Examinando por Materia "Encargo fiduciario"

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    Viabilidad de la fiducia mercantil ante la apertura de procesos concursales cuyo titular sea el constituyente
    (Universidad EAFIT, 2021) Rendón Correa, Ana María; Prieto Quintero, Eugenio David Andrés
    ¿What legal consequences does an eventual bankruptcy process have for a Trust Agreement; specifically, for the assets convey by the settlor for the benefit of a beneficiary and/or creditor?, ¿should the commercial trust agreement continue its performance and execution or, conversely, as the “Superintendencia de Sociedades” and Law 1116 of 2006 have proposed, the contract effects should be suspended and the assets return to the debtor's equity and become part of the assets on which the bankruptcy process would be carried out? Trusts are a very important and widely-used feature of modern law, due to the current dynamism of business and the advantages of trusts in terms of securitization, flexibility and agility that offers to the parties, as opposed to the traditional alternatives to ensure financial and commercial transactions such as pledges or mortgages. The issue addressed in this document interface different entities and regulations, because there is no clarity of the effects of the trust agreement and the interest pursued by both the settlor and the creditor or beneficiary no mater it’s qualifications. The purpose of the paper is to analyze the regulations, jurisprudence and doctrine relevant to the trust agreement and the effects that the parties seek, the functionality in the field of business and the current legal context; as well as the impact of the application of some concepts issued by the local authorities, which state that before the settlement of a bankruptcy process of the settlor the right of a beneficiary or secured creditor in a trust agreement will be the same as that of the pledgee or the mortgage creditor (depending on the nature of the trust property), without analyzing in depth the characteristics of each legal feature and the implications of affirming that they will be treated in the same way when their nature is different.