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The Insolvency Law Changed by the New Criminal Code and Criminal Procedure

By means of article 175 of Law no.187/2012 for applying the Law no. 286/2009 regarding the Criminal Code, published in The Official Gazette no. 757 on the 12.11.2012, Ist part, and entered into force on the 1.02.2014, there are several changes brought to Law no.85/2006 considering the insolvency procedure:

  • The suspensive effect of commencing the procedure becomes unplayable in case of the civil actions exercised during a criminal trial. This rule must be interpreted in relation with the provisions of art. 13-28 of the Code pf Criminal procedure regarding the civil action, respectively art. 19-28.
  • The estrangements made by the trustee in bankruptcy or the liquidator do not trigger ceasing or unenforceable of the insurance or preventive measures instituted within the criminal trial.
  • The bankruptcy judge’s attributions also include the intimation of criminal tracking when there is information of committing an offence, in conformity with the second thesis of article 11, paragraph 1, letter g.
  • The content of the notary affidavit through which the debtor that had submitted a request to become subject of Insolvency Law has to present within the documentation provided by article 28 implies the absence of previous convictions for a series of crimes: against the patrimony through overlooking trust, corruption offenses, dilapidation, forgery of documents, tax evasion, offenses provided by the republished Law no 656/2002 for preventing and sanction of money laundering, introducing measures against terrorist acts.
  • A debtor that was declared unable or had been convicted for offenses against patrimony, corruption, dilapidation, forgery of documents, tax evasion, offenses provided by the republished Law no. 656/2002, within a period of five years prior to submitting the introductory claim, cannot propose a restructuring plan.

The New Penal Code incriminates a series of offences that were previously found in the Insolvency Law, namely the offences of simple bankrupcy (article 240 of the New Criminal code), fraudulent (article 241) and fraudulent administration (article 242, paragraph 2).