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Law No. 287 Of 6 July 2006 Amending And Supplementing Government Ordinance No. 51/1997 On Leasing Operations And Leasing Companies

Original Language Title:  LEGE nr. 287 din 6 iulie 2006 pentru modificarea şi completarea Ordonanţei Guvernului nr. 51/1997 privind operaţiunile de leasing şi societăţile de leasing

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LEGE no. 287 287 of 6 July 2006 to amend and supplement Government Ordinance no. 51/1997 on leasing operations and leasing companies
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 606 606 of 13 July 2006



The Romanian Parliament adopts this law + Article I Government Ordinance no. 51/1997 on leasing operations and leasing companies, republished in the Official Gazette of Romania, Part I, no. 9 of 12 January 2000, as amended and supplemented, shall be amended and supplemented as follows: 1. In Article 1, paragraph 1 shall read as follows: "" Art. 1. -(1) This ordinance applies to leasing operations by which a party, called lessor/financier, transmits for a fixed period the right of use on a good, the owner of which is, the other party, referred to as lessee/user, at its request, against a periodic payment, called the leasing rate, and at the end of the leasing period the lessor/financier undertakes to respect the right of option of the lessee/user to buy the good, the to extend the lease without changing the nature of the lease or to terminate the reporting contract. The lessee/user may opt for the purchase of the property before the end of the lease period, but not earlier than 12 months, if the parties so agree and if they pay all the obligations assumed by the contract. " 2. In Article 1, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: "" (1 ^ 1) This ordinance also applies if the lessee/user of a property subject to a lease concludes with another lessee/user, referred to as the lessee/end user, a lease having as object the same Good. The lease agreement concluded with the lessee/end user will be concluded after obtaining the prior written consent of the original lessor/financier and the meeting by the lessee/user of the conditions required of the leasing companies. In these cases, the abolition of the title of the lessee/original user for any reason will lead to the termination of the lease agreement concluded between the latter and the lessee/end user. " 3. In Article 1, paragraph 2 shall read as follows: " (2) The leasing operations have as their object immovable property by their nature or that become immovable by destination, as well as movable property, located in the civil circuit, except for the recordings on audio and video tape, of the plays, of manuscripts, patents, copyrights and intangible assets. " 4. In Article 2, points c) and d) shall read as follows: " c) residual value is the value to which, after the payment by the user of all the lease rates provided for in the contract, as well as all other amounts due under the contract, the transfer of ownership is made on the good to the lessee/user and is determined by the contracting parties; d) the leasing rate represents: -in the case of financial leasing, the share of the entry value of the asset and the lease interest, which is determined on the basis of the interest rate agreed by the agreement of the parties; -in the case of operational leasing, the rent shall be determined by agreement of the parties; ' 5. Article 3 shall read as follows: "" Art. 3. -(1) As part of a leasing operation, a leasing company, Romanian or foreign legal entity, may be the locator/financier. (2) Any natural or legal person, Romanian or foreign, may have the status of lessee/user, under the Romanian law. " 6. Article 4 shall read as follows: "" Art. 4. -In order to carry out a leasing operation, any natural or legal person formulates a firm request, stating the good that will be the subject of the lease. The application shall be transmitted to the leasing company together with the documents showing the financial situation of the applicant. " 7. Article 5 shall read as follows: "" Art. 5. -Through the lease-financial or operational contract-, the obligation to ensure the property lies with the locator/financier, who has the freedom regarding the choice of the insurer, if the parties did not agree otherwise. The costs of insurance shall be charged to the les/user, if the parties do not agree otherwise. " 8. In Article 6, paragraphs 1 and 2 shall read as follows: "" Art. 6. -(1) The leasing contract must include, in addition to the contracting parties, at least the following elements: a) the clause on the definition of the lease as financial or operational leasing; b) the name of the property subject to the lease and its identification characteristics; c) the value of the leasing rates and their payment term; d) the period of use in the leasing system of the property; e) the clause on the obligation to ensure the f) the total value of the lease. (2) The financial leasing contract must include, in addition to the elements provided in par. (1), the following: a) the entry value of the property; b) the residual value of the good agreed by the parties where appropriate; c) the value of the advance d) the lease rate. " 9. Article 7 shall read as follows: "" Art. 7. -The lease agreement is concluded in writing. In the event of termination of the lease at fault of the user or by the total disappearance of the property through theft, total damage, total destruction, defined according