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Insolvency Law 2017/2018

  • 5 ECTS
  • Taught in Portuguese
  • Final Assessment

Objectives

That the sudent is capable of:
• recognizing the basic concepts of Insolvencial Law;
• analyzing the assumptions of the insolvency declaration;
• operationalize the whole insolvencial process of the singular and plural person according to the CIRE in case studies;
• identify the bodies of insolvency proceedings;
• identify the insolvency declaration efects.

Recommended Prerequisites

Commercial Law
Society Law
Civil Procedure Law
Contract Law

Teaching Metodology

To meet the requested in the curriculum development and to face the proposed objectives, we follow many teach/learning methodologies. The expositive class it’s not dismissed, where the idea debate and the well-founded opinion expression it is a constant, with the analysis and critics of CIRE, ordinary legislation and Court Rulings.
At the same time the juridic resolution of proposed problems allows a close contact with the work reality and with the dificulties and steps that are going to be outdated in a real context through case studies.
To follow this process we incentivate the student to research and promote himself and his own study (with tutorial support).

Body of Work

PART I – BASIC NOTIONS – The Insolvency Proces
PART II – Insolvency declaration prerequisites
PART III – The declarative process fase of the insolvency process – Threshold appretiation of the insolvency request – Notification and Quote
PART IV – The insolvency process organs – The creditors commision
PART V – The insolvency declaration efects – Patrimonial efects – Possible efects – Guilty insolvency – External procedure efects of the insolvency declaration – Effects on credits – Resolution for the benefit of the bankrupt estate and the “Impugnação Pauliana”
PART VI – The executive fase of the insolvency process – Veryfing and graduation sentence of the credits – The bankrupt estate – Liquidation – Payment
PART VII – Specific provisions of the singular person insolvency
PART VIII – Termination of the proceeding

Recommended Bibliography

Manual de Direito da Insolvência
Maria do Rosário Epifânio
Editora: Almedina | Ano: 2014
ISBN: 9789724058306

Complementary Bibliography

Direito da Insolvência
Luís Manuel Teles de Menezes Leitão
Editora: Almedina | Ano: 2013
ISBN: 9789724052250

Insolvency and Company Recovery Code - Noted
Luís A. Carvalho Fernandes, João Labareda
Editora: Quid Juris | Ano: 2013
ISBN: 9789727246519

O Processo de Insolvência e a Recuperação da Sociedade Comercial de Responsabilidade Limitada
Pedro Pidwell
Editora: Coimbra Editora | Ano: 2011
ISBN: 9789723219081

I Congresso de Direito da Insolvência
Coordenação: Catarina Serra
Editora: Almedina | Ano: 2014
ISBN: 9789724050676

II Congresso de Direito da Insolvência
Catarina Serra
Editora: Edições Almedina | Ano: 2014
ISBN: 9789724055671

Colectânea de Estudos sobre a Insolvência
Luís A. Carvalho Fernandes, João Labareda
Editora: Quid Juris | Ano: 2009
ISBN: 9789727244478

Weekly Planning

1st week:
PART I
Brief notions
Insolvency proceedings
§1 Insolvency Law
§2 The insolvency proceedings
§3 Sources

PART II
Assumptions of the insolvency declaration
§1 Subjective Assumption
§2 Assumption goal
1. The debtor's insolvency
2. The insolvency special ones
3. The impending insolvency
4. The contents of the insolvent

2nd week:
PART III
Declarative phase of insolvency proceedings
§1 General aspects
§2 active Legitimacy
1. The debtor
2. The legal guardians, creditors and the public prosecutor
3. The provisional liquidator
§3 initiating proceedings
1. Requirements
1.1. Application submitted by the debtor
1.2. Request from other legitimate

3rd week:
2. Findings of the injunction application for declaration of insolvency
2.1. preliminary rejection of the application
2.2. Dispatch vices correction
2.3. immediate declaration of insolvency
2.4. Citation Order
2.4.1. Legal regime
2.4.2. Effects
§4 Opposition by the debtor
§5 Audience discussion and trial
§6 declaration of insolvency Sentence
1. Content
1.1. Content-rule
1.2. special cases
1.2.1. The failure of the insolvent estate
1.2.2. The payment plan


