Bibliographic citations
Castillo, G., Farfán, A. (2017). La utilidad práctica del artículo 18 inciso 2 de la ley general de procedimiento concursal en la afectación de bienes sujetos a concurso por el poder judicial en la ciudad del Cusco entre enero y diciembre del 2016. [Tesis, Universidad Andina del Cusco]. https://hdl.handle.net/20.500.12557/1913
Castillo, G., Farfán, A. La utilidad práctica del artículo 18 inciso 2 de la ley general de procedimiento concursal en la afectación de bienes sujetos a concurso por el poder judicial en la ciudad del Cusco entre enero y diciembre del 2016. [Tesis]. : Universidad Andina del Cusco; 2017. https://hdl.handle.net/20.500.12557/1913
@misc{renati/19659,
title = "La utilidad práctica del artículo 18 inciso 2 de la ley general de procedimiento concursal en la afectación de bienes sujetos a concurso por el poder judicial en la ciudad del Cusco entre enero y diciembre del 2016.",
author = "Farfán Yañez, Avner Jesús",
publisher = "Universidad Andina del Cusco",
year = "2017"
}
He characteristics of the LGSC are sufficient to protect the credit and equity of the company, not being necessary the permanence of the productive unit of the company, because the purpose is to create an environment suitable for negotiation that is entirely guided by the board of creditors, the decisions taken by the board are not negotiable giving them full power over the company, to choose between the liquidation or restructuring, the first is the most given in the context of the insolvency system, thus ensuring the effective satisfaction of the credits, protected by the principles of universality, collectivity and proportionality; we can observe that these three principles govern in a contest making the bankruptcy and the unenforceability of the obligations within the present law affirm the protection of the credit, have a paternalistic act towards the creditors and be a pro-liquidation law, not having the need to insert more measures for the creditor to ensure their collective interests, the aforementioned now brings us a business analysis on the conflict of interest, because putting the rule in the possibility of requesting precautionary measures creates a conflict of interests when in the exercise of power to urge such measures comes a counterposition between the self-interest and those of the mass of creditors transgressing the objectives, purpose and principles of the LGSC. In this scheme, according to what is established in the patrimonial protection framework, as indicated in article 18 in relation to precautionary measures, it says: “the authority thatknows the judicial, arbitration, coercive or extrajudicial sale proceedings followed against the debtor, do not order, under responsibility, any precautionary measure that affects your assets and if they are already ordered they will refrain from locking them. In this way, it is possible to execute the obligations submitted to the bankruptcy, since all the assets of the debtor can be counted; on the other hand, in paragraph 2, it is mentioned: that said abstention does not cover the measures that can be registered, nor any other measure that does not mean the dispossession of the debtor's assets or that by their nature does not affect the assets of the business, these measures they would be useless, then, so that the beneficiaries of the same, look for the direct collection of their credits, will not be possible in any case the forced execution of the patrimony of the debtor submitted to contest; in the event that such an execution has occurred, it will be liable to be declared ineffective by the judicial power, the latter would go against effective jurisdictional protection and would contravene the purpose of the precautionary measures. This investigation includes a progressive, but specific development of the stages that give rise to the insolvency proceedings and their eventual transgression in the event of precautionary measures being taken in the courts, the latter if they met their purpose would affect the spirit of the LGSC, for this reason a bibliographic compilation; regulatory revision in both Peruvian and foreign legislation of the issues addressed herein; study of bankruptcy proceedings, administrative procedure, precautionary measures, judicial process, effective jurisdictional protection; methodological aspects of the investigation; until the processing of the data obtained in the judiciary concerning the precautionary measures filed between January and December 2016, in which the results support ourresearch topic; elaboration of comparative tables, correlations and analysis of the results of the surveys that allow to integrate all the variables in a final qualitative research model There were 98 bankruptcy proceedings in all of Peru between January and December 2016, this is equivalent to our entire population; While 3 bankruptcy proceedings were conducted in Cusco between January and December 2016, this corresponds to our entire study sample, using effective, suitable and reliable information gathering methods; that allowed us to achieve the objectives of the investigation and to prove adequately that we were on the right track by asserting our position according to the results obtained and the surveys, maintaining a constant when interpreting the consolidated interviews and the list of bankruptcy proceedings obtained between January - December 2016 in the city of Cusco, we can say that the rule is paternalistic with creditors, it is pro-liquidation and should be eliminated and / or modified paragraph 2 of Article 18 of the LGSC, then, it does not have the utility practice in the affectation of assets subject to competition. The aforementioned was useful to analyze the LGSC thoroughly and to be able, in future investigations, to contribute with more research topics so that in the aforementioned law there are no gaps, an economic analysis of the business right can be made, so that it does not look affected the patrimony of the debtor with precautionary measures that do not comply with its purpose framed in bankruptcy regulations and be able to respect one of the three objectives of the rule that is being violated, as is the permanence of the productive unitThe study sample indicates that precautionary measures are not used in judicial proceedings when there is a company involved in the competition, since the measures to protect the debtor's assets and the protection of the claim are framed within the LGSC and are more than enough to satisfy the creditor who is in the contest and is a suitable autosatisfactive way for the bankruptcy system, we say, because there is a long way to go before the norm to act correctly, perfectly and without gaps. The bankruptcy proceedings that are within the sample ratified the objective of the present investigation.
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