One of the most important institutions in the insolvency procedure, often used unjustifiably by creditors dissatisfied with the fact that the sums entered in the definitive table of claims have not been recovered, is that of attracting the patrimonial responsibility of the persons responsible for the debtor’s insolvency, usually the administrator.
Thus, at the request of the judicial administrator or the liquidator, the syndic judge may order that a part or the entire liability of the debtor, which has become insolvent, without exceeding the damage causally related to that act, be borne by the members of the management and/or supervisory bodies, as well as by any other person who contributed to the insolvency of the debtor.
The acts likely to constitute a reason for the request for liability are provided for in Article 169 of the Insolvency Law, namely:
a) They used the assets or credits of the legal entity for their own benefit or for that of another person;
b) They engaged in production, trade, or service provision activities for personal benefit, under the cover of the legal entity;
c) They ordered, for personal benefit, the continuation of an activity that obviously led the legal entity to default;
d) They kept fictitious accounting records, caused some accounting documents to disappear, or did not keep accounts in accordance with the law;
e) They diverted or concealed a part of the legal entity’s assets or artificially increased its liabilities;
f) They used ruinous means to procure funds for the legal entity, for the purpose of delaying default;
g) In the month preceding the cessation of payments, they paid or ordered payment to a creditor preferentially, to the detriment of other creditors;
h) Any other intentional act that contributed to the debtor’s insolvency.
The judicial or liquidation administrator has the obligation to file such a request whenever they identify the persons guilty of the insolvency situation. If these persons have not been identified, the action may be brought by the president of the creditors’ committee or, in his absence, by a creditor designated by the creditors’ meeting. Additionally, any creditor holding more than 30% of the value of the claims may file this action.
The action is subject to a statute of limitations of 3 years from the date when the person who contributed to the occurrence of insolvency was known or should have been known, but no later than the date of publication in the BPI of the report on the causes that led to the opening of the insolvency procedure.
To prevent the hiding of assets until the cause is resolved, the judicial administrator or the creditors’ committee, as appropriate, will have the possibility to file a request for the institution of precautionary measures.
In the event of admission of the request, forced execution is carried out by the judicial executor according to the Civil Procedure Code. Additionally, the person against whom a final decision of liability has been pronounced can no longer hold the position of administrator for a period of 10 years, and if they hold such a position, they will be deprived of rights for a period of 10 years.
Our company specializes in both formulating the liability request and in carrying out all the necessary defenses in such a case, specialized assistance from a lawyer being essential.
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Daniel Pavelescu – Attorney at Law