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
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