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Law No. 169 Of 14 July 2010 For The Modification And Completion Of The Law #. 85/2006 Concerning Insolvency

Original Language Title:  LEGE nr. 169 din 14 iulie 2010 pentru modificarea şi completarea Legii nr. 85/2006 privind procedura insolvenţei

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LEGE no. 169 169 of 14 July 2010 to amend and supplement Law no. 85/2006 on insolvency proceedings
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 505 505 of 21 July 2010



The Romanian Parliament adopts this law + Article I Law no. 85/2006 on insolvency proceedings, published in the Official Gazette of Romania, Part I, no. 359 of 21 April 2006, as amended and supplemented, shall be amended and supplemented as follows: 1. In Article 3, point 1, point a) is amended and shall read as follows: "a) insolvency is presumed to be manifest when the debtor, after 90 days after maturity, has not paid its debt to the creditor; the presumption is relative;". 2. In Article 3, paragraphs 6, 12, 25 and 26 shall be amended and shall read as follows: " 6. by the creditor entitled to request the opening of insolvency proceedings shall be understood the creditor whose claim against the debtor's patrimony is certain, liquid and chargeable for more than 90 days. Creditors, including the state employees, will be able to request the opening of insolvency proceedings only if, after the compensation of mutual debts, of any nature, the amount due to them will exceed the amount provided for in item 12 12; ......................................................................................... 12. the threshold value represents the minimum amount of the claim, in order to be introduced the creditor's request. This is 45,000 lei, and for employees, of 6 gross average salaries on economy/per employee; ......................................................................................... 25. the simplified procedure is the procedure provided for by this law, whereby the debtor who meets the conditions provided in art. 1 1 para. (2) enter directly into the bankruptcy procedure, either with the opening of the insolvency procedure or after an observation period of maximum 50 days, during which the elements provided in art. 1 1 para. ((2) lit. c) and d); 26. the special administrator shall be the representative appointed by the general meeting of the debtor's shareholders/associates, the legal person, empowered to carry out on his behalf and on his account the necessary administration documents during the periods of procedure when the debtor is allowed to operate and represent their interests in the procedure during the period during which the debtor has been raised the right of administration. The general meeting of shareholders, associates or members of the legal person will be convened by the judicial administrator or liquidator for the appointment of the special administrator, within a maximum of 10 days from the opening of the procedure or, after case, from the lifting of the debtor's right to manage his wealth. The general meeting will be chaired by the judicial administrator or liquidator, as the case may be. If the assembly of associates/shareholders convened according to this point does not appoint a special administrator, the debtor will be raised the right of administration, if it has not been raised, and the debtor, respectively the associations/shareholders are deprived of the rights recognised by the procedure and which are exercised by the special administrator. If a special administrator has not been appointed, for the resolution of the actions provided in art. 46 and those regulated by art. 79 and 80, the debtor shall be represented by a specially designated curator of the statutory governing bodies in the performance of the function at the time of the opening of the proceedings. The designation will be made by the syndic judge in the council chamber and without summoning the parties. If subsequently the assembly of the associates/shareholders chooses a special administrator, it will take over the procedure at the stage in which it is found at the date of designation; ". 3. In Article 4, paragraph 4 shall be amended and shall read as follows: " (4) In the absence of availability in the debtor's account, the liquidation fund will be used, payments to be made in accordance with the provisions art. 37 37 para. (4) of Government Emergency Ordinance no. 86/2006 on the organisation of the activities of insolvency practitioners, approved with amendments and additions by Law no. 254/2007 ,, with subsequent amendments and completions, on the basis of a forecast budget. " 4. Article 4 (5) shall be repealed. 5. In Article 4 (6), the letter a) shall be amended and shall read as follows: " a) the application of a percentage of 50% to the fees payable at the office of the trade register for authorization constituting persons subject to registration in the commercial register, with amendments to their acts, deeds and mentions, and all records in the commercial register, authorization of operation and issuance of specific documents, verification and/or reservation, transmission/obtaining/issuance of documents and/or information provided by law; ". 