to the law, occurred before the fulfillment of a year after the entry into force of the contract, it does not change its nature, and the good that is the subject of the lease is treated tax and accounting as good, object of a lease. " 10. Article 8 shall read as follows: "" Art. 8. -The leases, as well as the real and personal guarantees, constituted for the purpose of guaranteeing the obligations assumed by the leasing contract, constitute enforceable securities. " 11. Article 9 shall read as follows: "" Art. 9. -The locator/financier undertakes: a) respect the right of the lessee/user to choose the supplier of goods, according to his interests; b) to contract the property with the supplier designated by the lessee/user, under the express conditions formulated by him or, as the case may be, to acquire the definitive right of use on the computer program; c) to conclude lease agreement with the lessee/user and to transmit to it, under the lease, the rights deriving from the contract, except for the right of provision, and in the case of computer programs, to transmit the right of use on computer programs to the lessee/user, without being able to exercise this right during the leasing contract; d) to respect the right of option of the lessee/user to buy the good, to extend the lease, without changing the nature of the leasing, or to cease the contractual relations; e) to guarantee the lessee/user quiet use of the good, given that he has complied with all the contractual clauses; f) to ensure, through an insurance company, the goods offered on lease, if by the leasing contract the parties did not agree otherwise. " 12. In Article 10, the introductory part and letters a), c), d), e), g), h) and i) shall read as follows: "" Art. 10. -The lessee/user undertakes: a) to carry out the reception and to receive the good at the deadline and in the delivery conditions agreed with the supplier; ...................................................................... c) not to encumbered the good that is the subject of the leasing contract except with the agreement of the financier d) to pay all amounts due under the lease-lease rates, insurance, taxes, fees-, in the amount and at the deadlines mentioned in the contract; e) bear the maintenance expenses, as well as any other expenses related to the property or the lease; ...................................................................... g) allow the locator/financier to verify periodically the condition and the manner of exploitation of the good that is the subject of the lease; h) to inform the locator/financier, in due time, about any disorder of the right of ownership coming from a third party; i) not to make changes to the good and not to change the place declared in the contract without the consent of the locator/financier. " 13. In Article 12, the introductory part and letter a) shall read as follows: "" Art. 12. -Under the lease agreement, the lessee/user has the following rights: a) direct action on the supplier, in the case of complaints regarding the delivery, quality, technical assistance, service required during the warranty and post-warranty period, the lessor/financier being exonerated from any liability; ". 14. Article 13 shall read as follows: "" Art. 13. -(1) The rights of the locator/financier on the property used under a lease contract are opposable to the syndic judge, if the lessee/user is in judicial reorganization and/or bankruptcy, in accordance with legal provisions in the matter. (2) If the lessee/user is in dissolution and/or liquidation, the provisions of par. ((1) shall also apply to the liquidator appointed Law no. 31/1990 on companies, republished, as amended. (3) The rights of the les/user on the property used under a leasing contract are opposable to the syndic judge and to the creditors if the lessor/financier is in judicial reorganization and/or bankruptcy, in compliance with legal provisions in the matter. (4) If the lessor/financier is in dissolution and/or liquidation, the provisions of par. ((3) shall also apply to the liquidator appointed Law no. 31/1990 , republished, as amended. (5) In the cases provided in par. (3) and (4) the rights of the lessee/user provided by this ordinance and those stipulated in the leasing contract shall follow the property owned by any acquirer thereof, given that they have been complied with exactly the rights of the lessee. ' 15. Article 14 shall read as follows: "" Art. 14. -(1) If the lessee/user refuses to receive the good at the term agreed with the supplier and/or in the lease or if he is in a state of judicial reorganization and/or bankruptcy, the lessor/financier has the right to terminate the lease with damages. (2) The locator/financier does not respond if the property subject to the lease is not delivered or is improperly delivered to the lessee/user by the supplier. " 16. Article 15 shall read as follows: "" Art. 15. -If in the contract it is not provided otherwise, if the lessee/user does not execute the full payment obligation of the lease rate for two consecutive months, calculated from the maturity provided in the lease, the lessor/financier has the right to terminate the lease, and the lessee/user is obliged to refund the property and pay all the amounts due, until the date of the refund under the lease. " 17. Article 16 shall read as follows: "" Art. 16. -If the lessor/financier does not comply with the right of option of the place/user, as provided for in this ordinance, the lessor/financier owes damages equal to the total