Abuso del derecho y fraude a la Ley en procesos de insolvencia empresarial en Colombia: una mirada comparativa con el régimen concursal Brasileño

Abstract

Contemporary business insolvency regimes have been characterized by the search for the recovery of the company as the engine of local economies. With the implementation of liberal paradigms in the conception of nation states, the new Latin American constitutionalism have opted for a regime of economic openness, and as a standard of this, freedom of enterprise. Reducing state intervention in economic aspects, allowing the free fluctuation of markets. As a result of the changing fluctuations of the markets, companies are subject to innumerable variables that can affect their participation in the market at certain times, and in this way put hundreds of jobs at risk, affecting the tax revenues of the State, and negatively affecting national economic policy. It is for this reason that corporate bankruptcy has become a matter of relevance for the executive, as well as a key issue to be addressed in the agendas of state interventionism in economic affairs. For this reason, entrepreneurs have been provided with tools to solve times of crisis, and with them recover the direction of the company, endowing them with prerogatives aimed at overcoming difficulties, however, and taking advantage of such a situation, some debtors of bad faith, abusing their right and executing fraudulent maneuvers to the detriment of the interests of their creditors, they have found in insolvency regimes a door to the misrepresentation of the norm in search of their own benefit. It is in this scenario that it is intended to analyze the conduct carried out by debtors in bad faith, to the detriment of their creditors during the processing of business insolvency processes, so that a comparative analysis between Colombian and Brazilian legislation is allowed.