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Law No. 597 Of 29 October 2002 Approving Government Emergency Ordinance Nr. 138/2001 For The Modification And Completion Of The Law #. 83/1998 Regarding Bankruptcy Banks

Original Language Title:  LEGE nr. 597 din 29 octombrie 2002 privind aprobarea Ordonanţei de urgenţă a Guvernului nr. 138/2001 pentru modificarea şi completarea Legii nr. 83/1998 privind procedura falimentului băncilor

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LEGE no. 597 597 of 29 October 2002 on approval Government Emergency Ordinance no. 138/2001 to amend and supplement Law no. 83/1998 on the bankruptcy procedure of banks
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 827 827 of 18 November 2002



The Romanian Parliament adopts this law + Article 1 Approval Government Emergency Ordinance no. 138 138 of 18 October 2001 to amend and supplement Law no. 83/1998 on the bankruptcy procedure of banks, published in the Official Gazette of Romania, Part I, no. 671 of 24 October 2001, with the following amendments and additions: 1. In Article I, point 2, Article 1 shall read as follows: "" Art. 1. -The bankruptcy procedure established by this Law shall apply to the following categories of credit institutions: a) banks of Romanian legal entities, including the House of Savings and Consemnations C.E.C. -S.A., as well as their branches having their headquarters abroad; b) central houses of credit cooperatives, including credit cooperatives affiliated to them. " 2. In Article I, point 3, letter a) of Article 2 shall read as follows: "" a) did not fully honor a certain, liquid and chargeable claim on a period of at least 7 working days from maturity, in the case of banks, including the House of Savings and Consemnations C.E.C. -S.A., and for a period of at least 30 working days from maturity, in the case of central banks of credit cooperatives, including credit cooperatives affiliated to them; " 3. Article I, after point 3, insert point 3 ^ 1 with the following contents: "" 3 ^ 1. The title of Chapter II shall read as follows: "Organs applying the bankruptcy procedure and their duties" " 4. In Article I, point 4 shall read as follows: "" Four. Article 3 will read as follows: "" Art. 3. -All the procedures provided for by this Law, with the exception of the appeal, shall be the exclusive jurisdiction of the tribunal in whose jurisdiction the debtor of the debtor credit institution is located in the commercial register and shall be exercised by a Judge-syndic. The syndic judge is nominated in each case by the president of the tribunal, among judges appointed as judge-sindices, under art. 12 12 para. ((3) of Law no. 92/1992 for the judicial organization, republished, with subsequent amendments and completions. The main tasks of the tribunal, under this law, are: a) the opening decision of the proceedings; b) to judge the appeal of the debtor credit institution against the introductory request made by the National Bank of Romania or by creditors for the start of the procedure; c) the appointment of the liquidator, by decision, the establishment of its duties and, if applicable, its replacement; d) to judge the actions introduced by the syndic judge for the cancellation of transfers of a patrimonial nature, prior to the opening decision of the procedure; e) the adjudication of appeals made by the debtor credit institution or by creditors against the measures taken by the syndic judge and the liquidator; f) confirmation of the plan to distribute the amounts obtained from liquidation; g) the decision to close the procedure. The tribunal's decisions are final and enforceable. They can be attacked with appeal under the law. "" 5. In Article I, point 5 shall be repealed. 6. In Article I, after point 5, points 5 ^ 1-5 ^ 3 are inserted with the following contents: "" 5 ^ 1. Article 4 will read as follows: "" Art. 4. -For the decisions given by the court based on art. 3, the court of appeal will be the court of appeal. The appeal will be tried within 15 days from the registration of the file to the court of appeal, the citation of the parties to be made by advertising, under the conditions of art. 95 of the Code of Civil Procedure. By way of derogation from art. 300 300 para. 3 and 4 of the Code of Civil Procedure, the decisions of the tribunal, except for the rejection of the appeal of the debtor credit institution, shall not be suspended by the court of appeal. " 5 5 ^ 2. Article 5 will read as follows: "" Art. 5. -According to the present law, the main duties of the syndic judge are: a) control over the liquidator activity; b) establishing the schedule of meetings of meetings of creditors whenever it considers necessary and presiding over meetings; c) confirmation of the plan to distribute the amounts obtained from liquidation; d) taking the necessary measures from the analysis of the reports submitted by the liquidator and the resolution of objections thereto; e) the introduction of actions for