Juridical Tribune Volume 5, Issue 1, June 2015
The application sphere of the insolvency procedures legislated by Law no.
85/2014 on the prevention of the insolvency procedures and of insolvency
includes the professionals, as these are defined by art. 3 parg. 2 of the Civil Code,
republished in 2011,
including the autonomous state-owned companies, exception
being the free-lancers,
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
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, ...”.
Law no.85/2014 was published in the Official Gazette of Romania, Part I, no.466/25.06.2014.
The new Civil Code was republished  in the Official Gazette of Romania, Part I,
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
The High Court of Cassation and Justice, commercial division, decision no.2939/17.10.2008,
www.scj.ro, last access on May 1, 2015.