and foster the social interest before the Courts of Justice. After an exposition of the comparative framework considered as reference (France, Italy, Portugal, Brazil, United Kingdom and United States of America), this work presents an analysis on the most important issues of the legal regime that the Public Prosecutor, as the enforcer of the rule of law, should consider in order to fulfil the duties, which set forth by the applicable insolvency law: reporting indicia of insolvency involving defendants in criminal cases, issues regarding jurisdiction, adoption of measures restricting fundamental rights and fortuitous or culpable qualification in the context of the insolvency procedure. The conclusion presents a series of lege ferenda proposals aimed at improving the efficiency of the Public Prosecutor's Office in the insolvency process and expanding some of its powers, bearing in mind the Spanish legal tradition and the conclusions of the comparative law study and contrary to the recent proposal to reform the Refunded Text of the Insolvency Law.