Methodological features regarding the investigation of bankruptcy crime

• Author: Petrica-Mihail Marcoci - Diana-Camelia Boroi
• Position: Assistant Professor Ph.D. 'Alexandru Ioan Cuza' Police Academy, Bucharest - M.Sc. Student
• Pages: 192-196

METHODOLOGICAL FEATURES REGARDING THE INVESTIGATION O F BANKRUPTCY

CRIME

Petric-Mihail Marcoci

Diana-Camelia Boroi

Abstract

In a period of acute financia l and economic crisis, a s the one we ar e crossing right no w, bankruptcy is

one of the most common cr imes in ter ms of its committing poten tial. Beyond strict legal issues, sta te

organ izations, whether they ar e the one of administrative or judicia l control, they must adjust the mechanisms of

control a nd discovery of facts which might lead or generate bankruptcy actions in order to ensure the credibility

and sa nitation of the economic environment and to pr event manifestations of fra udulent behaviors in the field of

flows payment resulting from lawful commercial acts.

Keywords: assets, insolvency, insolvent, bankruptcy, non-existent debts, r ecords forging.

Introduction

Law 85/2006 defines insolvency as that condition of the debtor's pa trimony tha t is chara cterized by the

insufficiency of funds available for paying cer tain, liq uid and contingent debt. So, the insolvency procedure

applies to the debto r that can’t pay his outstanding debts because of the lack of liquidity. Only the deb tor’s debts

that consist in money are circumscribed in this ar ea. Therefore, the procedure will not apply if the debtor,

although he has liquidity, does not pa y his outstanding debts. In this case, the cr editors must follow the

enforcement procedure available under the common law. The court should consider the real ca use of the unpaid

debts by the debtor.

The delimitation between insolvency and the debtor’s inso lvency must be made also in relation to the

debtor’s refusal of payment:

a) insolvency and the debtor's insolve ncy. Insolvenc y is different from insolvent because, while

insolvency is that condition of the debtor's patri mony which expresses the debtor’s inability to pay its

outstanding debts due to the lack of liquidity

1, insolvent is a state of financial imbalance of the debtor's

patrimony, in which the liability value is greater than the value of assets. It is possible that the value of the assets

far exceed the value of liabilities, and yet, due to the lack of liquidity, the debtor is unable to pay its o utstanding

debts, the debtor being insolvent, although its patrimony is solvent.

b) The insolvency and the debtor's refusal of payment. Insolvency can not be confused with the simple

non-payment of the outstanding debts. T he debtor is not insolvent if he refuses to pay b ecause of certain

exceptions that he thinks they are based on good faith.

The crime of bankruptcy is defined by law in terms of the following2:

a) forge, steal or destroy the debtor’s records or hide a part of its property assets;

b) show non-existent debts or present undue amounts in the debtor’s records, any other act or in the

financial statement, each of these facts being committed in the creditors fraud;

c) alienate, in the creditors fraud, in case of the debtor’s insolvency, some of the assets.

The social value that has sp ecial protection by incriminati ng this type of fact is mainly represented by

the social relations regarding t he normal commercial behavior in contractual relations that may suffer distortions

when the debtor of a financial obligation conceals or disposes parts of its assets that can be used to settle, in par t,

the debts owed to the creditors, as in the meaning of Law no. 85/2006.

Under art. 3 point 5 of the quoted normative act, the debtor is the individual or the lega l entity of private

law, which is part of one of the categories envisaged by art. 1 of La w no. 85/2006, whose patrimony is insolvent

in the sense described above.

Depending on the normative way in which the offense is presented, the material object of the

bankruptcy is represented, depending on case, by the debtor’s re cords, the debtor's books, other documents and

as well as by financial statements or some of the assets of any kind.

The active subj ect of the bankruptcy crime is not expressly qualified by the criminality rule. However,

most of the times, the subject is the debtor itself. The participation is possible in all its forms.

In connection with the offense analyzed , we must admit that if the conditions set b y the law are

fulfilled, the legal entity can be held by the criminal law for committing it. In other words, if the legal entity:

a) is legally constituted;

 Assistant Professor Ph.D. "Alexandru Ioan Cuza" Police Academy, Bucharest. e-mail: ijjs@univagora.ro.

 M.Sc. Student, e-mail:ijjs@univagora.ro.

1 See art. 3, Par. 1 of Law no. 85/2006.

2 art. 143 Par. 2 of Law no. 85/2006.