The inapplicability of the preventive measure regulated by Article 493 para. (1) letter a) of the Romanian Criminal Procedure Code regarding the dissolution or liquidation of a legal person during an insolvency procedure

Abstract

In this study we aim to prove that insolvency (bankruptcy) procedures are meant to protect the debtor and its creditors alike, including the ones that participate in criminal proceedings. Insolvency procedures are carried out under the supervision and control of the bankruptcy judge. It also implies completion of certain steps, expressly provided by the law, characterised by continuity and expeditiousness. At the same time, the notions of ”dissolution” and `”`liquidation” are not bankruptcy-specific, but rather common in the life of legal persons.

The aim of preventive measures in criminal proceedings against legal persons is to prevent absconding. The notion of ”absconding” is intrinsically tied to a fraudulent attempt to elude criminal prosecution.

The logical interpretation of Article 493 para. (1) letter a) from the Code of Criminal Procedure leads to the conclusion that the preventive measure cannot be applied during insolvency procedures, because there is no absconding. The procedure is defined by law and supervised by a specialised judge. It is impossible for the legislator to have envisioned a conflict of powers between two judges from different sections of the courts.

De lege lata, there are cases in which a transfer of criminal responsibility operates. Also, the fate of civil damages in the criminal proceedings is prescribed by law, even if the deletion of the legal person occurs before the end of the criminal trial.

Lastly, the effects of the preventive measure found in Article 493 para. (1) letter a) from the Code of Criminal Procedure over insolvency proceedings would be negative for all parties involved, including creditors from the criminal proceedings. 

Therefore, the Courts cannot, pursuant to Article 493 para. (1) letter a) from the Code of Criminal Procedure prohibit the start of the insolvency proceedings or suspend them, even as far as prohibiting the dissolution or liquidation that takes place in this legal framework.