damage caused by the violation of this obligations, and the court vested with the establishment of damages will be able to pronounce a decision to take place of sale-purchase act. " 18. Article 17 shall read as follows: "" Art. 17. -If during the lease of the lease the lessor/financier alienates the good, respectively assigns the definitive right of use on the computer program to another leasing company, the acquirer is related to the same contractual obligations as the locator/financier who alienated the good, namely the transmitter that divested the definitive right of use on the computer program. " 19. Article 18 shall read as follows: "" Art. 18. -From the moment of conclusion of the lease and until its expiration and reentry into possession of the property, the lessor/financier is cleared of any liability to third parties for damages caused by use of the good, deed or omission of the location/user. " 20. In Article 19, paragraph 2 shall read as follows: " (2) Leasing companies are commercial companies that have as their main activity the conduct of leasing operations and have a minimum, subscribed and fully paid share capital in cash, upon establishment, equal to the equivalent in currency. national-leu-of the amount of 200,000 euros. " 21. in Article 19, after paragraph 2, a new paragraph (3) is inserted, with the following contents: "(3) The quality of the supplier and the financier shall be permitted in compliance with the provisions of this ordinance." 22. After Article 19, a new chapter is inserted, Chapter V ^ 1, comprising Article 19 ^ 1, with the following contents: "" CHAPTER V ^ 1 Audit of annual financial statements Art. 19 ^ 1-The annual financial statements of the leasing companies will be developed in accordance with the provisions of the applicable accounting regulations and will be audited by natural or legal persons, active persons, members of the Chamber of Auditors Financial from Romania, according to the legal regulations in force. " 23. Article 20 shall read as follows: "" Art. 20. -(1) The registration of the depreciation of the good that is the subject of the contract shall be made in the case of financial leasing by the lessee/user, and in the case of operational leasing by the lessor/financier. (2) The purchases of immovable and movable property, in the case of financial leasing, are treated as investments, being subject to depreciation in accordance with the normative acts in force. ((3) The registration of leasing operations in the accounting records of companies that carry out leasing operations, as well as of companies that use goods in the leasing system shall be carried out according to accounting regulations in force. " 24. Article 21 shall read as follows: "" Art. 21. -(1) Leasing contracts which have as their object the use of immovable property shall be entered in the land register. (2) If changes occur regarding the premises of the lessee/user or the lessor/financier or changes with regard to the legal situation of the property, the person concerned must proceed to the notification of the other party and rectification in the land book. (3) The stamp duties and the judicial stamp, due in case of conclusion of a sales contract at the end of the lease, as a result of the expression of the option of the place/user, will be calculated according to the residual value of to the good, as defined in art. 2 lit. c). " 25. Article 22 shall read as follows: "" Art. 22. -(1) The provisions of this ordinance also apply where a natural or legal person sells a good to a leasing company, in order to use it in the leasing system, with the right or redemption obligation at the end of the contract of leasing. (2) It is also permitted to redeem the good object of a lease by the supplier from the lessor/financier. " 26. Article 23 shall read as follows: "" Art. 23. -The goods subject to a leasing contract can be used in the leasing system by several companies, if between them and the lessor/financier a contract has been concluded in this regard. They are subject to the provisions of this ordinance and the leases concluded by two or more leasing companies, as a lessor/financier, if between them and the lessee/user has concluded a contract in this regard. " 27. Article 24 shall read as follows: "" Art. 24. -(1) Leasing companies may conclude leases with the object of: a) the realization of a construction on the property land of the place/user, in which case the parties may agree that the repayment period of the leasing rates begins to flow from the reception of the construction and gives the lessor/financier a ownership of the construction and a right of use on the land, if the parties did not agree otherwise; b) the acquisition of the right to build a construction on the land of the locator/financier, in which case the parties may agree that the repayment period of the leasing rates begins to flow from the reception of the construction and confers the location/user a right of ownership of the construction and a right of use on the land, if the parties did not agree otherwise; c) existing constructions, property of the lessor/financier or to be purchased by him, built on the property land of the lessor/financier or to be purchased by him or on land over to which the lessor/financier has a right of superficie. In this case, the lessor/financier will transfer the constructions to the leasing system and, if applicable, will finance the cost of the land to be purchased and will have a property right on construction and a property