6. Article 4 (6), point b) shall be repealed. 7. In Article 6, paragraph 1 shall be amended and shall read as follows: "" Art. 6. -(1) All the procedures provided for by this law, except for the appeal provided for in art. 8, are of the jurisdiction of the tribunal or, if applicable, of the commercial tribunal, in whose constituency the debtor is based. If a special insolvency section has been created in the court or commercial tribunal, it shall be responsible for carrying out the procedures provided for in this Law. " 8. In Article 6, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: "(1 ^ 1) The debtor's office shall be the one with which it appears in the commercial register, respectively in the register of agricultural companies or in the register of associations and foundations." 9. Article 6 (2) shall be repealed. 10. in Article 6, after paragraph 2, a new paragraph (3) is inserted, with the following contents: " (3) The Tribunal or, as the case may be, the commercial tribunal, in whose territorial constituency the debtor has its seat on the date of referral to the court with an application for the opening of insolvency proceedings, remains competent to settle the case regardless of subsequent changes of the debtor's premises. ' 11. In Article 7, paragraph (3 ^ 1) is amended and shall read as follows: " (3 ^ 1) By exception to the provisions of par. (1), the first citation and the communication of procedural documents to persons against whom an action is introduced, pursuant to the provisions of this law, after the opening of insolvency proceedings, will be carried out, according to the Code of Civil Procedure, and The Bulletin of insolvency proceedings. The courts will transmit the procedural documents in question, ex officio, for publication in the Bulletin of insolvency proceedings. " 12. In Article 8, paragraphs 2 and 3 shall be amended and shall read as follows: " (2) The term of appeal is 7 days from the communication of the judgment, if the law does not provide otherwise. (3) The appeal will be judged by specialized complete, within 10 days from the registration of the file to the court of appeal. The citation of the parties on appeal and the communication of the decisions rendered are made according to the provisions of the The courts will transmit the procedural documents in question, ex officio, for publication in the Bulletin of insolvency proceedings. In order to settle the appeal, they shall be sent to the court of appeal, in copy certified by the chief clerk of the tribunal, only the acts that interest the resolution of the appeal, selected by the syndic judge. If the court of appeal considers it necessary and other acts of the substantive file, it shall consider the interested parties to submit them in certified copy. " 13. In Article 11 (1), point d) shall be amended and shall read as follows: " d) the confirmation, by conclusion, of the judicial administrator or the liquidator appointed by the meeting of creditors or the creditor holding more than 50% of the value of the receivables, as well as of the negotiated fee. If there are no appeals against the decision of the creditors ' meeting or the decision of the creditor holding more than 50% of the value of the claims, the confirmation shall be made in the council chamber, without citing the parties, within 3 days of publication in the Bulletin of the insolvency proceedings of the decision of the creditors ' meeting or, as the case may be, of the decision 14. in Article 12, after paragraph 2, a new paragraph (3) is inserted, with the following contents: "(3) The decisions rendered by the syndic judge shall be reasoned by him within 10 days from the date of delivery of the judgment." 15. In Article 16, paragraph 4 shall be amended and shall read as follows: " (4) During the first meeting of the creditors ' meeting, they will be able to choose a committee of 3 or 5 creditors between those with guaranteed receivables, state employees and chirographers, among the top 20 creditors in order of value, who volunteer; the committee thus appointed shall replace the committee previously designated by the syndic judge. " 16. in Article 20 (1), points a) and b) shall be amended and shall read as follows: " a) the examination of the economic situation of the debtor and of the documents submitted according to the 28 28 and 35 and the preparation of a report proposing either the entry into the simplified procedure or the continuation of the observation period within the general procedure and the submission of that report to the syndic judge, within a time limit set by him, but which shall not exceed 20 days after the appointment of the judicial administrator; b) examination of the debtor's activity and preparation of a detailed report on the causes and circumstances that led to the occurrence of the state of insolvency, with the mention of the persons to whom it would be imputable, and on the existence of the premises of employment their responsibility, under the conditions of art. 138, as well as on the real possibility of effective reorganization of the debtor's activity or of the reasons that do not allow the reorganization and submission of that report to the syndic judge, within a deadline set by him, but which will not be able to exceed 40 days after the appointment of the judicial administrator; '. 