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49

The rights of creditors and the purpose of insolven cy proceedings in
Romanian law

Lumini ța TULEA ȘCĂ

Faculty of Law, Romanian-American University, [anonimizat]

Abstract: The insolvency approach and the protection of the c reditors’ rights are regulated in all the national
laws and the general policies promoted in this matt er are in accordance with the international trends. In all the
cases, the insolvency is “treated” by means of a sp ecial procedure, the main differences consisting in the
purpose targeted by this procedure, by the means us ed for reaching the purpose and by the main feature s of
the procedure. Undoubtedly, the rights of the credi tors are protected and achieved as far as the insol vency law
contains objectives suitable to their interests. By this paper we intend to determine whether the purp ose of the
insolvency procedure is only the one of accomplishi ng the rights of the creditors of the „bankrupted”
entrepreneur, by the collective and equalitarian pa yment of the same, or, if the case, of a secondary and
implicit purpose of the insolvency procedure: finan cial recovery of the debtor’s activity.
Keywords: bankruptcy; debts payment; financial recovery

1 Introduction

In the case of any business failure we encounter a common issue: the debtor cannot fully pay all its
creditors. The creditors, without a proper legal re gulation of insolvency, would react to this problem s
fighting for the creditor’s assets and trying to ob tain what is payable to them before the other credi ts
proceed in the same manner. In this type of battle, some of the creditors would win, and some would
lose (Davis, 2011).
On the other hand, the traders, facing the current or the imminent financial crisis, try to place
themselves under the protection of the tribunal blo cking the enforcements (writs of enforcement)
introduced by the creditors, the increase of debts by interests and/or additional penalties, trying a new
start-up, by judicial reorganization of their activ ity.
The recovery of the insolvent debtors’ activity may be of interest for their creditors, too, if they w ould
not be able to obtain the cover of their debts from the liquidation of the debtor’s assets.
This point of view does not include the aggressive creditors using the insolvency procedure as means
of constraint for obtaining a rapid pay off of thei r debts from the solvable debtors threaten and
panicked by the introduction of a request for openi ng the „bankruptcy” procedure.
In this context, basically, the purpose of any inso lvency procedure is the payment of the creditors,
pari passu, according to the equality of treatment of such cred itors (Goode, 2005, p.56) by any of the
means provided by the law (Turcu, 2005, p.287; Schi au, 2001, p.81).
Moreover, the insolvency procedure has the nature o f a remedy and, only in the last instance, it
represents a collective enforcement procedure again st the debtor’s fortune. This main feature is
perfectly compatible with the purpose of the proced ure, considering that only a recovery of the

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50 debtor’s activity by the improvement of its financi al situation might provide for the payment of all t he
amounts of money payable to the creditors.
As above indicated, we will analyze and determine w hether the purpose of the insolvency law is solely
the collective providing for all the creditors of t he „bankrupted” entrepreneur or if there is also a
secondary and implicit purpose of the insolvency pr ocedure: financial recovery of the debtor’s activit y.
Firstly, we will consider the fundamental principle s of the insolvency procedure as they have been
created by the efforts of the international institu tions and bodies concerned by this issue.
The tendency and the content of the European laws i n the matter of insolvency will represent another
pillar of our analysis considering the need to harm onize the concepts and ideas but also the adoption of
the most adequate approaches for the handling of bu siness failure.
And last, but not least, the most important analyse s and conclusions of our survey shall consider the
Romanian law provisions on insolvency.

