Insolvency procedure. Interim measures available to the syndic judge between the filing of the application and the moment of its settlement
| Author | Codrut-Nicolae Savu |
| Position | Ph. D. Assistant Lecturer, Univ. Transilvania from Brasov, Faculty of Law |
| Pages | 170-174 |
170 CODRUŢ-NICOLAE SAVU
INSOLVENCY PROCEDURE. INTERIM MEASURES
AVAILABLE TO THE SYNDIC JUDGE BETWEEN THE FILING
OF THE APPLICATION AND THE MOMENT OF ITS
SETTLEMENT
Ph. D. Assistant Lecturer Codru-Nicolae SAVU
Univ. Transilvania from Braşov, Faculty of Law
Abstract
From the moment when the debtor and / or the creditors registered with the court the
applications for opening the insolvency proceedings, the syndic judge is entrusted with their
resolution, which essentially consists of the opening or not of the insolvency procedure.
With novelty, Law no. 85/2014 on Insolvency and Insolvency Prevention Procedures regulated
for both the debtor and the creditors the possibility that, after the filing of the application and until
the date of its settlement, it would formulate requests for a presidential ordinance aimed either at the
temporary suspension of individual enforcement measures against the debtor or the suspension of
assets or property rights from the debtor's assets or the imposition of measures to preserve them.
Keywords: Private Law, Insolvency Procedure
1. The request for a presidential ordinance made by the debtor
In particular, in the order of the law, the law confers an active procedural
capacity in formulating a request for a presidential ordinance to the debtor,
meaning that art. 66 par. (11) of the Law no. 85/2014 states that "after the filing of
the request for the opening of proceedings in urgent cases that would jeopardize
the assets of the debtor, the syndic judge may, in the council chamber and without
summoning the parties, have the urgent need for the temporary suspension of any
enforcement proceedings enforcement of the debtor's assets until judgment has
been given on that claim. "
From the legal provisions mentioned, we can draw the following observations,
namely:
- Sedes materiae regarding the request for a presidential ordinance is Law no.
85/2014, which is supplemented by the provisions of the Civil Procedure Code
(Article 996-1001) if they are not contrary to the insolvency law. Thus, from the
point of view of the material and territorial competence, art. 66 par. (11) of L.
nr. 85/2014 does not derogate from the provisions of art. 997 Civil Procedure Code
which provides that the request for a presidential ordinance shall be submitted to
the competent court to rule at first instance on the substance of the law.
From the point of view of the settlement procedure, we appreciate that art. 66
par. (11) of L. nr. 85/2014 derogates from art. 998 par. (2) sentence I of the Civil
Law Review vol. VII, special issue, December 2017, p. 170-174
Insolency procedure. Interim measures available to the syndic judge... 171
Procedure Code, whose interpretation per a contrario shows that, as a rule, the
ordinance is given with the parties quoting, while art. 66 par. (11) expressly
provides that the ordinance is judged in the council chamber without the parties
being summoned.
At the same time, considering the principle of the celerity of insolvency
proceedings, we consider that the provisions of art. 66 par. (11) of L. nr. 85/2014
shall be completed with the second sentence of Art. 998 par. (2) Civil Procedure
Code according to which "in case of special urgency, the ordinance may be given
on the very same day.
Finally, we appreciate that art. 66 par. (11) shall be supplemented with the
provisions of art. 999 par. (1) The Civil Procedure Code, in the sense that the
Ordinance is subject only to the appeal, within 5 days of communication because it
was given without the parties' summons.
- The request for a presidential ordinance may be made by the debtor, at the
earliest, after the registration of the application for opening the insolvency
procedure. Probably, given that a separate dossier is to be considered for the
purpose of hearing the request for a presidential ordinance, the legislature
expressly stated expressis verbis that it could be formulated "after filing the request
for the opening of proceedings". De lege ferenda, we appreciate that, for reasons of
the celerity of the proceedings, as well as for the fact that the request for a
presidential ordinance is settled by the same syndic judge (vested with the hearing
of the application for opening the insolvency proceedings), in the council chamber
and without summoning the parties, in order to better manage the case, it is
necessary to amend Art. 66 par. (11) to provide that "upon the lodging of the
application for admission or subsequently, pending the judgment on that request,
in urgent cases which would jeopardize the assets of the debtor, the syndic judge
may have an urgent the council chamber and without summoning the parties, the
provisional suspension of any enforcement proceedings for the debtor's assets. "
- The provisional nature of the measure suspending forced execution on the
debtor's assets is justified, both by the timing of the settlement of the application
and by the fact that, if the application is admissible and the procedure is opened,
irrespective of its general form or simplified, the enforcement of enforcement
measures is ope legis. In this respect, according to art. 75 par. (1) of the Law no.