17. In Article 21, paragraphs 3 and 4 shall be amended and shall read as follows: " (3) The appeal must be registered within 3 days from the submission of the report provided in par. ((1). (4) The syndic judge will settle the appeal, within 5 days from its registration, in the council chamber, with the summoning of the objector, the judicial administrator and the committee of creditors, being able, at the request of the objector, to suspend executing the contested measure. ' 18. In Article 25, letter a) is amended and shall read as follows: " a) the examination of the debtor's activity on which the simplified procedure is initiated in relation to the factual situation and the preparation of a detailed report on the causes and circumstances that led to insolvency, with the mention of the persons to whom they would be imputable and the existence of the premises of their liability under the conditions of art. 138, and the submission of that report to the syndic judge within a deadline set by him, but which will not be able to exceed 40 days after the appointment of the liquidator, if a report with this object had not been previously drawn up by the judicial administrator; ". 19. In Article 27, after paragraph 1, two new paragraphs are inserted, paragraphs 1 ^ 1 and 1 ^ 2, with the following contents: " (1 ^ 1) If at the expiry date of the term provided in par. (1) the debtor is engaged, in good faith, in extrajudicial negotiations for the restructuring of his debts, he has the obligation to apply to the tribunal an application to be subject to the provisions of this law, within 5 days from the failure negotiations. ((1 ^ 2) If during the negotiations conducted under an ad hoc or preventive mandate procedure the debtor becomes insolvent, but there are serious indications that the results of the negotiations could be capitalized in the short term by the conclusion of an extrajudicial agreement, the debtor, in good faith, must introduce the request for the opening of the procedure under the conditions and the deadline provided in par. ((1 ^ 1). Otherwise, the debtor must enter the application for the opening of insolvency proceedings within 30 days of the occurrence of the state of insolvency. " 20. Article 27 (5) shall be amended and shall read as follows: "(5) The debtor's request will be tried urgently within 5 days in the council chamber, without citing the parties." 21. In Article 32, paragraph 2 shall be amended and shall read as follows: " (2) By concluding the opening of the procedure the syndic judge will order the judicial administrator or, as the case may be, the liquidator to make the notifications provided in art. 61. If, within 10 days of receipt of the notification, the creditors oppose the opening of the proceedings, the syndic judge shall, within 5 days, hold a meeting to which the judicial administrator, debtor and creditors who are to be summoned shall be summoned. oppose the opening of the proceedings, following which all oppositions will be dealt with by a sentence at once. Admitting the opposition, the syndic judge will revoke the opening of the proceedings. The subsequent opening of the procedure, at the request of the debtor or creditors, will not be able to change the date of the insolvency. " 22. Article 33 (3) shall be amended and shall read as follows: " (3) At the request of the debtor, the syndic judge may oblige the creditors who have entered the application to record, within 5 days, at a bank, a bail of no more than 10% of the value of the receivables. Bail will be returned to creditors if their application is upheld. If the application is rejected, the bail will be used to cover the damage suffered by the debtors. If the bail is not recorded, the application will be rejected. " 23. Article 35 is amended and shall read as follows: "" Art. 35. -Within 10 days from the opening of the procedure, according to the provisions of art. 33 33 para. ((4) or, as the case may be, art. 33 33 para. (6), the debtor is obliged to submit to the case file the documents and information provided in art. 28 28 para. ((1). ' 24. Article 36 is amended and shall read as follows: "" Art. 36. -From the date of opening of the proceedings, all judicial, extrajudicial actions or enforcement measures shall be suspended for the realization of claims on the debtor or his assets. " 25. In Article 41, paragraph 2 shall be amended and shall read as follows: " (2) By exception to the provisions of par. ((1), the secured claims shall be entered in the definitive table up to the amount of the guarantee established by the assessment, ordered by the judicial administrator or the liquidator If the valuation of the assets on which the guarantee is carried will be made at a price higher than the amount entered in the definitive or definitively