2 The global policies regarding the creditors’ pro tection and the purpose of the
insolvency procedure

After the Asian crisis of the 1990s, the internatio nal efforts focused on the uniformization of the
insolvency approach differences, determining major international authorities to draft guidelines meant
to coordinate and to guide the domestic and Europea n laws (Tomasic, 2006, p.5).
As one of the major international institutions, the World Bank has an important position when it comes
to imposing a global policy regarding the protectio n of the creditors in the insolvency procedure and,
by assuming this status, it has drafted in April 20 01 “Principles and Guidelines for Effective
Insolvency and Creditor Rights Systems”.
The document, revised in 2005, is based on the most advanced international practice in the matter of
ideas regarding the insolvency approach (Uttamchand ani, 2006).
In the context of maintaining the diversity of the legislative formulas regarding the treatment of
insolvency, the Principles of the World Bank are in dicating the coordinates of a truly effective legal
framework, coordinates that should represent the ma in objectives of any legal provisions regarding
insolvency.
In its principles, the World Bank considers that ea ch state has its own different approaches and
methods in regulating the insolvency, but, for bein g effective, an insolvency system should consider
the following objectives: (i) maximizing the assets value of a company and granting the possibility fo r
the company to reorganize; (ii) finding a balance b etween the liquidation and the reorganization of th e
companies; (iii) granting a balanced and equal trea tment to all the creditors of the same rank and,
especially, to the national and foreign creditors; (iv) finding an adequate, effective and impartial
regulation for the insolvency cases; (v) preventing a premature dismemberment of the debtor’s
patrimony by the private creditors of the same; (vi ) adopting a transparent procedure that would
encourage the information gathering and disseminati on; (vii) recognizing the rights of the existing
creditors and the compliance with the priority rank of the debts established based on a predictable an d
well-determined process; (viii) finding a balance b etween the liquidation and reorganization, allowing
the rapid transformation of the procedures from a p rocedure to another; (ix) preventing the inadequate
or abusive use of regulations on insolvency; (x) es tablishing a regulation for cross-border insolvenci es
inclusively, on the recognition of foreign procedur es.
For the promotion and encouragement for adopting ef fective national systems in the matter of
insolvency and, in particular, of the insolvency of the trade companies, systems that would allow the
settlement of the financial difficulties of the deb tors, the United Nations Commissions for the

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51 international trade law (UNCITRAL) has drafted on J uly 25th, 2004, the legislative Guide on the
insolvency law from July 25th, 2004.
In accordance with the UNCITRAL principles regardin g the harmonization of the main regulations on
the trade activity, the Legislative Guide on Insolv ency offers a model, a possible base for any laws o n
insolvency, the national authorities and the legisl ative bodies further deciding between different
possible options and to choose the adequate one to the national or local context.
According to the view of the UNCITRAL Legislative G uide on Insolvency Law, endorsed by the
World Bank and by the International Monetary Fund, the main objectives of an effective regulation on
insolvency are: (i) maximizing the debtor’s assets value; (ii) establishing a balance between
liquidation and reorganization; (iii) securing an f air treatment to the creditors facing the same
situation; (iv) specifying a speedy, effective and impartial procedure for insolvency; (v) preserving the
debtor’s assets for a fair distribution of such ass ets among the creditors; (vi) recognizing the right s of
the existing creditors and determining clear rules on the determination of the priority debts; (vii)
establishing a set of measures that would allow the information gathering and dissemination; (viii) th e
law on insolvency must contain provisions on both t he recovery as well as on the liquidation of the
debtor.
The Principles of the World Bank and the Legislativ e Guide of UNCITRAL reflect the current
conception according to which the reorganization is deemed to be the solution favourable for both the
debtor’s interests, as well as for the creditors’ i nterests, and not only for the best interest of the
unsecured and secured creditors.
In its turn, the European Bank for Reconstruction a nd Development (EBRD) identifies three possible
purposes of the existing laws on bankruptcy: (i) Th e fresh start policy– allowing the unfortunate but
honest debtor a fresh start free of the obligations and responsibilities consequent upon business
misfortunes; (ii) the equity policy – fostering the equitable distribution of a troubled debtor’s asse ts
through the equal sharing of losses by creditors of equal rank; (iii) the rescue policy – the restruct uring
and rehabilitation of a business to preserve jobs, pay creditors, produce a return for owners, and obt ain
the fruits of the enterprise (Daianu, Pislaru, & Vo inea, 2004, p.59).
In the EC Regulation no. 1346/2000 of the Council o n the insolvency proceedings we find, first of all,
general terminological specifications, sufficiently clear and precise, for determining the meaning of the
term: "insolvency proceedings".
Thus, insolvency proceedings will be those collecti ve insolvency proceedings which entail the partial
or total divestment of a debtor and the appointment of a liquidator (art.1 para.1 and art.2 let. a) of the
EC Regulation no.1346/2000).
In this foundation context, is beyond any doubt tha t, presently, the laws and principles on insolvency
tend to value the judicial recovery of the debtor’s activity, without affecting the creditors’ best
interests.
In this sense, the best actual example is the Engli sh Enterprise Act 2002 that manages to make the
distinction between the large majority of the insol vents that came to this state of financial failure, state
that did not involved any unfair or indifferent con duct and a small minority of insolvents that have
abused of their creditors in their faulty conduct.
Due to adopting new concepts on insolvency proceedi ngs, in 2006 alone, in England, the number of
mandatory liquidations decreased by 5% and the numb er of individual voluntary arrangements
between the debtors and the creditors increased to 92% (The Insolvency Service, 2007).
Therefore, in approaching the insolvency in a moder n and realistic manner, the central purpose of the
laws of capitalist economies is to encourage the co mpanies’ reorganization (Carpenaru, 2011, p.708)
considering, among others, that the bankruptcy affe cts not only the creditors and debtors, but also th e
company’s employees and, in case of monopole or pub lic utilities, the end consumers, also (Stiglitz,
2003).

