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Law No. 83 Of 15 April 1998 On The Insolvency Of Banks

Original Language Title:  LEGE nr. 83 din 15 aprilie 1998 privind procedura falimentului băncilor

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LEGE no. 83 83 of 15 April 1998 on the bankruptcy procedure of banks
ISSUER Parliament
Published in OFFICIAL MONITOR no. 159 159 of 22 April 1998



The Romanian Parliament adopts this law + Chapter 1 General provisions + Article 1 The legal banks established in Romania, which are insolvent, are subject to the bankruptcy procedure established by this law. + Article 2 A bank shall be considered insolvent if it is in one of the following situations: a) the bank has not fully honored the required, liquid and chargeable claims for at least 30 days; b) the value of the bank's obligations exceeds its asset value The value of the bank's asset and liability will be calculated in accordance with the rules issued by the National Bank of Romania in this regard. + Chapter 2 Tasks of the bodies applying the bankruptcy procedure + Article 3 The main tasks of the tribunal, under this law, are: a) the appointment of the syndic judge and the appointment, with the consent of the National Bank of Romania, of the liquidator, the control over their activity and, if applicable, their replacement; b) approval of the appointment of experts, authorized according to the law, to assist the syndic judge in the performance of his duties; c) the adjudication of requests to raise the administrators of the debtor bank the right to conduct its activity; d) to judge the actions brought by the syndic judge for the cancellation of transfers of a patrimonial nature, prior to the application; e) to judge the appeals of the debtor bank or creditors against the measures taken by the trade union judge; f) confirmation of the plan of distribution of funds obtained from liquidation; g) the settlement of objections to the semester and final reports of the trade union judge; h) the giving of the decisions to start and close the bankruptcy procedure. + Article 4 The tribunal's decisions are final and enforceable. Under the law they can be attacked with appeal. + Article 5 The syndic judge shall be appointed by the President of the General Court, pursuant to Law no. 92/1992 for the judicial organization + Article 6 In the performance of his duties, which involves the application of banking regulations, the syndic judge can also ask the opinion of the National Bank of Romania, in its capacity as banking supervisory authority. + Article 7 The main duties of the syndic judge, within the framework of this law, are: a) the examination of the debtor bank's activity, in relation to the factual situation, the preparation of a detailed report on the causes and circumstances that led to the cessation of payments, with the mention of the persons to whom it would be imputable, and the submission of that report to the tribunal, within 30 days of its designation; b) the management of the activity of the persons he hired to help him; c) the introduction, in court, of actions for the annulment of fraudulent acts, concluded by the debtor bank at the expense of creditors ' rights, as well as of transfers of a patrimonial nature, of commercial operations concluded by the debtor bank and the establishment of guarantees granted by it; d) maintaining or terminating contracts concluded by the debtor bank; e) the admission of the plan to liquidate some assets from the debtor bank's estate, until the liability is covered; f) at the beginning of the bankruptcy procedure, the application of seals, the inventory of the debtor bank's assets and the taking of appropriate measures for their preservation; g) the examination of claims and, where appropriate, the formulation of objections to them; h) the pursuit of the collection of receivables from the debtor bank's estate, resulting from transfers of goods or amounts of money, made by it before the registration of the application; i) liquidation of the assets from the debtor bank's estate; j) receiving payments on account of the debtor bank and recording the amounts, within 24 hours, in a bank account opened with the National Bank of Romania, in the name of the debtor bank, with the exclusive right of disposition in the interest of bankruptcy proceedings; k) referral to the tribunal about any issue that would require a settlement by him; l) carrying out any procedural documents required by this law. + Article 8 The debtor bank and any of the creditors may appeal against the measures taken by the syndic judge, in the cases expressly provided for by this law. Such an appeal will have to be registered within 10 days from the date on which the measure was taken, and its resolution will be made within 30 days. If necessary, the court will hold a meeting, with the citation of the author of the appeal, of the debtor bank, of the creditors and of the National Bank of Romania, with the participation of the syndic judge. + Article 9 At any stage of bankruptcy proceedings, the tribunal may replace one judge-syndically with another, by reasoned conclusion, given in the council chamber. + Article 10 In all cases of bankruptcy, at the proposal of the syndic judge and with the opinion of the National Bank of Romania, the court will appoint a liquidator. It will have to be the specialized legal person, constituted according to the law. + Article 11 A liquidator is invested with management and control powers over the debtor bank and may take those measures that it considers necessary to liquidate the debtor bank's assets, in order to obtain their optimal recovery, even in the cases in which the debtor bank has been withdrawn. These measures concern the following issues: a) to continue or to interrupt, justifiably, any operation; b) to borrow money, guaranteeing with the assets of the debtor bank or without guarantee; c) to set again the interest rates on the liabilities of the debtor bank, provided that, however, any new level of interest rate is not lower than the lowest level practiced on the banking market; d) hire the necessary staff; e) to conclude any document on behalf of the debtor bank, to initiate or defend and to coordinate, on its behalf, any legal action or procedure. The liquidator will draw up a monthly report on the evolution of the bankruptcy procedure, which he will present for approval to the syndic judge, after which he will also transmit it to the National Bank of Romania. Such a report shall include information on the total amount of receivables on the debtor bank and the total value of the debtor bank's assets that have been sold. + Chapter 3 Procedure for referral to the tribunal + Article 12 The bankruptcy procedure will begin on the basis of a request made by the debtor bank or its creditors or by the National Bank of Romania. The court competent to settle the application shall be the one in whose jurisdiction the head office of the debtor bank is located. + Article 13 The bankruptcy procedure of a bank shall be started, as a rule, after the finding by the National Bank of Romania that the application of special surveillance measures, carried out for the purpose of the recovery