consolidated table, the favorable difference will return to all the guaranteed creditor, even if part of its claim has been entered as a chirograph claim, until the coverage of the main claim and the accessories to be calculated. ' 26. Article 53 is amended and shall read as follows: "" Art. 53. -The assets disposed of by the judicial administrator or liquidator, in the exercise of his duties provided for by this law, are acquired free of any tasks, such as mortgages, real securities or retention rights, of any kind, or precautionary measures, including precautionary measures put in place during the criminal proceedings. " 27. In Article 54, paragraphs 1 and 3 shall be amended and shall read as follows: "" Art. 54. -(1) The judicial administrator shall draw up and submit to the syndic judge, within the time limit set by him, which shall not be able to exceed 20 days after his appointment, a report proposing either entry into the simplified procedure or the continuation of the observation period in the general procedure. ......................................................................................... (3) The syndic judge will submit the proposal provided in par. ((2), regarding the bankruptcy of the debtor in the simplified procedure, the debate of the parties in a public meeting, which will take place within 15 days from the receipt of the report of the judicial administrator. " 28. In Article 59, paragraph 1 shall be amended and shall read as follows: "" Art. 59. -(1) The judicial administrator or, as the case may be, the liquidator, in the case of the simplified procedure, shall draw up and submit to the syndic judge, within the time limit set by the syndic judge, but which shall not be able to exceed 40 days from the date of designation the liquidator, a report on the causes and circumstances that led to the occurrence of the insolvency of the debtor, with the mention of the persons to whom it would be imputable. " 29. in Article 62 (1), points b)-d) shall be amended and shall read as follows: " b) the time limit for the registration of the application for admission of claims on the debtor's estate, which shall be no more than 45 days after the opening of the proceedings, as well as the requirements for a registered claim to be considered valid; c) the term of verification of claims, preparation, display and communication of the preliminary table of claims, which will not exceed 20 days for the general procedure or, respectively, 10 days, in the case of simplified procedure, from the expiry of the term provided in lit. b); d) the deadline for finalizing the table of receivables, which will not exceed 15 days in the case of the general and simplified procedure, from the expiry of the deadline corresponding to each procedure, provided in lett. c); ". 30. In Article 64, paragraph (5) shall be amended and shall read as follows: " (5) Titulation of claims under suspensive condition at the time of the opening of proceedings, including claims whose recovery is subject to the prior execution of the principal debtor, will be entitled to vote and participate in distributions only after that condition has been met. ' 31. In Article 73, paragraph 2 shall be amended and shall read as follows: "" (2) Appeals must be submitted to the court within 5 days of publication in the Bulletin of the insolvency proceedings of the preliminary table, both in the general procedure and in the simplified procedure. " 32. Article 74 (3) shall be repealed. 33. In Article 77, paragraph 2 shall be amended and shall read as follows: "(2) The operations of publication in the Bulletin of the insolvency proceedings of the procedural documents issued by the courts and the judicial administrator/liquidator in the framework of the insolvency proceedings shall be carried out free of charge." 34. In Article 77, after paragraph 2, a new paragraph (3) is inserted, with the following contents: " (3) The procedural documents issued by the judicial administrator and the liquidator who, according to the present law, are also subject to the advertising formality through the commercial register, together with the advertising through the Bulletin of insolvency proceedings, shall be submitted to The bulletin of insolvency proceedings, and the registration in the commercial register will be operated ex officio, free of charge. " 35. In Article 80, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: " (1 ^ 1) Provisions of para. ((1) lit. d)-f) are not applicable to acts concluded, in good faith, in the execution of an agreement with creditors, concluded as a result of extrajudicial negotiations for the restructuring of the debtor's debts, subject to the agreement being such lead, reasonably, to the financial recovery of the debtor and not to cause harm and/or discrimination against creditors. The above provisions also apply to legal acts concluded under the procedure provided by Law no. 381/2009 on the introduction of preventive composition and ad hoc mandate. " 36. In Article 81, paragraph 1 shall be amended and shall read as follows: "" Art. 81. -(1) The action for the cancellation of fraudulent acts