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- Title
29. Înlocuirea practicianului în insolvență din oficiu. Necesitatea precizării atribuțiilor neîndeplinite sau îndeplinite necorespunzător.
- Abstract
By reference to Article 22 para. (2) of Law no. 85/2006 (the rule being taken over, to this end, in Article 57 para. (4) of Law no. 85/2014), only „the reasonable grounds“ may substantiate the solution of the syndic judge, of replacing the judicial liquidator acting ex officio". The general formulations, without the clear and reasoned presentation, by reference to the activity of the judicial liquidator in the insolvency casefile, of the situations which the „special importance“ of the monthly activity reports and of other documents within the proceedings refer to, respectively the publication in the National Bankruptcy Register (BPI), as being an „essential component for the conduct of the proceedings“, „a security for the observance of the right to defence“ and of the „principle of lawfulness within the proceedings“, as well as without mentioning the documents of the file supporting these grounds, shall not meet the requirements established by the legislator. The general statements, without any references to the legal provisions which have been breached, to the periods for which the obligation of submission of the activity reports, provided for under Article 21 of Law no. 85/2006 was infringed, without indicating which were „the other documents within the proceedings“ not prepared or not submitted and the measures which could not be ordered/carried out for these reasons, without pointing out the actual negative consequences on the conduct of the proceedings cannot be deemed as „solid grounds“. Likewise, the statement of the importance „of publication in the National Bankruptcy Register“, as representing an „essential component for the conduct of the proceedings and a guarantee for the purpose of complying with the right to defence and of the principle of lawfulness within proceedings", without mentioning any concrete items, without references to the documents of the insolvency file, without relying on the breached legal provisions, without indicating the actual situations in which the judicial liquidator has not published the documents in the National Bankruptcy Register -- according to the purpose laid down in Article 3 item 29 of Law no. 85/2006, respectively according to the obligations established in achieving this purpose, for example, under Article 7, Article 21, Article 61, Article 73 para. 2 of Law no. 85/2006 --, cannot determine the replacement of the judicial liquidator.
- Subjects
BANKRUPTCY; DUTY; LEGISLATORS; SURETYSHIP &; guaranty; JUDGES; DATA security failures; THEORY of reasoned action
- Publication
Romanian Case Law Review / Revista Română de Jurisprudenţă, 2019, Issue 4, p180
- ISSN
1844-6450
- Publication type
Article