of that bank, did not lead to the avoidance of Insolvent. + Article 14 The debtor bank, which can no longer fully cope with its chargeable debts with the amounts of money available, may apply to the tribunal an application to be subject to the provisions of this law. The bank's request will be signed by people who, according to the law, have the quality to represent it. + Article 15 The debtor's request shall be accompanied by the following acts: a) the balance sheet and copies of the current books; b) a list of all goods; for real estate the data from the real estate advertising registers will be passed; c) a list of the names and addresses of the creditors, however their claims would be-certain or under condition, liquid or illiquid, due or not present, uncontested or contested-, showing the amount, the cause and the rights of preference; d) profit and loss account for the year prior to the application. + Article 16 Any creditor, who has a definite, liquid and chargeable claim, may bring to the court an application against a debtor bank, which, for at least 30 days, is in cessation of payments. The creditor will not be able to enter the application without proof that, in advance, as a result of the introduction of an enforcement action on the account of the debtor bank, the National Bank of Romania, as a third party, has communicated that the bank that has been in a cessation of payments for more than 30 days. + Article 17 The National Bank of Romania, in its capacity as banking supervisory authority, will be able to apply against the bank against which special supervision and administration measures were applied and which did not lead to the bank's recovery in the situation of not fully honoring payments. + Article 18 Following registration of the application, introduced according to art. 14, 16 and 17, the tribunal will notify this interested parties and the trade register office where the debtor bank is registered, for making the mention. All expenses for these measures will be borne from the debtor bank's estate. + Article 19 At the first court term, the tribunal will consider the application and, if the debtor bank does not contest the insolvency situation, it will order the immediate start of the debtor bank's bankruptcy procedure. The appeal against the request for triggering the bankruptcy procedure can be made within 5 days from the date of registration of this request. The Tribunal will rule on the appeal, within 10 days, a term that can be extended only once, for another 10 days. The court decision on the commencement of the debtor bank bankruptcy procedure will be communicated immediately to the Deposit Guarantee Fund in the banking system, in order to apply the regulations on the payment of guaranteed deposits. + Article 20 The Tribunal will communicate to the National Bank of Romania its decision on the commencement of bankruptcy proceedings. The National Bank of Romania will immediately close the accounts of the debtor bank, opened at the National Bank of Romania, and will open a new account, with the mention "bank in bankruptcy". In this account will be transferred the amounts of money existing until that date in the bank's accounts. Next, the bank's financial operations in bankruptcy will take place exclusively through this account. + Article 21 The other procedures for carrying out the liquidation operations are provided by Law no. 64/1995 on the production of judicial reorganization and bankruptcy, as amended, Chapter III, Section 6 "Bankruptcy", which will also apply accordingly to the bankruptcy procedure of banks. + Chapter 4 The responsibility of the management bodies and the censors of the bank reached bankruptcy + Article 22 The Tribunal may order that part of the bank's liability, which is bankrupt, be borne by the members of the governing bodies-administrators, directors and, as the case may be, censors, if they have contributed to its bankruptcy, by one of the following facts: a) used the bank's goods or credits for their own benefit; b) have made acts of trade for personal interest, under the cover of the bank; c) ordered, for personal interest, the continuation of an activity that manifestly led the bank to the cessation of payments; d) they kept a fictitious accounting, made some accounting documents disappear or did not keep the accounting in accordance with the law; e) they have hijacked or hidden part of the bank's asset or have, in a fictitious way, increased its liabilities; f) used ruinous means, in order to procure the bank funds, in order to delay the cessation of payments; g) in the month preceding the cessation of payments, they paid or ordered to pay, with preference, to a creditor, at the expense of the other creditors. Application of paragraph 1 1 does not remove the application of criminal law for acts constituting crimes + Article 23 Amounts paid according to art. 22 22 para. 1 will enter into the debtor bank's estate and will be intended to pay debts. + Article 24 In order to take the measures provided for in 22 22 para. 1, the tribunal may be notified by the syndic judge, by any of the creditors, by the National Bank of Romania or may be notified ex officio, based on the data in the case file, and will order precautionary measures. + Article 25 Enforcement against persons referred to in art. 22 22 para. 1 shall be carried out according to the provisions of the Code + Article 26 The bankruptcy procedure will be closed when the court approved the final report, when all funds or assets from the bank's wealth reached bankrupt were distributed and the non-eclamated funds were deposited with the National Bank of Romania. Following a request by the syndic judge, the tribunal will give a ruling, closing the bankruptcy proceedings. The decision will be communicated, in writing, to all creditors, to the debtor bank and to the National Bank of Romania, which will close the existing "bank in bankruptcy" account and will transfer any remaining amounts to the state budget. These amounts may be requested by entitled persons, within the statutory limitation period. + Chapter 5 Transitional and final provisions + Article 27 The provisions of this law shall be supplemented, in so far as their compatibility with those of the Code of Civil Procedure + Article 28 The procedures for reorganization and judicial liquidation of banks, open until the date of entry into force of this law, will be continued and closed under the terms of Law no. 64/1995 on the procedure of judicial reorganization and bankruptcy, with subsequent amendments and completions. + Article 29 This law shall enter into force 30 days from the date of its publication in the Official Gazette of Romania, Part I. + Article 30 On the date of entry into force of this Law, any contrary provisions shall be repealed. This law was adopted by the Senate at the meeting of March 30, 1998, in compliance with the provisions of art 74 74 para. (2) of the Romanian Constitution. p. SENATE PRESIDENT RADU VASILE This law was adopted by the Chamber of Deputies at the meeting of March 30, 1998, in compliance with the provisions of 74 74 para. (2) of the Romanian Constitution. p. CHAMBER OF DEPUTIES PRESIDENT VASILE LUPU ---------------------