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52 3 The rights of the creditors and the purpose of t he insolvency proceedings from the
Romanian laws perspective

From the aspect of the meaning of the equivalent le gal term for business failure, the Romanian law has
been consistent for several decades, basically defi ning it as representing that state of the debtor’s
patrimony that is characterized by the insufficient funds available for the due debts payment.
On the other hand, according to the law: “The purpo se ( a.n . of insolvency proceedings) is the set up of
a collective procedure for covering the liabilities of the insolvent debtor”- art.2 of the Law no. 85/ 2006
on the insolvency proceeding.
This purpose is reiterated by the legal finality of the procedure for judicial reorganization based on
which, the procedure “that applies to the debtor (… ) for paying the debts, according to the debts
payment schedule” –art.3 para.1 pct.20 of the Insol vency Law as well as the finality of the bankruptcy
procedure :” that applies to the debtor for the liquidation of i ts assets for covering its liabilities”- art.3
para.1 pct.23 of the Insolvency Law.
In such a terminological context, the priority of t he insolvency proceedings is represented by the
creditors’ interests, by the payment of debtor’s de bts towards such creditors by any of the means used
for achieving such purpose, “liabilities covering” representing, as rule, the full payment of the debt s
declared by the debtor (C ărpenaru, Neme ș, & Hotca, 2008, p.24-25; Piperea, 2007, p.147; Tur cu &
Stan, 2005, p.12)..
By this purpose of the insolvency proceedings, it i s obvious that our modern law does not have the
ability to adapt to the concepts existing in most o f the European countries regarding the system appli ed
to the troubled debtors.
Firstly, the insolvency proceedings cannot have a s ingle purpose, considering that, in fact, there are
two types of insolvency proceedings : the general insolvency proceedings, in which the d ebtor is
basically subject to both the procedure of judicial reorganization and bankruptcy, and to the simplifi ed
insolvency proceedings in which the debtors is subj ect solely to bankruptcy procedure.
When the law establishes one purpose for both types of insolvency proceedings: the set up of a
collective procedure for the cover of the liability of the insolvent debtor, it admits that, in realit y, is
completely under the influence of the traditional a pproach of insolvency and, on the other hand, it
recognizes that it does not consider the inherent a nd related to the procedure of judicial reorganizat ion:
the facility of company reorganization thus as to a llow the continuation of the commercial activity –
the activity that is under judicial investigation – , the keeping of the employees and the careful
examination of the debtor’s liabilities.
The objective is to save the enterprise, the fundam ental purpose of the judicial reorganization
procedure, the essence of the judicial reorganizati on being the continuation of the debtor’s activity,
activity that will also result in covering the debt or’s debts.
Only the liquidation procedure is the one “meant fo r eliminating the condemned economic enterprises”
(Ripert, Roblot, Delebeque & Germain, 2000, p.787) meant for eliminating “off the market of the
debtors undergoing the insolvency procedure” (Piper ea, 2007; Andre, 2007), of the enterprises which –
obviously – can no longer be saved, its objective b eing the liquidation of the debtor’ assets in the b est
conditions and in the best interest of its creditor s.
It is possible that by following a sole purpose: co vering the debtor’s liabilities (Mo țiu, 2009, p.73) can
only lead to the dramatic decrease of the cases of not proceeding with the reorganization procedure or
to the failure of it by the lack of an adequate con centration on the debtor’s activity recovery
opportunity ( for a different opinion: Piperea, 200 8, p.36-37).
On the other hand, the name of the Romanian law its elf: law on insolvency proceedings could might
lead to the association to the laws considering tha t the main purpose of the collective procedure is t he