4th week:
2. Notification and quote
3. Register
4. Reaction Media
4.1. Opposition embargoes
4.1.1. legitimacy active
4.1.2. Processing
4.2. resource
§7 judgment rejecting the request for the declaration of insolvency
1. Notification, publication and registration
2. Disputes
3. Responsibility for application unfounded

5th week:
PART IV
The bodies of insolvency proceedings
§1 The insolvency practitioner
1. Appointment and removal
2. Status and functions
3. Remuneration
4. Duty of information and accountability
5. Responsibility
§2 The creditors' meeting
1. Composition
2. Call and operation
3. Right to vote
4. Resolutions
5. Powers and functions
6. The report's assessment of assembly
6.1. Function
6.2. Waiver of its realization

§3 The creditors' committee
1. Appointment
1.1. Appointment by judge
1.2. Assembly of intervention creditors
2. Functions, powers and functioning
3. Liability of members

6th week:
PART V
The effects of the declaration of insolvency
§1 Effects on the debtor and other persons
1. Automatic Effects
1.1. personal effects
1.1.1. Duty of presentation
1.1.2. Duty of information and cooperation
1.1.3. Investment Residency
1.1.4. legal and family effects
1.1.4.2. The exercise of the office of property administrator
1.1.4.3. The particular case of the exercise of parental responsibilities
1.1.5. legal and political effects

7th week:
1.2. property consequences. Deprivation of the disposition of powers and administration
1.2.1. Scope of application
1.2.1.1. subjective scope
1.2.1.2. scope goal
1.2.1.3. functional scope
1.2.2. Supply
1.2.3. Violation
1.2.4. mass debt payment
1.2.5. deviations
1.2.6. legal
1.3. Effects on the governing bodies of the debtor

2. Possible effects
2.1. Right to food
2.2. Legal and criminal purposes
2.2.1. The insolvency willful crime
2.2.2. The credit frustration of crime
2.2.3. The negligent insolvency crime
2.2.4. The creditors of favoritism crime
2.3. Dependent on the insolvency of qualification effects

8th week:
2.3.2. Guilty Insolvency
2.3.2.1. Notion
2.3.2.2. Legal presumptions
2.3.2.2.1. The assumptions of paragraph 2 of Article 186
2.3.2.2.2. The assumptions of paragraph 3 of Article 186
2.3.3. insolvency qualification effects as culpable
2.3.3.1. Introduction
2.3.3.2. Inhibition to manage third party assets
2.3.3.2.1. Legal regime
2.3.3.2.2. Consequences of their violation
2.3.3.3. Inhibition for the exercise of trade
2.3.3.4. Obligation to compensate
2.3.3.4.1. Legal regime
2.3.3.4.2. corporate responsibility versus insolvencial responsibility
2.3.3.5. disqualification
2.3.3.5.1. Legal regime
2.3.3.5.2. unconstitutional
2.3.4. The full qualifying incident
2.3.4.1. processing
2.3.4.1.1. Incident opening in judgment declaring insolvency
2.3.4.1.2. further incident opening
2.3.4.1.3. subsequent processing
2.3.4.2. Effects
2.3.5. Limited incident qualification
2.3.5.1. Scope of application
2.3.5.2. processing
2.3.5.3. Effects
2.3.6. convolação possibility of limited incident in full incident and vice versa

9th week:
§2 external procedural effects of the declaration of insolvency
1. Introduction
2. Effects on declarative actions
2.1. The fate of actions
2.1.1. Legal regime
2.1.2. The unifying Judgment No. 1/2014 158
2.2. The replacement procedure of the insolvent
3. Effects on executive actions
5. The effects on the debts of the insolvent estate
6. The effects of the actions foreseen in art. 82

10th week:
§3 Effects on credits
1. Maturity immediate debt
2. Compensation
3. Limitation periods and expiry
4. Count interest
§4 effects on ongoing business
5. contract Promise
5.1. Legal regime
5.2. Insolvency of the promissory seller in dividend promises with traditio
5.2.1. The unifying Judgment of Court No. 4/2014 187
10. Attorney
11. Employment contract
11.1. The insolvency worker
11.2. The insolvency of their employer
6. URGE