the cancellation of fraudulent acts concluded by the debtor credit institution at the expense of creditors ' rights in the 3 years preceding the opening of proceedings f) the introduction of actions for the cancellation of the constitutions or transfers of patrimonial rights to third parties and for their restitution of the transmitted goods and the value of other executed benefits, carried out by the credit institution debtors at the expense of creditors ' interests by 1. free transfer documents, carried out in the 3 years prior to the beginning of the bankruptcy procedure; the sponsorships for humanitarian purposes, carried out according to the legal provisions, are exempted; 2. commercial operations in which the performance of the debtor credit institution exceeds the one received, carried out in the 3 years prior to the start of the bankruptcy procedure; 3. acts concluded in the 3 years preceding the commencement of the procedure, with the intention of all parties involved in it to evade goods from the pursuit by creditors or to deny them in any other way the rights; 4. acts of transfer of ownership to a creditor for extinguishing a previous debt or for its benefit, carried out in the 180 days prior to the commencement of bankruptcy proceedings, if the amount the creditor could obtain in case of bankruptcy of the debtor credit institution is less than the value of the transfer act; 5. constitution or completion of a real guarantee for a claim that was chirographic in the 120 days prior to the beginning of the bankruptcy procedure; 6. acts concluded with persons in special relations with the debtor credit institution, in the year prior to the beginning of the bankruptcy procedure; persons in special relations with the debtor credit institution are those established by law; g) the admission of the plan to liquidate some assets from the debtor's credit institution, until the liability is covered; h) referral to the tribunal about any issue that would require a settlement by him; i) carrying out any procedural documents required by this law. " 5 5 ^ 3. Article 6 will read as follows: "" Art. 6. -In carrying out their duties, which involve the application of banking regulations, the court, the syndic judge and the liquidator may also ask the opinion of the National Bank of Romania, in its capacity as banking supervisory authority. "" 7. In Article I, point 6, Article 7 shall read as follows: "" Art. 7. -By the court decision on the commencement of the bankruptcy procedure the court raises the administrators of the debtor credit institution the right to represent the credit institution, to administer the assets of that institution, to dispose of they and will designate the liquidator, which will also be able to be the Deposit Guarantee Fund in the banking system, by way of derogation from the provisions art. 3 of Government Ordinance no. 79/1999 on the organization of the activity of the practitioners in reorganization and liquidation, and will specify the duties of the The general meeting of the shareholders of the debtor credit institution, namely the general meeting of the central house of the debtor credit cooperatives, will be able to designate as soon as possible, with simple majority, a representative, natural person or legal, to support them in the procedure and which will have the right, under the law, to challenge the measures taken by the syndic judge or the liquidator or to exercise the remedies against the judicial decisions. In the first meeting of the meeting of creditors they will be able to elect another liquidator, with a majority of 51% of the value of valid claims, registered with the court until the date provided for in the notice sent by the court, or they will maintaining the liquidator appointed by the tribunal If more liquidators are proposed, the liquidator who will meet the votes of the holders of the largest party of the value of the receivables registered with the court will be considered elected, under the conditions of par. 3. On the date of the establishment of the duties of the new liquidator by the court will cease the duties of the liquidator appointed by him The newly appointed liquidator will take over the activity from the replaced liquidator, under the control of the syndic judge. During the liquidation period the rights of all management and control structures-general assembly, administrators, executive management, censors, auditors are revoked. Provisions Law no. 64/1995 on the procedure of judicial reorganization and bankruptcy, republished, with subsequent amendments and completions, relating to the remuneration of the liquidator, shall apply accordingly. The activity of the liquidator shall be remunerated up to 3% of the amounts resulting from the liquidation operations. " 8. In Article I, after point 6, point 6 ^ 1 is inserted as follows: "" 6 ^ 1. Article 8 will read as follows: "" Art. 8. -The debtor credit institution and any of the creditors may appeal against the measures