Procedural Issues on Patrimony Liability in Matters of Insolvency

Author:Alexandrina Zaharia, Adriana Pascan
Position:Danubius University of Galati, Law Faculty - Galati Court
Pages:404-407
SUMMARY

The Law of insolvency procedure expressly provided the acts for which it can be engaged the members’ management responsibility of the debtor's liabilities, legal person, reached in insolvency state. However, it established the entitled and the term where the application can be forwarded and the conditions to be fulfilled for forwarding the patrimonial responsibility. Although the legislator in the succession of texts has... (see full summary)

 
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Procedural issues on patrimony liability
in matters of insolvency
Alexandrina
Z
a
h
a
r
ia1
Adriana
P
a
s
ca
n
2
1Danubius University of Galati, Law Faculty,
a
lex
andr
i
nazahar
i
a@un
iv
-danub
i
us.ro
2Galati
Cour
t
Abstract: The Law of insolvency procedure expressly provided the acts for which it can be engaged the
members’ management responsibility of the debtor's liabilities, legal person, reached in insolvency state.
However, it established the entitled and the term where the application can be forwarded and the
conditions to be fulfilled for forwarding the patrimonial responsibility. Although the legislator in the
succession of texts has first
r
e
gu
late
d
closing the insolvency proceedings and forwarding the liability; such an
application may only conducted during insolvency proceedings, and obviously, in legal deadline. In case
when the procedure ended, but not have passed such an application, the interested litigant parties have the
way the appeal against the sentence which insolvency proceedings closed. If, however, the application is
made in training patrimonial responsibility, following the closure of t
h
e
pro
ce
dur
e
,
it will be rejected as
tardy. To be simulative, the responsibility of management members of the debtor, the legal person or any
person that caused the insolvency state by committing one or more acts expressly provided and limited by
law, it must
fu
l
f
il c
umu
lati
v
el
y
the conditions foreseen for civil liability. During the course of the
proceedings the creditors are obliged to pursue compliance with the laws relating to the designation of the
creditor and the performance of the incumbent so as to make application to the training period in property
liability laws. Regarding the onslaught state, this law pronounced b yth e court decisions can be challenged by
appeal. As the law on insolvency procedure is completed by the Code of Civil Procedure, to the extent of
compatibility, the motives for appeal are those set out in art. 304 Code of Civil Procedure. Judicial
control is done both on the grounds of appeal raised by the recurrent and ex officio in all aspects, because
the pronounced decisions in first instance on this subject, according to the law, can not be challenged by
appeal.
Keywords: insolvency proceedings, property liability, judicial administrator, j
ud
icial li
qu
i
d
at
or,
debtor's
liabilities
The insolvency procedure, regulated by Law no. 85/2006 on the insolvency and bankruptcy procedure
can be opened only through an addressed request, by the ones who the law recognizes the active
procedural quality (debtors, creditors as well as any other person or institutions stipulated by law),
the tribunal
whos
e j
ur
i
sd
icti
on
covers the debtor’s seat, according to the commerce register,
agricultural societies register or the register of associations and foundations. The organs that apply this
law are the judicial instances, the judge-syndic, the judicial administrator and the judicial
liquidator. Like in any other fields, in the procedure of insolvency the legislator instituted the
involvement of liability of the members of administration of the debtor, legal person, when they
caused the insolvency statute of the debtor. The material competence in a
pp
l
y
i
ng
t
h
e liability stated
in article 138 of the abovementioned law belongs to the judge-syndic. In our demarche, considering the
non unitary practice in applying the text of the article 138, I considered as being opportune to proceed
to the analysis of this text, in what concerns the titular holders of the request, what did the legislator
meant and how the judicial instances understood the application of these provisions.
For a better understanding of the issues presented, we will partly present the context on the article
138, according to which: (1) “At the request of the judicial administrator or the liquidator, the judge-
syndic can dispose that a part of the asset of the legal person, that is in a state ofinsolvency, will be
supported by the members of the supervision organs within the society, or the management, as well as any
other person that caused the insolvency state of the debtor, byone of the following acts: (a-f)
(1) The creditor’s committee can ask the judge-syndic to authorize it to act according to al.1, if the
judicial administrator or the liquidator omitted to indicate, in the report on the insolvency causes, the

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