Provincial hearing of Barcelona, Sentence 5 of February 2017
Newspaper the Law, Number 9395, Section the Sentence of the day, 11 of April of 2019, Publishing Wolters Kluwer
Interpretation of articles 607 and 608 of the LEC. Inclusion of the totality of the pension of the insolvent debtor within the active mass of the contest.
The plaintiff, mother of the son of the insolvent debtor, opposes the surrender of the accounts formulated by the competing administrator by not to have phelp foods of the smaller son and, on the contrary, to have made payment to the insolvent debtor of determined sum for foods.
The sentence of first instance rejected the demand and approved the accounts of the competing administrator.
The competing administrator maintains that the money given to the insolvent debtor corresponded to the unattachable part of the pension that, therefore, did not comprise of the active mass.
Art. 47,1 of the Competing Law (LAW 1181/2003) establishes the right of the descendants to obtain foods with respect to the active mass, credit that of being subsequent to the contest declaration has the consideration of credit against the mass (Art. 84.2.4 LC). However, the goods that consideration of unattachable does not have, according to arranged in the Art. the 76,1 and 2 LC only comprise of the mass.
To this end, that is to say, to pay foods of the descendants submissive the parental authority of the insolvent debtor, the Provincial Hearing understands that the totality of the pension must be included, since according to the Art. 608 LEC (LAW 58/2000), the proportional inembargabilidad established in the Art. 607 LEC (LAW 58/2000) are not applicable when it is come by execution of sentence that condemns to the food payment in the conditions that this rule establishes. Therefore, in these cases, the totality of the pension comprises of the active mass.
Nevertheless, considering the complexity of the question, the Hearing concludes that the decision of the competing administration to refund the insolvent debtor leaves from the obstructed pension not to satisfy its own foods is perfectly reasonable in these circumstances, reason why cannot oppose the accounts presented for that reason.
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