taken by the syndic judge and the liquidator, 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 credit institution, of the creditors and of the National Bank of Romania, with the participation of the syndic judge. "" 9. In Article I, point 7 shall read as follows: "" Seven. Article 9 will read as follows: "" Art. 9. -At any stage of bankruptcy proceedings, for thorough reasons-serious dol or fault-as well as the justified request of creditors, the tribunal may replace the syndic judge or liquidator by reasoned conclusion, given in the chamber of Council. For the appointment of another liquidator the tribunal will ask the general meeting of creditors for another proposal for the liquidator, which will be chosen in accordance with the provisions of art. 7. The appointment of the new liquidator will be made in compliance with 3 3. "" 10. In Article I, point 8, Article 10 shall read as follows: "" Art. 10. -According to this law, the main duties of the liquidator are a) at the time of receipt of the court decision on the commencement of bankruptcy proceedings will open at a bank operating on the territory of Romania, selected by auction, within 10 days, in relation to the efficiency criteria established for defending the interests of creditors, including from the point of view of territorial network development, two accounts, one in lei and another in foreign currency, with the mention of credit institution in bankruptcy, with exclusive right of disposition in the interest of bankruptcy proceedings. In the accounts type of credit institution in bankruptcy will be transferred by the liquidator the amounts existing in the accounts to other financial-banking institutions. The liquidator will immediately communicate to the National Bank of Romania the commercial bank and the accounts opened with it, after which the National Bank of Romania will immediately transfer to these accounts the availability of the credit institution in its records. The operations of the credit institution in bankruptcy will continue to be carried out through these accounts; b) the examination of the activity of the debtor credit institution in relation to the factual situation, the preparation of a detailed report on the causes and circumstances that led to the state of bankruptcy, with the mention of the persons to whom it would be imputable, and submission of this report to the syndic judge for approval, no later than 30 days after the commencement of bankruptcy proceedings; at the request of the liquidator the syndic judge will be able to extend this period, for thorough reasons, by conclusion; c) inventory of the goods of the debtor credit institution and taking appropriate measures for their preservation, the application of seals at the start of bankruptcy proceedings, in accordance with the provisions Law no. 64/1995 , republished, with subsequent amendments and completions; d) employment, in compliance with the legal provisions, of the necessary personnel for the liquidation and management of its activity, the employment being made from the existing staff of the debtor credit institution; e) the management of the activity of the debtor credit institution, namely the carrying out of operations in the interest of bankruptcy, including loan rescheduling and new interest rates on the assets of the debtor credit institution, provided that any new level of interest rate is not lower than the level of the last reference interest communicated by the National Bank of Romania, as well as participation in the interbank foreign exchange market, taking all measures, such as resizing of staff employed for the purpose of permanent reduction of expenditure operation and liquidation; f) maintaining, terminating or denouncing contracts concluded by the debtor credit institution, as well as the conclusion of new contracts in the interest of bankruptcy proceedings; g) the examination of claims on the debtor credit institution and, where appropriate, the wording of objections thereto; h) receipt of the amounts in lei and in foreign currency to the debtor credit institution and their record, within 24 hours, in the new accounts of the debtor credit institution, with the mention of credit institution type in bankruptcy, accounts open to a commercial bank; i) taking appropriate measures regarding the foreign currency accounts of the debtor credit institution, opened with correspondent credit institutions, by: 1. the notification of the correspondents on the bankruptcy declaration of the debtor credit institution, as well as on the blocking of availability from the respective accounts in foreign currency; 2. the subsequent transfer, within the shortest period, of the availability to the account in foreign currency, with the mention of credit institution type in bankruptcy, which develops on analytical-for each currency-, opened at the commercial bank; the account in foreign currency will be converted into lei and transferred to the credit institution account