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53 payment of the debts to the creditors even this mea ns the liquidation of the company (Guyon, 1999,
p.20).
We find the same name in the EC Regulation no. 1346 /2000 of the Council on the insolvency
proceedings as well as in the German Insolvency Co de became effective in 1999 (Insolvenzordnung,
InsO) (Insol International, 2011, p.90) recently an d significantly amended (Latham & Watking, 2011).
However, the European Regulation regarding the inso lvency does not regulate and does not intend to
regulate the procedure of company reorganization or recovery, applying only to the judicial liquidatio n
procedure: “The collective procedures occurred in t he context of debtor’s insolvency which entails the
partial or total divestment of a debtor and the app ointment of a liquidator.” – art. I paragraph 1 fro m
the Regulation 1346/2000/EC.
The objective of the German regulation on insolvenc y is the collective cover of the debts to the
creditors, by the liquidation of the debtor’s asset s and the distribution of the amounts thus obtained or,
by finding an arrangement by means of an insolvency plan, the main focus being on the company
preservation. An honest debtor shall be granted the possibility to be discharged and exempted from the
rest of its debts (art.1 in the Insolvenzordnung, I nsO).
The German law on insolvency grants priority to the debtor’s reorganization – as far as the debtor’s
company is viable- by three means of reorganization : the reorganization contract concluded between
the creditors and debtor, the reorganization based on the plan and the continuation of the company
activity the parties reaching an agreement regardin g the assets (the troubled company sells all the
assets or a part of it to a buyer interested in car rying on with its activity).
Therefore, the main purpose of the German procedure of insolvency: the payment of the debts to the
creditors shall have to always consider another mai n objective: the maintenance of the company
activity (Remmert, 2002, p.427). Moreover, the rece nt amendment of the German law on insolvency is
mainly focused, on the efficiency of the debtor’s p ossibilities of reorganization.
The Spanish Regulation on insolvency is also centre d on the insolvency proceedings, the enterprise
maintenance (Olmeda, 2008).
The obvious influence of the French law on the Roma nian law on insolvency is not that obvious when
it comes to the purposes of this law.
The French law indicates the purpose of the judicia l recovery procedure: to allow the follow-up of the
company’s activity, the keeping of the employees an d the examination of the debtor’s liabilities (art.
L.631-1 French commercial code) while the judicial liquidation procedure applies to the debtors that
are obviously impossible to recover financially and it is meant to establish the interruption of the
activity and liquidation of the debtor’s assets (ar t.L.640-1 French commercial code).
By the new regulations in the French law (Law no. 2 005-845 / July 2nd, 2005 regarding the enterprise’
saveguarding), the French law on the insolvent comp anies is reformed, however, such reformation
does not amend the essence of the French law on col lective procedures that aims to find solutions for
the reorganization of such companies.
The declared purpose of the Romanian insolvency pro ceedings may still be completed with the
objectives resulting from the analysis of the whole regime of insolvency, objectives that should have
been expressly provided by the law, however we do n ot consider that this would be the best solution
for completing major legislative gaps or for trying to amend the doctrine on the current conception
regarding the insolvency proceedings purpose (Turcu , 2007, p.297-298; Adam & Savu, 2007, p.7 &
p.79; Bufan, 2004, p.34).
The law on insolvency establishes two types of inso lvency proceedings: the general procedure and the
simplified procedure, applying one or another being further established in general lines, depending on
the criteria provided by the law.