11th week:
Resolution in favor of the insolvent estate and pauliana challenge
1. Preliminary considerations
2. Conditional Resolution
3. unconditional Resolution
4. Resolution Form and prescription
5. Enforceability to third parties
6. Disputes
7. Effects

8. Disputes pauliana

Termination of the declaration of insolvency effects

12th week:
PART VI
The executive phase of the insolvency proceedings
§1 Preliminary considerations
§2 Verification and ranking of claims
1. Basic concepts
2. The attached verification and ranking of claims
2.1. Lodgement of claims
2.1.1. credits claimable
2.1.2. processing
2.1.3. list of creditors
2.1.4. Challenges to the list of recognized creditors
2.2. Sanitation process
2.3. Instruction
2.4. Judgment

13th Week
2.4.1. Check sentence and ranking of claims
2.4.2. Claims against the mass
2.4.3. Claims against the insolvency
2.4.3.1. Secured claims
2.4.3.2. The privileged credits
2.4.3.3. Common credits
2.4.3.4. Subordinated claims
2.4.3.4.1. People especially related to the debtor
2.4.3.4.2. interest
2.4.3.4.3. Conventional subordination
2.4.3.4.4. Subordinated loans
3. The attached credit further check - put completion 1st class 21

The bankrupt estate
1. Notion
2. Object
3. Function
4. Arrangements registries
5. Inventory
6. Administration
6.1. general principle
6.2. Administration by the debtor
6.2.1. requirements
6.2.2. Powers of the debtor
6.2.3. Other effects of administration by the debtor
6.2.4. administration of term

14th Week
7. Settlement
7.1. preliminary considerations
7.2. procedural time
7.2.1. Unappealable sentence
7.2.2. Assembly report appreciation of creditors
7.3. Cases where there is no settlement
7.3.1. settlement of layoff
7.3.2. settlement disruption
7.3.3. Stay of liquidation
7.3.4. Settlement exemption
7.4. Procedure
7.5. special cases
7.5.1. Need for consent
7.5.2. Company sale
7.5.3. Disposition of collateral object goods

Payment
1. mass of debts insolvent
2. Claims on insolvency
2.1. General considerations
2.2. credits secured
2.3. privileged credits
2.4. common credits
2.5. subordinated credits
3. Final Allocation




15th Week
PART VII
specific provisions of the insolvency of natural persons
1. Preliminary considerations
2. Exemption from remaining passive
2.1. introductory notions
2.2. assumptions
2.3. processing
2.3.1. Application
2.3.2. initial order
2.3.2.1. income transfer available
2.3.2.2. debtor's obligations
2.3.2.3. early dismissal of procedure termination
2.3.3. final dispatch
3. Borrowers not entrepreneurs or small business owners
3.1. Scope of application
3.2. Legal regime
3.2.1. The payment plan to creditors
3.2.1.1. processing
3.2.1.2. Approval
3.2.1.3. homologation
3.2.1.4. Effects
3.2.2. The insolvency of both spouses

PART VIII
Termination
§1 Scope
§2 Advertising
§3 Effects

Demonstration of the syllabus coherence with the curricular unit's objectives

We want the student to accquire a knowledge that allows him, with the use of legislation, to find the resolution paths of the practical questions that might merge in this context. Therefore, the recognition of the basic concepts of Insolvencial Law is reached through the study of PART I and with the study of the BASIC NOTIONS. To analise the prerequisites of insolvency and his efects identifiying all the process steps of the declarative and executive process according to the present CIRE, with the use of jurisprudential study cases, wich goes with the PART III and PART V. Identify the various efects of the insolvency declaration of the legal person wich we reach with the contentes of PART V and the insolvency declaration of the singular person according to PART VII.

Demonstration of the teaching methodologies coherence with the curricular unit's objectives

To all learning objectives we use the expositive method with the ideas debate and the opinion expression well-founded. We add that to recognize the basic concepts of Insolvencial Law on his BASIC NOTIONS we use the interrogative method to check the student perceptions in Commercial Law and Society Law.To analise the prerequisites of insolvency and his efects and to identify the process steps: legal and singular person (PART VII) according to the presente CIRE we use the study case methodology. To identify the insolvency declaration efects and to distinguish the various possible efects we use the critcs and analysis of the CIRE, ordinary legislation and Supreme Court Rulings.

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