Although judicial decisions cannot be cataloged as legislative matter, we cannot fail to echo the 381/2019 Plenary Decision of the First Chamber of the Supreme Court, dated July 2 (Rapporteur Sancho Gargallo) regarding the exemption of unfulfilled liabilities (art. 178 bs LC), since, together with the character of authority that grants it to proceed from the Plenary, it interprets the aforementioned precept in a manner contrary to its literacy, but with adjustment to its purpose.
In fact, apart from previously pointing out (i) that the debtor’s good faith who wishes to benefit from the benefit of the exemption is defined by art. 178 bis 3, and not by article 7.1 of the Civil Code, and (ii) that the payment plan provided for in art. 178 bis 6 can be presented in the answer to the incidental lawsuit filed by the creditor that opposes the granting of the benefit, the decision of the Court that reaches a singular significance is:
1º The extension of the benefit of the exemption of dissatisfied liabilities – in the form of payment plan (art. 178 bis 6 LC) – includes ordinary and subordinated public credit, and this despite the express exclusion of said credit from such benefit according to art. 178 bis 5 1st LC (“except credits of public law”); such reasoning is based on the fact that the benefit of the exemption – in the form of immediate payment (art. 178 bis 3 4th LC) – must constitute an obligatory interpretative reference for the objective scope of the exoneration in the payment plan modality; And if the former does not make distinctions and provides “full debt exemption” (except for the predictable and privileged), the same effects must be provided by the payment plan.
2º The payment of the forced public debt – the estate credit and the privileged one – is subject to the proposed payment plan, and this in spite of the express exclusion of such matter from the payment plan formulated in art. 178 bis 6 LC (“Regarding public law credits, the processing of applications for deferral or fractionation will be governed by the provisions of its specific regulations”), since the Court considers that the “administrative mechanisms for remission and deferment of payment are meaningless in a bankruptcy situation “,
In conclusion, in cases of exemption from dissatisfied liabilities – payment plan modality – (A) the ordinary and subordinated public credit is subject to full exemption, and (B) the estate credit and privileged public credit is subject to the provisions of the payment plan. payments, the latter having special significance, since, in accordance with art. 178 bis 8, even if the payment plan is not fully complied with, the Court may declare the definitive exemption of unsatisfied liabilities that would have been used to fulfill at least half of the income received during the five-year term.