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54 The general procedure represents the procedure prov ided by the Law no. 85/2006, by which a debtor
complying with the conditions provided under the ar t. 1 para. (1) of the Law no. 85/2006, without
complying simultaneously the ones under the art. 1 para. (2) of the Law no. 85/2006, either undergoes,
after the passing of the observation period, first the judicial reorganization procedure and after tha t the
bankruptcy procedure, or undergoes separately, eith er the judicial reorganization or the bankruptcy
procedure – art.3 para.1 subsection 24 of the Law n o. 85/2006.
The simplified procedure represents the procedure p rovided by the Law no. 85/2006, by which the
debtor complying with the terms provided under the art. 1 para. (2) of the Law no. 85/2006 undergoes
directly the bankruptcy procedure, either concurren tly with the opening of the insolvency procedure, o r
after a maximum observation period of 60 days, when the elements illustrated under the art. 1 para. (2 )
let. c) and d) of the Law no. 85/2006 – art.3 para. 1 subsection 25 of the Law no. 85/2006 are analyzed .
The observation period is the interval comprised be tween the date of opening the insolvency procedure
and the date of confirming the reorganization plan or, as the case may be, of entering the bankruptcy
procedure.
One of the major novelties of the Law no. 85/2006 i s the set up of a simplified procedure on
insolvency (Adam & Savu, 2007, p.21; Militaru & Voi ca, 2007, p.62) procedure by which the debtor
is subjected solely to the bankruptcy procedure –it s redress being considered by the law as inopportun e
due to the debtor’s capacity or situation-.
The starting point of the Romanian law maker was ag ain the French law; however it deviated
significantly from such model.
In the French law on insolvency, the simplified pro cedure on insolvency is of interest for the small
companies (Saint-Alary Houin, 2007, p.124) applying to the debtor whose patrimony does not include
real estate properties and who has a number of empl oyees and a turnover (excluding the taxes) for the
last 6 months prior to opening the procedure, equal or lower to the threshold established by the decre e
of the State Council (art. 99 of the Law nr. 2005-9 45 on July 29 th , 2005 reiterated in the art. L641-2(V)
of the French commercial code).
The purpose of the insolvency procedure is accompli shed by actual means represented by the
procedure of judicial reorganization and of insolve ncy procedure, even if the current law on insolvenc y
does not expressly indicate the achievement of its purpose by means of judicial reorganization
procedure and by the means of bankruptcy procedure (for a different opinion, Nasz, 2009, p.144) as
indicated in the Law no. 64/1995 (annuled by the Law no. 85/2006) regarding the judi cial
reorganization and bankruptcy procedures ("The purp ose of the law is the set up of a procedure for
covering the debtor’s debts undergoing the insolven cy proceedings, by either reorganizing its activity
or by liquidating part of its assets up to covering the liabilities, or by bankruptcy”- art. 2 of the Law
no. 64/1995).
The entire insolvency proceedings is a collective p rocedure in which the recognized creditors
participate jointly for tracing and recovering thei r receivables, by the means legally provided: the
judicial reorganization procedure and the bankruptc y procedure as the only actual methods
(procedures) to be used for paying the debtor’s deb ts and for covering its liabilities.
The judicial reorganization is the procedure to app ly to the debtor, legal entity, for paying its debt s,
according to the debts payment schedule. The reorga nization procedure presupposes the drafting, the
approval, the implementation and following a plan, called reorganization plan, that can include,
together or separately: the operational and /or fin ancial restructuring of the debtor, the corporate
restructuring by the amendment of the registered ca pital structure, the activity restructuring by the
liquidation of some of the debtor’s assets.
Therefore, the judicial reorganization involves the continuation and the redress of the debtor’s activ ity.
The bankruptcy procedure represents the concursual, collective and fair insolvency proceedings that
applies to the debtor for liquidating its assets fo r covering the liabilities, the next step being the
debtor’s removal from the registry it is registered in.

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55 The provisions of the insolvency law do not offer a ny hierarchy in applying the two methods for
achieving the purpose of the insolvency proceedings .
Obviously, in the case of applying the general proc edure, as far as the official receiver determines t hat
there is an actual possibility for the effective re organization of the debtor’s activity that would al low
the payment of the debtor’s debts, save for the app roval and acceptance of a reorganization plan, the
judicial reorganization procedure shall apply.
From this perspective, we can consider that the jud icial reorganization has priority by reference to t he
bankruptcy procedure, the reimbursement of the cred itors being secondary.
However, there is no legal impediment, if there are reasons due to which the debtor’s reorganization
and rescue is not an option, to enter the bankruptc y procedure without going through the judicial
reorganization, in such case, the purpose of paying the debts to the creditors being the priority agai n,
indissolubly connected to the company winding-up by means of liquidation (Jeantin & Le Cannu,
1999, p.355)
In the specialized literature there is also the opi nion according to which, beyond the provisions of l aw,
the purpose of the insolvency differs depending on the position occupied by the ones involved in the
procedure. From this perspective, the purpose, for the creditors, is to quickly recover most or total of
the debts they have to recover from the debtor; for the debtor the purpose is to redress it’s activity and
to pay the debts and, only in exceptional cases, to liquidate the business; for the business environme nt,
the purpose is the trade revitalization by the tran sparency and predictability of the procedure (Nasz,
2009, p.145; Turcu, 2007, p.43).

4 Conclusions

In fact, from all the analyses above it results, fr om any perspective, that the purpose of the insolve ncy
proceedings is the one of satisfying the creditors’ rights by the payment of the debtor’s debts either by
means of activity reorganization or recovery, or by collective enforcement of its assets.
Thus, the debtor’s recovery by the reorganization o r restructuring of the bankrupted debtor’s activity is
not the main purpose of the insolvency proceedings but merely the means of satisfying the creditors’
rights.
Considering that the operational and financial reco very of the debtor is the method that could provide
best for the achievement of the insolvency proceedi ngs objective we are of the opinion that the
debtor’s reorganizations represents the secondary p urpose of any insolvency proceedings and all the
participants in this procedure should keep in mind such purpose. In case that, according to the
opinions of the experts involved in the insolvency procedure, this objective is not viable, the option for
liquidating the debtor’s assets remains the only on e that can lead to the payment, at least partial, o f the
debtor’s debts.

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