in bankruptcy, opened in lei; 3. making payments for the ongoing operations of the debtor credit institution, as well as the efficient administration of availabilities; j) the pursuit of the collection of receivables from the debtor's credit institution's wealth, resulting from the transfer of goods or amounts of money, carried out by it before the registration of the application; k) liquidation of the assets and rights of the debtor credit institution-all procedures, measures and techniques for the realization of the assets of the credit institution in bankruptcy-, in compliance with the principle of minimum cost assumed, respectively of their optimal recovery, in order to pay debts to creditors by: 1 1. transactions regarding the purchase of assets and the assumption of liabilities through which a credit institution with a good financial situation acquires, in part or in all, the assets of the debtor credit institution and assumes, in part or in all, its liabilities, including the totality of the guaranteed deposits; transactions concerning the purchase of assets and the assumption of liabilities may be made in sight or at term with option; after purchase, for the assets encumbered by operations for which they are based fraud or as a result of thefts of financial instruments, the parties may modify the initial transaction, following that the acquiring credit institution receives from the liquidator, in consideration, other assets or amounts of money; 2. sale of goods, such as: buildings, land, equipment, securities, liquidation operations that are carried out in compliance with the provisions of section 6 "bankruptcy" of Law no. 64/1995 , republished, with subsequent amendments and completions; 3. other techniques for the realization of assets, such as debt disposals or novations, made in the interest of bankruptcy proceedings at a negotiated value; l) preparation of a monthly report on the evolution of the bankruptcy procedure, respectively on the stage of performance of the liquidator's duties, which it will present to the syndic judge for approval; such a report will include information on to the total amount of receivables on the debtor credit institution and to the total value of its assets that have been capitalized, to the amounts obtained from the liquidation and collection of receivables, to the distribution plan between creditors; m) the preparation of the final liquidation balance; if the liquidation is extended beyond the duration of a financial year, the liquidator is obliged to draw up the annual balance sheet and to submit it to the bodies and to the deadlines set out in the models financial and accounting statements for banks; n) referral to the syndic judge about any problem that would require a resolution by him; o) the conclusion of any document on behalf of the debtor credit institution, the initiation and coordination, on its behalf, of any legal action or proceedings; p) carrying out any procedural documents required by this law. " 11. in Article I, after point 8, points 8 ^ 1 and 8 ^ 2 are inserted as follows: "" 8 ^ 1. Article 11 is repealed. 8 8 ^ 2. Article 12 will read as follows: "" Art. 12. -The bankruptcy procedure will begin on the basis of a request made by the debtor credit institution or its creditors or by the National Bank of Romania. "" 12. In Article I, paragraph 12, paragraphs 1 and 4 of Article 18 shall read as follows: "" Art. 18. -Following registration of the application, introduced according to art. 14, 16 and 17, the tribunal will immediately notify the parties mentioned in these articles, including the National Bank of Romania. ................................................................ In the absence of availability in the accounts provided in art. 10 lit. a) will be used availabilities from the liquidation fund provided by Law no. 64/1995 , republished, with subsequent amendments and completions. " 13. In Article I, point 13, Article 19 shall read as follows: "" Art. 19. -At the first court term the tribunal will consider the application and, if the debtor credit institution does not contest the bankruptcy state, will give the decision on the start of the bankruptcy procedure. The appeal against the request to trigger the bankruptcy procedure can be made within 5 days from the date of communication of this request. The Tribunal will rule on the appeal within 10 days, a term that can be extended only once more than 10 days. Following the decision to start the bankruptcy procedure, as a result of the application introduced according to art. 14, 16 and 17 and the designation of the liquidator, the tribunal shall communicate to the parties referred to in the said Articles, including the liquidator and the Deposit Guarantee Fund in the banking system, in order to fulfill its legal duties, as well as the office of the trade register to which the debtor credit institution is registered, for the performance of the "bank in bankruptcy", respectively "the central house of