85/2014, "from the date of the opening of the proceedings, the enforcement
measures for the execution of debts on the debtor's assets are legally suspended
(...)."
If the request for a presidential ordinance was upheld until the application is
upheld, if the latter is rejected and the insolvency proceedings are not opened, the
suspension measure ordered by the presidential decree ceases and the forced
execution started again.
In conclusion, the measure of temporary suspension of forced execution
ordered by the syndic judge until the debtor's application has been dealt with is, in
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the main, justified on the ground that, by the application, the debtor seeks to be
placed under the protection of the court, the legislator adopting a such a measure
and in the spirit of the collective nature of the procedure as distinct from the
individual character of the forced execution.
2. The request for a presidential ordinance made by the creditor
Law no. 85/2014 confers an active procedural capacity in formulating a
request for a presidential ordinance and the creditor, in which it provided in the
art. 70 par. (5) and (6), that a creditor who has filed an application for the opening
the insolvency proceedings in urgent cases, until the date of the application, may
request the syndic judge to issue a provisional order ordering temporary measures
for the purpose of suspension operations of alienation of important assets or
property rights from the debtor's estate, under the sanction of nullity, as well as
measures for the preservation of these assets. Judgment of the request for a
presidential ordinance is done urgently, in the council chamber, without the
summons of the creditor who made the request and of the debtor. The measure
will be approved temporarily until the date of the settlement of the request for the
opening of the procedure. The creditor may be required to pay a bail of up to 10%
of the amount of the claim claimed, which may be used by the debtor to cover the
damages incurred in the rejection of the request to open the insolvency
proceedings.
Similarly to the request for a presidential ordinance made by the debtor, and in
the case of the creditor, certain observations are required, some of which are
common to those examined at the debtor, namely:
- Sedes materiae regarding the creditor's request for a presidential ordinance is,
as in the case of the debtor, Law no. 85/2014, which is supplemented by the
provisions of the Civil Procedure Code (Article 996-1001) if they are not contrary to
the insolvency law. Thus, in this case, from the point of view of the material and
territorial competence, art. 70 par. (5) does not derogate from the provisions of art.
997 Civil Procedure Code which provides that the request for a presidential order
shall be submitted to the competent court to rule at first instance on the substance
of the law.
From the point of view of the settlement procedure, we appreciate that art. 70
par. (6) derogates from art. 998 par. (2) sentence I of the Civil Procedure Code,
whose interpretation per a contrario shows that the ordinance is usually quoted by
the parties, whereas the text of the insolvency law expressly provides that the
ordinance is judged in the council chamber without the summons of the creditor
who filed the application, nor the debtor. Also in this case, for reasons of the
celerity of the insolvency proceedings, we appreciate that art. 70 par. (6) shall be
completed with the second sentence of Art. 998 par. (2) Civil Procedure Code
according to which "in case of special urgency, the ordinance may be given on the
very same day.
Insolency procedure. Interim measures available to the syndic judge... 173
Finally, the provisions of Art. 999 par. (1) The Civil Procedure Code, in the
sense that the Ordinance is subject only to the appeal, within 5 days of
communication because it was given without the parties' summons.
- As in the case of the debtor, the request for a presidential ordicenan may be
made by the creditor only if he has registered an application for opening the
insolvency proceedings and, without repeating the arguments set out in the
analysis of the debtor's presidential ordinance, in which case we consider that de
lege ferenda, it is necessary to modify art. 70 par. (5) in the sense of introducing the
phrase "with the lodging of the application for admission or subsequently, pending
the judgment on that application ...
