What can a creditor do in the incidental proceeding for classification of an insolvency proceeding? Is the classification of “fortuitous” by the receiver or court auditor binding upon the judge?

Abstract

Regarding the reporting creditor in an incidental proceeding for classification, the position of national courts has been restrictive, limiting such creditor’s participation to simply reporting the relevant facts for classifying the insolvency as “guilty”.
The purpose of this paper is to analyze the role of the creditor within the framework of the incidental process for classification of an insolvency proceeding in the light of the pro actione principles and the control of conventionality. It will also examine the impact of the repeal of article 198, final paragraph and article 199 of Law No. 18.387, by article 652 of Law No. 19.355