Must the spouse of a sole trader declared insolvent be joined as a necessary party in an action under Article 647(1) of the Bulgarian Commerce Act?
According to the order of the Supreme Court of Cassation, Commercial Chamber, Second Division, in commercial case No. 1165/2018:
In reaching the judgment under appeal, the court found that the principal and alternative claims sought a declaration that three disposals of immovable property were ineffective against the insolvency creditors of sole trader V. M. T., trading as “T.-V. M.”, in insolvency, to the extent of one half of the rights transferred. The debtor had transferred the properties to the second defendant, “MIHAELA-AUTO” EOOD (in insolvency), whose sole owner and manager, M. V. T., was the daughter of V. M. T. The three properties had been acquired during the defendant sole trader’s marriage and were therefore marital community property. The court relied on point 12 of Supreme Court Plenary Resolution No. 2/1977, which gave binding guidance that in such circumstances both spouses must be joined as necessary parties and proceedings are inadmissible unless both are joined.
In the statement of grounds for admitting a cassation appeal, the appellant raised questions decisive for the outcome which may be summarised as follows: must the spouse of an insolvent sole trader be joined as a necessary co-defendant in proceedings under Article 647(1) of the Commerce Act, having regard to Article 614(2) of that Act and Interpretative Decision No. 5/2014 of the General Assembly of the Civil and Commercial Chambers of the Supreme Court of Cassation on the application of Article 135 of the Obligations and Contracts Act to disposals of immovable marital community property?
The question as framed was decisive in this case, since the appellate court based its ruling on its answer to that question.
THE COURT ORDERS:
GRANTS leave to appeal on points of law against judgment No. 9 of 8 January 2018 of the Plovdiv Court of Appeal in commercial appeal No. 590/17.
Under Article 649(6) of the Commerce Act, the state fee is not payable in advance.
The case shall be referred to the president of the Second Commercial Division of the Supreme Court of Cassation for scheduling in open court.
This order is final.