or property right. superficie on the land, as the case may be, while the lessee/user will have a right of use both on the construction and on the land; d) existing constructions, property of the locator/financier, built on the property land of the lessor/financier or on a property land of a third party, on which the lessor/financier has a right of use; the parties may agree that the repayment period of the lease rates begins to flow from the reception of the construction by the lessee/user. In this situation, the lessor/financier will have a property right over the construction and a property right or, as the case may be, a right of use on the land, if the parties did not agree otherwise. (2) The leasing contract with immovable property may be concluded for a duration established by the parties, in compliance with the provisions of art. 7. (3) The provisions of art. 16 16 are also applicable in the case of the lease with immovable property. " 28. Article 26 shall read as follows: "" Art. 26. -In case of damage registration and the collection of the amounts from the insurance of the goods of the leases, the parties may agree to extinguish the mutual claims by compensation, under the law. " 29. Article 27 shall read as follows: "" Art. 27. -(1) Mobile goods that are introduced into the country by Romanian users, natural or legal persons, on the basis of leases concluded with leasing companies, foreign legal entities, fall under the customs procedure of admission temporary, for the duration of the lease, with the total exemption from the obligation to pay the amounts related to import rights, including customs guarantees. (2) The movable goods that are introduced into the country by the leasing companies, Romanian legal entities, fall within the customs import regime, with the exemption from payment of the amounts related to all import rights. (3) If the user, from the fault of the leasing company or the supplier, has not exercised the right of option provided in the contract regarding the extension of the lease term or the acquisition of the property, and the good has not been returned, the user is obliged to pay the customs duties relative to the residual value of the property. The basis for the calculation of the customs duties may not be less than 20% of the entry value of the good, regardless of whether the parties have agreed a lower residual value. (4) In case of purchase of goods introduced in the country under the conditions of para. ((1) and (2), the user is obliged to pay the customs duty calculated at the residual value of the good from the moment of conclusion of the sales contract. The basis for the calculation of the customs duties may not be less than 20% of the entry value of the property, irrespective of whether the parties have contractually agreed a lower residual value. ((5) The term under which the goods are to be returned or to receive a new customs destination shall be that agreed between the parties by the lease. The time limit within which the goods are to be returned or receive a new customs destination may not be more than 7 years from the date of introduction into the country of the good, whether the parties have contractually agreed a longer duration, with the exception of the means for air transport for which that period is 14 years. ((6) The goods covered by a leasing contract concluded between the les/funders, Romanian legal entities, with local residents/users, natural or legal persons, and which are exported from Romania under these contracts in the temporary customs export procedure, in accordance with the legal provisions in the matter. (7) The term within which the goods object of a lease, concluded under the conditions of par. ((6), to be returned to the lessor/financier or to receive a new customs destination is the one agreed between the parties by the lease, but may not be more than 7 years from the date of export from the country of that good. " 30. After Article 27, a new Article shall be inserted, Article 28, with the following contents: "" Art. 28. -(1) The leasing companies operating in Romania have the reporting obligation and the right to consult the bank risk information at the National Bank of Romania-Central Bank Risk. (2) The leasing companies referred to in par. ((1) must comply with the reporting obligations, within 6 months from the date on which the National Bank of Romania will issue rules on the reporting procedure. " + Article II Obligation to increase the share capital at the level of the national currency equivalent-leu-of the amount of 200,000 euros, provided for in art. 19 19 para. (2) of Government Ordinance no. 51/1997 on leasing operations and leasing companies, republished, with subsequent amendments and completions, as well as with those brought by this law, for existing leasing companies on the date of entry into force of this law, must completed by 31 December 2006. + Article III This law shall enter into force 30 days after its publication in the Official Gazette of Romania, Part I. + Article IV Government Ordinance no. 51/1997 on leasing operations and leasing companies, republished in the Official Gazette of Romania, Part I, no. 9 of January 12, 2000, with subsequent amendments and completions, as well as with those brought by this law, will be republished in the Official Gazette of Romania, Part I, giving the texts a new numbering. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT BOGDAN OLTEANU SENATE PRESIDENT NICOLAE VACAROIU Bucharest, July 6, 2006. No. 287. -------