The responsibility of persons causing debtor's insolvency in the bill on pre-insolvency and insolvency proceedings

• Author: Simona Petrina Gavrila
• Position: Faculty of Legal, Political and Social, Department of Legal Sciences 'Dunarea de Jos' University, Galati, Romania
• Pages: 47-53

AGORA International Journal of Juridical Sciences, www.juridicaljournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 1 (2014), pp. 47-53

47

THE RESPONSIBILITY OF PERSONS CAUSING DEBTOR’S

INSOLVENCY IN THE BILL ON PRE-INSOLVENCY AND

INSOLVENCY PROCEEDINGS

S. P. Gavril

Simona Petrina Gavril

Faculty of Legal, Political and Social, Department of Legal Sciences

“Dunrea de Jos” University, Galai, Romania

*Correspondence: Simona Petrina Gavril, “Dunrea de Jos” University, 47 Domneasc St .,

Galai, Romania

E-mail: gavrilasimonapetrina@yahoo.com

Abstract

Insolvency is the state of the debtor’s patrimony characterized by insufficient

monetary funds available for the payment of exig ible debts. It may be the consequence of

unfavourable economic circumstances, but also the result of managerial deficiencies of even

fraud.

If insolvency is caused by the gross incompetence or the fraud of the debto r’s board of

directors, then the syndic judge, by means of the special mechanism created in the insolvency

proceedings, i.e. the joint responsibility action, may include t he responsibility o f the d ebtor’s

managers (if the debtor is a legal person) in covering the debtor’s liabilities. From a

psychological point of view, such a menacing perspective may bring about a certain control of

the managerial activity, a certain caution of a bonus pater familias in managing the debtor’s

affairs1.

Keywords: Insolvency, imposition of responsibility, managing board, Bill on Pre-

insolvency and Insolvency Proceedings

1. Regulations of the responsibility of the managing authorities

The core of the matter is to be found in Chapter IV of Law no. 85/2006 art.138- 142.

The bill on the pre-insolvency a nd insolvency proceedings refers to this matter in Title II,

Section VIII, articles 169 – 173. The future law does not essentially alter the lawmaker’s

conception on this institution, but it does amend certain issues occurring in practice. The

present paper does not aim at an exhaustive analysis of the institution of the responsibility

pertaining to the managing board of the debtor as legal person, but at underlining the

differences between the present regulations and the future law.

First, the position of the dispositions regulating the responsibility suit is worth

mentioning. Both in the text of Law no. 64/1995, and the text of Law no. 85/2006, the chapter

devoted to the responsibility of the debtor’s managing board is situated immediately a fter the

section regulating the termination of the proceedings. This arrangement has given rise to a

diversity of precedents. Certain judges identified a legal reason to tackle this issue after

closing the proceedings2, ot hers gave a decision before closing the proceedings, and some

other magistrates who, although notified before t he closing proceedings, decided to separately

record and decide on the case, suspending proceedings until the final solution3.

1 Piperea, Ghe., Insolvena: legea, regulile, realitatea, Wolters Kluwer, Bucharest, 2008, p. 727.

2 Sentence no. 61 of 9 January 2005 of the Sibiu Court, quoted by Turcu, I., Legea procedurii insolvenei,

comentariu pe articole, 4th edition, C.H.Beck Publishing House, Bucharest, 2012, p. 654.

3 Sent. No. 410 of 23 April 2005 of the Botoşani Court, quoted by Turcu, I., Legea … op. cit., p. 654.