concluded by the debtor at the expense of creditors, as well as for the cancellation of the constitutions or transfers of patrimonial rights, to which art. 79 and 80, may be introduced by the judicial administrator/liquidator within one year from the expiry date of the deadline set for the preparation of the report provided for in art. 20 20 para. ((1) lit. b), but not later than 16 months from the date of opening of the procedure. " 37. In Article 95, paragraph 3 and point E of paragraph 6 shall be amended and shall read as follows: " (3) The execution of the reorganization plan will not be able to exceed 3 years, counted from the date of confirmation. Payment terms established by contracts-including credit or leasing-can be maintained through the plan, even if they exceed the 3-year period. These deadlines can also be extended, with the express agreement of creditors, if they were initially shorter than 3 years. After carrying out all the obligations in the plan and closing the reorganization procedure, these payments will continue according to the contracts resulting from it. ......................................................................................... E. the liquidation of all or some of the assets of the debtor's estate, separately or in block, free of any tasks, or the payment of them to the creditors of the debtor, in the account of the receivables they have against the debtor's wealth. The payment of the debtor's assets to his creditors will only be able to be carried out on the prior condition of their written agreement on this way of extinguishing their claim; ". 38. In Article 96, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: " (1 ^ 1) List of suppliers referred to in par. (1), as well as their current claims will be submitted by the debtor together with the other documents provided in art. 28 28. " 39. Article 98 (2) and (3) shall be repealed. 40. Article 99 (1) shall be repealed. 41. In Article 99, paragraph 2 shall be amended and shall read as follows: " (2) The judicial administrator shall publish within 5 days from the submission of the plan an announcement regarding it in the Bulletin of insolvency proceedings, with the indication of the one who proposed it, of the date when the plan will be voted on in the assembly creditors, as well as the fact that postal voting is admissible. " 42. In Article 99, after paragraph 2, a new paragraph (2 ^ 1) is inserted, with the following contents: " (2 ^ 1) The meeting of the meeting of creditors in which the vote on the reorganization plan will be expressed will be held within 20-30 days from the publication of the notice. The reorganization plan, including the annexes, will be communicated in electronic format, scanned, through the care of the judicial administrator, by e-mail or by post on its website. " 43. In Article 100, paragraph (5) shall be amended and shall read as follows: "" (5) Creditors who, directly or indirectly, control, are controlled or are under joint control with the debtor, within the meaning of the capital market legislation, may attend the meeting, but may vote on the plan only if it grants them less than they would receive in the case of bankruptcy. " 44. In Article 101 (1), the introductory part shall be amended and shall read as follows: "" Art. 101. -(1) The syndic judge shall set the time limit for the confirmation of the plan within 15 days of the court filing by the judicial administrator of the minutes of the meeting of the creditors by which it was approved. The syndic judge may ask an insolvency practitioner to express an opinion on the possibility of carrying out the plan, before his confirmation. The plan will be confirmed if the following conditions are met cumulatively: ". 45. In Article 101 (1), point D is amended and shall read as follows: "" D. will be considered non-disadvantaged claims and will be considered to have accepted the plan the claims to be paid in full within 30 days of the confirmation of the plan or in accordance with the credit or leasing contracts resulting from it; ". 46. In Article 101 (1), a new letter, letter E, is inserted after point D, with the following contents: "" E. the plan complies with art. 95 95. " 47. In Article 101, after paragraph 4, a new paragraph (5) is inserted, with the following contents: " (5) The modification of the reorganization plan can be made at any time during the procedure, in compliance with the voting and confirmation conditions provided by this law. If the amendment of the plan is proposed by the debtor, it will have to be approved by the general meeting of shareholders/associates. " 48. In Article 107 (2), the letter e) shall be amended and shall read as follows: " e) the preparation by the judicial administrator and the handover to the liquidator, within a maximum of 5 days after the bankruptcy, within the general procedure, of a list containing the names and addresses of the creditors and all their claims to the the date of bankruptcy, with the indication of those born after the opening of the procedure; ". 