Jurisprudential aspects regarding the action in annulment of the debtor's patrimonial transfers, the debtor being in insolvency procedure

• Author: Angela Miff
• Position: Faculty of Economics and Business Administration, 'Babes Bolyai' University
• Pages: 24-48

Jurisprudential aspects regarding the action in annulment

of the debtor’s patrimonial transfers, the debtor being in insolvency

procedure

Lecturer Angela MIFF

1

Abstract

The study aims to present relevant aspec ts from the jurisprudential solutions of t he

High Court of Cassation and Justice in matters of the action in annulment of the

patrimonial transfers of the debtor in insolvency procedure and of other judicial actions

introduced by the procedure bodies or, by case, the pa rticipants to the procedure who are

enabled to use the mea sures prescribed by the law for the purpose of restoring the debtor’s

patrimony. The jurisprudential solutions adopted under the incidence of the former Law

no.85/2006 on the insolvency procedure represent, in present, under diverse aspec ts,

elements of continuity with the principles and rules established by the new law in this

matter. Law no.85/2014 on the prevention insolvency procedures and of insolvency

establishes the legal frame for the exertion of the measures having as purpose the

restoration, in the debtor’s patrimony, of certain assets, transferred by the debtor to the

fraud of the creditors’ interests, or of their value, in the scope of covering the passive part

to satisfy the creditors’ interests. The new law continu es the tradition of the former

regulations in this matter but, also, brings some novelty elements such as the decrease or,

in some cases, the increase of th e duration of certain terms that the exertion of the

mentioned judicial actions or their object refer to or the completion of the category of the

persons entitled to introduce the mentioned judicial actions with the creditor who holds

more than 50% of the value of the claims enlisted in the amount of claims.

Keywords: insolvency, debtor, cred itor, bankruptcy, judicial reorganisation,

general procedure, simplified procedure, judicial action, action in annulment, judicial

administrator, judicial liquidator.

JEL Classification: K11, K22

1. Introductory considerations

The insolvency procedures within the two forms – the judicial

reorganisation and bankruptcy – in both regimes, general and simplified, design the

juridical – institutional frame in which the specific operations and activities are

performed in the scope of the procedure, as mentioned by the law: instituting a

collective procedure for covering the passive of the debtor’s patrimony by granting

to him, when it is possible, the chance of recovery of business.

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1

Angela Miff - Faculty of Economics and Business Administration, „Babeş-Bolyai” University,

Cluj-Napoca, angela.miff@econ.ubbcluj.ro.

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Art.2 of Law no.85/2014 having correspo ndent in the former art.2 of Law no.85/2006, repealed in

present.

Juridical Tribune Volume 5, Issue 1, June 2015

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The application sphere of the insolvency procedures legislated by Law no.

85/2014 on the prevention of the insolvency procedures and of insolvency

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includes the professionals, as these are defined by art. 3 parg. 2 of the Civil Code,

republished in 2011,

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including the autonomous state-owned companies, exception

being the free-lancers,

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as well as those under the incidence of special provisions

for the case of the insolvency regime.

In any of the methods or the regimes of the insolvency procedures, the

subject is designated with the name ”debtor”, and may be a physical person or a

legal person, following the distinctions made by the law.

The law makes a distinction between the debtors in insolvency who are

under the incidence of the insolvency procedures (judicial reorgnisation or

bankruptcy, the general procedure or the simplified procedure), on one hand, and

the debtors in state of financial dificulty who are under the incidence of the

insolvency prevention procedures (the ad-hoc mandate, the preventive concordat),

on the other hand.

The insolvency, as it is mentioned by art. 5 parg. 29 of the law, designates

”that state of t he debtor’s patrimony characterised by the insufficient available

funds for the payment of the valid, liquid and enforceable debts, as followes: a) the

debtor’s insolvency is presumed when, after 60 days from the due date, did not pay

the debt to the creditor; the presumption is relative; b) the insolvency is iminent

when it is proved that the debtor will not be able to pay at the due date the

aknowledged exigible debts, with the available sums of money at the due date”.

Thus, the debtors in a state of presumed insolvency or a state of iminent

insolvency, by case, will be submitted to the judicial reorganization (the debtors

legal person) or the bankruptcy, respectively, to the general regime or the

simplified regime.

As a consequence of the opening the insolvency procedure against the

debtor, the capitalization of the claims against him may be done only within the

common and concurrent procedure regulated by the law on the insolvency

procedure, as it was stated, for instance, in the decision no.2939 of 17 October

2008 given by the commercial division of the High Court of Cassation and Justice:

”as a consequence of the opening of the insolvency procedure against the debtor

SC S. SA joint stock company, the capitalization of the claims against the debtor

may be done only within this concurrent and common procedure, ...”.

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3

Law no.85/2014 was published in the Official Gazette of Romania, Part I, no.466/25.06.2014.

4

The new Civil Code was republished [1] in the Official Gazette of Romania, Part I,

no. 505/15.07.2011.

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In the sense of the law of the insolvency procedure, the liberal profession is defined, by art. 5

parg.52, as the profession performed as a result of a professional qualification, with a professional

title, on personal liability and independently, implicating intellectual activities on behalf of the

client and serving the public interest. These professions are characterized by the existence o f an

ethical code, the continuous professional formation and confidentiality of the relation with the

client.

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The High Court of Cassation and Justice, commercial division, decision no.2939/17.10.2008,

www.scj.ro, last access on May 1, 2015.