- For the measure of temporary suspension of operations of alienation of
property or economic rights of the debtor to be effective and to effect in order to
preserve the debtor's property, the legislature established absolute nullity of these
operations would be done after admission application of the Presidential
Ordinance.
- the provisional nature of the measure suspending operations alienation of
property or property rights of the debtor is justified both until the settlement of the
application for opening the insolvency proceedings and in that, if permission is
given notice of the creditor and the procedure, regardless of its general or
simplified form, is open to all acts, operations and payments made by the debtor
after the opening of the procedure, are null and void, except for those which are
the subject of the current activities or those authorized by the syndic judge or
approved by the administrator, as it results from art. 84 par. (1) of the Law no.
85/2014.
If the request for injunctive relief was granted pending the outcome of the
application, if the latter is rejected, and thus not open insolvency proceedings,
suspension measure ordered by presidential ordinance ceased, meaning that
transactions alienation of assets or rights the patrimonial can be concluded or
completed without being affected by the vice invalidity.
- The provisions of art. 70 par. (6), the third sentence allows the syndic judge to
oblige the creditor to pay a bail of up to 10% of the amount of the claim claimed,
which may be used by the debtor to cover the damages incurred in the rejection of
the application. We emphasize that we must not confuse the bail which the syndic
judge can impose on the creditor in the proceedings of the presidential ordinance,
with the bail that the same syndic judge can impose on the creditor in the
settlement of the application for opening the insolvency proceedings, the latter
being regulated separately in the art. 72 par. (1) of the law and, although it is still
up to 10%, has a legal ceiling of 40,000 lei.
A problem to which we intend to respond is that of the legal regime of
alienation by the debtor once the provisional suspension has been ordered by
admitting the request for a presidential ordinance, and in the context in which the
creditor has been rejected, meaning that the insolvency procedure has not been
opened.
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The immediate response to this issue is provided by the provisions of Art. 70
par. (5) which expressly establishes the sanction of the absolute nullity of acts and
transactions entered into by the debtor, in the context in which they were
suspended by the Presidential Ordinance. As such, despite the fact that after the
conclusion of the acts and operations temporarily suspended, the creditor's
application is rejected, the sanction of absolute nullity has already intervened and
according to the common law in the matter - art. 1247 par. (4) Civil Code, - "the
contract of absolute nullity is not susceptible to confirmation except in the cases
provided for by law" However, the law of the insolvency procedure did not
provide for a case of absolute nullity in the context presented by us, those
operations would remain null. However, at a pragmatic level, we must not omit
that although we are in the presence of absolute express nullity that produces the
effects of the law, the acts and operations affected by it enjoy the relative
presumption of existence and legality, as long as the sanction of nullity was not
effectively established by court order. But "the sword of Damocles" is above these
acts and operations that could at any time (absolute nullity being imprescriptible)
be abolished by any person who could justify an interest.
However, the mediated answer that we will detail clarifies this issue because,
in my opinion, the sanction of absolute nullity ceases with the measure of the
provisional suspension of the acts and operations affected by this case. To that end,
the rejection of the application by the creditor terminates the operatives and the
effects generated by the presidential ordinance admitted prior to the settlement of
the fund of law (the request to open the procedure). Thus, art. 996 par. (2) sentence
I of the Civil Procedure Code states that "the ordinance is provisional ..." and
according to the second sentence, "(...) the measures ordered shall take effect until
the dispute has been settled on the merits." Also, according to art. 1001 par. (2)
Civil Procedure Code, "the Presidential Ordinance does not have the authority to
rule on the claim on the merits of the law.
In view of these aspects, in my opinion, the provisional character of the
presidential decree also confers the sanction of invalidity on the same provisional
character, a sanction which, by virtue of the aforementioned legal provisions,
ceases.
We conclude the analysis of this issue, thus de lege ferenda we propose,
necessary not only for practical reasons, but also for the possibility of any
discussions such as those mentioned above, meaning that the lawmaker of the
insolvency procedure, according to the provisions of art. 1247 par. (4) Civil Code,
to introduce in the art. 70 a particular case of confirmation / rectification of
absolute nullity in the hypothesis that was the object of our problem.
