Análisis de la inseguridad jurídica provocada por la falta de declaratoria de insolvencia en el Código Orgánico General de Procesos

Abstract

The Constitution of the Republic acknowledges as a right of protection of all persons subject to a judicial proceeding, the right to legal certainty, which is grounded on the respect for the Constitution and the existence of previous, clear, and public rules, which, applied by the Judges, serve to protect the rights of the persons. The right to legal certainty is not duly guaranteed in the regulation of the declaration of insolvency since the General Organic Code of Proceedings does not contain a specific regulation referring to the procedure in which the debtor who fails to comply with its obligations will be declared insolvent, constituting a void that affects the rights of the creditors since there is no judicial decision that concretely establishes the state of insolvency of the debtor, and that may constitute a sufficient element for a bankruptcy proceeding. The aforementioned problems are addressed in this paper, which aims to ensure that the declaration of insolvency follows a due process that, while respecting the rights of debtors, also guarantees the rights of creditors to recover their claims in an insolvency proceeding following the constitutional and legal provisions in force.