49. In Article 116, paragraph 2 shall be amended and shall read as follows: "" (2) The liquidation will begin immediately after the completion by the liquidator of the inventory and the submission of the evaluation report. The goods will be able to be sold in block-as a whole in working order-or individually. The method of sale of goods, namely public auction, direct negotiation or a combination of the two, will be approved by the meeting of creditors, based on the proposal of the liquidator. The liquidator shall submit to the general meeting of creditors and the sales regulations corresponding to the sales modality for which they opt 50. In Article 121 (1), a new point shall be inserted after point 1, point 1 ^ 1, with the following contents: "" 1 ^ 1. the claims of the secured creditors born during the insolvency proceedings after the confirmation of the reorganization plan, as part of this plan. These claims comprise capital, interest, increases and penalties of any kind; '. 51. In Article 121 (1), point 2 is amended and shall read as follows: "2. the claims of secured creditors, including all capital, interest, increases and penalties of any kind, as well as expenses, for claims born before the opening of the procedure." 52. In Article 123, point 3 is amended and shall read as follows: "" 3. receivables representing loans, with interest and related expenses, granted after the opening of the procedure, as well as receivables resulting from the continuation of the debtor's activity after the opening of the procedure 53. In Article 138, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: " (1 ^ 1) In the case of payments provided in par. ((1) lit. g), the liability of the legal representative of the legal person will not be able to be employed if they were carried out, in good faith, in the execution of an agreement with the creditors, concluded as a result of extrajudicial negotiations for the restructuring its debts, subject to the agreement that it was likely to lead, reasonably, to the financial recovery of the debtor and not to have been intended to harm and/or discriminate against creditors. In the report drawn up in accordance with the provisions of 59 59 para. (1), the judicial administrator/liquidator will specify whether the payments provided in par. ((1) lit. g) have been carried out in the execution of such an agreement. The above mentioned provisions will also apply if the agreement is carried out within the framework of the procedure provided by Law no. 381/2009 .. " 54. In Article 138, paragraph 3 shall be amended and shall read as follows: " (3) If the judicial administrator or, as the case may be, the liquidator did not indicate the persons culpable by the debtor's state of insolvency and/or decided that it is not appropriate to introduce the action provided in par. ((1), it may be introduced by the chairman of the creditors 'committee following the decision of the creditors' meeting or, if the creditors 'committee was not constituted, by a creditor appointed by the creditors' It may also bring this action, under the same conditions, to the creditor holding more than 50% of the value of the claims made at the credit table. ' 55. In Article 138, after paragraph 4, two new paragraphs are inserted, paragraphs 5 and 6, with the following contents: " (5) The application made pursuant to paragraph 1. ((1) or, as the case may be, para. (3) will be judged separately, forming a file that will carry the same number with the background file and to which the word "bis" will be added. (6) Where a decision has been made to reject the action brought under paragraph 1. ((1) or, as the case may be, para. (3), the judicial administrator/liquidator who does not intend to appeal against it shall notify the creditors of his intention. If the general meeting or the creditor holding more than half of the value of all claims decides that the appeal is required, the judicial administrator must make the appeal, according to the law. " 56. Article 139 is amended and shall read as follows: "" Art. 139. -The action provided in art. 138 is prescribed within 3 years. The prescription begins to run from the date on which the person who caused the occurrence of the state of insolvency was known or had to be known, but not later than 2 years after the date of the opening of the procedure. " 57. Article 140 is amended and shall read as follows: "" Art. 140. -Amounts submitted according to art. 138 138 para. (1) will enter into the debtor's estate and will be intended, in case of reorganization, to pay the receivables according to the payment schedule, to complete the funds necessary to continue the debtor's activity, and in case of bankruptcy, to cover the liability. " 58. Article 154 ^ 1 shall be repealed. + Article II Law no. 85/2006 on insolvency proceedings, published in the Official Gazette of Romania, Part I, no. 359 of April 21, 2006, with subsequent amendments and completions, as well as with those brought by this law, will be republished, 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. (1) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT ROBERTA ALMA ANASTASE SENATE PRESIDENT MIRCEA-DAN GEOANA Bucharest, July 14, 2010. No. 169. -------