credit cooperatives in bankruptcy". The communication will be made public in two national circulation newspapers. If the credit institution in bankruptcy has opened branches in other countries, the National Bank of Romania will immediately communicate about the start of the bankruptcy procedure of the banking supervisory authority in the host country of the respective branch. From the date of commencement of the bankruptcy procedure all the acts of the debtor credit institution will bear the mention "bank in bankruptcy", namely "the central house of credit cooperatives in bankruptcy". For statistical purposes, credit institutions in bankruptcy will be considered as belonging to the banking sector. The reports to be drawn up and submitted by the liquidator to the National Bank of Romania, the periodicity and the manner of their transmission will be established by norms by the National Bank of Romania. " 14. In Article I, paragraph 14, paragraph 1 of Article 20 shall read as follows: "" Art. 20. -The Tribunal will communicate on the same day to the National Bank of Romania its decision on the start of the bankruptcy procedure of the debtor credit institution. On the date of communication of the decision on the start of the bankruptcy procedure the National Bank of Romania will close immediately, after the final settlement of that day, the accounts of the debtor credit institution, opened in its records, and will transfer availability in the accounts type "credit institution in bankruptcy", opened at a commercial bank according to art. 10 10. " 15. In Article I, point 15 shall read as follows: "" 15. Articles 20 ^ 1-20 ^ 4 will read as follows: "" Art. 20 20 ^ 1. -From the date of opening of the procedure all judicial or extrajudicial actions are suspended for the realization of claims on the debtor credit institution or its assets. The opening of the procedure suspends any limitation periods of the actions provided in 1. The terms will restart to run after 30 days from the closure of the procedure. The actions introduced by the liquidator in application of the provisions of this law are exempt from stamp duty. Article 20 ^ 2. -No interest or expense will be added to the receivables on the debtor credit institution from the date of opening of the procedure. Art. 20 ^ 3. -After the bankruptcy procedure was ordered, according to art. 19, it is forbidden to the administrators of the debtor credit institution, under penalty of nullity, to dispose without the consent of the judge-syndic the actions, namely the social parts held at the debtor bank, which are the subject of this procedure. The syndic judge will order the preservation of the shares, respectively of the social parts, according to par. 1, in the special record books or in electronically registered accounts. Article 20 ^ 4. -The employees of the credit institution in bankruptcy proceedings will be able to designate two persons to represent them in the liquidation process, after the opening of the procedure for the recovery of claims representing salaries and other rights money. "" 16. In Article I, point 16, Article 21 shall read as follows: " Article 21. -The head provisions. III section 6 "Bankruptcy" of Law no. 64/1995 , republished, with subsequent amendments and completions, will also apply accordingly to the procedure of bankruptcy of credit institutions, except art. 79, respectively of art. 100 100 para. (2), as regards the start of liquidation after the display of the debt table, and of art. 108, as regards the payment order of creditors ' claims on the credit institution in bankruptcy. " 17. In Article I, paragraph 17, Article 21 ^ 1, paragraphs 4 and 9 shall read as follows: "" 4. budgetary claims arising from taxes, duties, fines and other amounts representing public revenues, according to Law no. 500/2002 * *) on public finances, the claims of the Deposit Guarantee Fund in the banking system, as well as the receivables of the National Bank of Romania arising from loans granted by this credit institution in bankruptcy; .................................................................. 9. the claims of the bank's shareholders in bankruptcy, namely the claims of the cooperative members of the credit cooperatives affiliated to the central house of the bankruptcy credit cooperatives, arising from the holdings in the share capital. " -------------- Note * *) Law no. 500/2002 was published in the Official Gazette of Romania, Part I, no. 597 597 of 13 August 2002 and shall enter into force on 1 January 2003. 