The development of a 'rescue culture'. Insolvency globalization

• Author: Ionel Didea - Diana Maria Ilie
• Position: Faculty of Economics and Law, University of Pitesti, Romania - Legal and Human Resources Department, University of Pitesti, Romania
• Pages: 1-16

AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs

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

No. 2 (2018), pp. 1-16

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THE DEVELOPMENT OF A “RESCUE CULTURE”. INSOLVENCY

GLOBALIZATION

I. DIDEA, D.-M. ILIE

Ionel DIDEA

Faculty of Economics and Law, University of Pitesti, Romania

Faculty of Law – Doctoral School

Titu Maiorescu University, Bucharest, Romania

*Correspondence: Ionel Didea, University of Pitesti, 1 Târgu din Vale Str.,

Pitești, Romania

E-mail: prof.didea@yahoo.com

Diana Maria ILIE, Candidate PhD.

Legal and Human Resources Department, University of Pitesti, Romania

Doctoral School – Field of Law

Titu Maiorescu University, Bucharest, Romania

*Correspondence: Diana Maria University of Pitesti, 1 Târgu din Vale Str.,

Pitești, Romania

E-mail: dianamaria.ilie@yahoo.com

ABSTRACT

We are heading towards a phenomenon of internationalization and globalization of

the substantiation of law, due to the fact that Romania is, inevitably, part of the process of

integration and reflection of its own identity in a European and global context. Ultimately,

law derives from observing the society and analysing its needs, passing through the filter of

equity the final legal form in order to ensure the completeness of law, and also the structural

coherence of society. Although the continental European legal culture is attached to the

“general will”, globalization managed to erase many of the symbolical boundaries between

the legal culture promoted by the Common-law, the one promoted by our system deeply

markedby the Romano-Germanic System, and also the legal system outlined by American

Realist trends, thus allowing the law to become the result of the self-adaptation of the society,

not just the creation of the State.

KEY WORDS: insolvency, globalization, rescue culture, reorganization,

interdisciplinarity, comparative law.

INTRODUCTION

Insolvency law managed to assert itself due to the legislative abundance which has

expanded remarkably in the past few years both at national, as well as at international level

(cross-border insolvency), due to the legislator’s constant concern for the modernization of

this field and the need toalign to the regulations prepared by bodies of the European Union,

and also by international bodies. We are currently talking about an expansion of the

insolvency phenomenon, through Law no. 151/2015

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on the insolvency of natural persons, and

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Originally, Law no. 151/2015 on the procedure of insolvency of natural persons, pub lished in the

Official Journal of Romania, Part I, no. 464 of 26 June 2015, should have co me into force on 26 December 2015.

The first p ostponement was made through Government Emergency Ordinance no. 61/2015 for the date of 31

THE DEVELOPMENT OF A “RESCUE CULTURE”. INSOLVENCY GLOBALIZATION

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the insolvency of territorial-administrative units, respectively, regulated by Government

Emergency Ordinance no. 46/2013 and approved by Law no. 35/2016

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, provisions that reflect

and strengthen the current trends at European level and outline a new “architecture” of

insolvency in the Romanian legal space, as an undisputable effect of the current economic

and social reality. Insolvency has acquired new valences, being legislatively harmonised in

the context of the Monist system implemented by the new Civil Code, but also driven, at the

same time, in its evolution, by the principles promoted at the level of the European Union and

other levels as well.

The substantiation and promotion of a “culture of salvation” through mechanisms

developed in stages by the insolvency right, which tends, it its evolution, towards an

independent law

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, is reflected in the modern normative purpose aiming at being focused on

and prioritizing the judicial reorganization as it is regulated by Law no. 85/2014 on

prevention insolvency proceedings and on insolvency procedure, the financial recovery

according to the norms of Government Emergency Ordinance no. 46/2013 regarding the

financial crisis and the insolvency of territorial and administrative units, approved by Law

no. 35/2016, as well as the reinsertion of natural persons in the social environment through a

well-deserved fresh-start, as regulated by Law no. 151/2015 on the insolvency of natural

persons, passing through the current social and economic filter the importance and need of

approaching these mechanisms promoted in the national, European Union and international

context.

1. THE EMPHASIS PLACED ON RESCUE – AN ILLUSORY

PHILOSOPHICAL CHANGE OR REALITY?

The provisions of Regulation (EU) 2015/848

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that have recently come into force (June

2017) paved the way for the stimulation and the consolidation of a legislation focused on

debtor rescue mechanisms, as well as proceedings of debt repayment or debt adjustmentin

relation to the consumers and to self-employed persons, and this Regulation expands its scope

by including of the insolvency proceedings and those providing the early restructuring of a

company in a stage where there is only a probability of the insolvency. In Romania, the

aforementioned Regulation is directly applied in relation to the regulation of international

relations in the field of insolvency in the relationships with the Member States of the

European Union, while in relation to non-EU third countries, the rules of private international

law contained in Law no. 85/2014 on "Cross-border insolvency" are applicable. Mention

December 20 16, followed byGovern ment E mergency Ord inance no. 98/2016, which postponed the date of its

coming into force to 1 August 2017, mean while the Methodological norms for the application of Law no.

151/2015 were also approved. Nevertheless, the application of the Law of insolvency of natural persons faced a

last postponement of the date of its co ming into force, i.e. 1 January 2018, according to Government Ordinance

no. 6/2017, published in the Official Journal of Romania no, 614 of 28 July 2017, due to the fact that the

complexity of the field regulated by this law was invoked, as well as the viewpoint of the Superior Council of

Magistracy which highlights that a rigorous preparation of the administrative capacity of the courts called upon

to apply the proceedings of the insolvency of natural persons is required.

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Official Journal no. 219/ 24.03. 2016.

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See I. Didea, D.-M. Ilie, Un nou statut al instituției insolven ței raportat la viziunea mo nistă

promovată de Noul Cod Civil. Conturarea unui drept special, particular - dreptul insolvenței - urmare abrogării

Codului Comercial, in Curieru lJudiciar no. 8/2017, pp. 425-434.

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Regulation (EU) 2015/848 on insolvency proceedings repealed Regulation (EC) 1346/2000 of the

European Council, its text being reformed to take into account the evolutions in the legislations o f the member

countries concerning the insolvency prevention proceedings, as well as the jurisprudence of the Court of Justice

of the European Union. The new text is applicable to insolvency proceedings opened from July 2017.