INSOLVENCIA PUNIBLE Y SU INCIDENCIA EN EL REGISTRO DE LA PROPIEDAD.

Abstract

The uniqueness of civil liability for offences of punishable insolvency (such as the offence of concealment of assets) resides in the criminal court's declaration annulling the legal act that caused the real or fictitious insolvency and thus frustrated the enforcement of the debts owed to the creditor or creditors. In consequence of the annulment, the court orders the cancellation of any registration entries reflecting acts transferring ownership of the assets in question. In order for the court to reach such a pronouncement, it must be asked to do so by the public prosecutor or by a party to the proceedings. However, sometimes the registered situation of the property cannot be modified after a ruling has been given finding the bankrupt guilty. This places the registrar in a difficult position. On the one side, the registrar must do as ordered by the judicial authorities; but, on the other side, the registrar must, on his or her responsibility, respect the rules governing mortgages and protect anyone who has relied on registry information to purchase property. The solution involves the smooth coordination of judges, public prosecutors and registrars and a good knowledge of the role that each must play. Obviously, it is not the registrar's function to check charges or judicial decisions. The registrar neither judges nor accuses, but then, neither does the judge or public prosecutor perform the function of scrutiny for proper document form, a task that belongs to the exclusive sovereignty of the registrar.