18. In Article I, paragraph 18, the title of Chapter IV shall read as follows: "" CHAPTER IV The responsibility of the management bodies, the censors, the internal control bodies and the execution personnel in the credit institution reached bankrupt " 19. In Article I, point 19, Article 22 shall read as follows: "" Art. 22. -The Tribunal may order that part of the liability of the credit institution in bankruptcy be borne by the members of the governing bodies, censors, execution personnel and/or internal control duties that held those functions in the the 3 years preceding the commencement of bankruptcy proceedings, if they contributed to its bankruptcy by one of the following facts: a) have used the institution's goods or credits for their own benefit b) have made acts of trade for personal interest, under the cover of the credit institution; c) have in their personal interest the continuation of an activity that manifestly led the credit institution 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) have diverted or concealed part of the asset of the credit institution or have fictitious increased its liabilities; f) used ruinous means to procure the credit institution funds, in order to delay the cessation of payments; g) have granted credits in violation of prudential requirements approved by the rules in force, as well as the internal rules in force; h) 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; i) have drawn up accounting balance sheets, other accounting situations or reports prepared with non-compliance with legal provisions; j) in the framework of internal verification actions they did not identify and did not notice, by non-compliance with their duties, the facts that led to fraud and mismanagement of the patrimony. Application of paragraph 1 1 does not remove the application of criminal law for the acts constituting The start of the prosecution does not suspend the civil and commercial litigation Provisions of paragraph 1 shall apply only to persons exercising the functions referred to in this paragraph after the entry into force of the law approving this ordinance. " 20. Article I, after point 19, insert point 19 ^ 1 with the following contents: "" 19 ^ 1. Article 24 will read as follows: "" Art. 24. -In order to take the measures provided in art. 22 22 para. 1, the court may be notified by the syndic judge, by the liquidator or 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 be able to order measures insurers. "" 21. In Article I, point 20, Article 26 shall read as follows: "" Art. 26. -The bankruptcy procedure will be closed when the tribunal approved the final report, when all funds or assets in the wealth of the credit institution reached bankrupt were distributed and the unsecured funds were deposited with the Bank. National of Romania. Following the request of the syndic judge the tribunal will give a decision to close the bankruptcy procedure. The decision will be communicated in writing or by the press, in at least two national circulation newspapers, to all creditors of the debtor credit institution, to the Trade Register Office, to the National Bank of Romania and to the liquidator who will close Credit institution accounts in bankruptcy. Any remaining amounts will be transferred to the state budget. Within 60 working days of the decision to close the bankruptcy procedure, the liquidator shall submit for storage at the county direction of the national archives all the documents of the debtor credit institution, archived according to National Archives Law no. 16/1996 ,, as amended and supplemented. " 22. In Article I, point 21, Article 27 shall read as follows: "" Art. 27. -The provisions of this law shall be supplemented by those of the Code of Civil Procedure, as well as those of Law no. 64/1995 , republished, with subsequent amendments and completions. " 23. in Article I, the following point 22 is inserted after point 21: "" 22. Article 28 shall be repealed. ' 24. Article II shall read as follows: "" Art. II. -Synagma debtor bank from the text art. 14 14, 15 and 23 of Law no. 83/1998 , with subsequent amendments and completions, will be replaced by the phrase the debtor credit institution. " 25. Article III shall read as follows: "" Art. III. -Judicial reorganization procedures triggered on the basis of provisions Law no. 64/1995 , republished, with subsequent amendments and completions, will be continued in accordance with the provisions of the said law. Bankruptcy proceedings triggered on the basis of provisions Law no. 83/1998 , with subsequent amendments and completions, will be continued in accordance with the provisions of the said law, valid at the time of the decision to open the procedure. " + Article 2 On the date of entry into force of this Law Government Emergency Ordinance no. 186/1999 to amend and supplement Law no. 83/1998 on the bankruptcy procedure of banks, published in the Official Gazette of Romania, Part I, no. 567 567 of 19 November 1999, shall be repealed. This law was adopted by the Senate at the meeting of October 7, 2002, in compliance with the provisions of art 74 74 para. (2) of the Romanian Constitution. p. SENATE PRESIDENT, GHEORGHE BUZATU This law was adopted by the Chamber of Deputies at its meeting on October 8, 2002, in compliance with the provisions of 74 74 para. (2) of the Romanian Constitution. CHAMBER OF DEPUTIES PRESIDENT VALER DORNEANU Bucharest, October 29, 2002. No. 597. --------