TITLE

Calitatea de a contesta hotărârea adunării creditorilor. Valabilitatea formală a votului exprimat prin corespondență. Obligativitatea motivării hotărârii. Neprimirea votului şi încălcarea art. 1 din Protocolul nr. 1 adițional la Convenția europeană a drepturilor omului

PUB. DATE
December 2013
SOURCE
Romanian Case Law Review / Revista Romana de Jurisprudenta;2013, Issue 6, p47
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
1. Capacity to challenge the decision of the meeting of the creditors. According to art. 14 para. (7) of the Law no. 85/2006, the decision of the meeting of creditors may be abolished by the official receiver for illegality upon the request of creditors who voted against making that decision and determined its record in the minutes of the meeting, as well as upon the request of the creditors entitled to participate in the insolvency procedure, which were absent from the meeting of the creditors in a reasoned way. The condition of record of opposition in the minutes refers only to the creditor present at the meeting, because only he may be required to record his opposition to the minutes, which is concluded even during the meeting. The creditor who has voted by mail is in absolute impossibility to request the express record of its opposition and should therefore be considered also that its negative vote expressed by mail involves the application for recording the opposition, as well. A subsequent application of the creditor's record of his opposition is impossible because the minutes shall be drawn up even in the meeting. 2. Formal validity of the vote expressed by mail. Article 14 para (4) of the Insolvency Law sets forth two ways of expressing the vote by mail: the letter expressing the vote, signed by the creditor, shall be communicated to the judicial receiver by any means, up to the day fixed for voting or, in case the communication of the vote is done electronically, the document in soft copy must contain the incorporated, enclosed or attached electronic signature according to Law. 455/2001 on electronic signature. A combination of the two methods, a handwritten letter signed by the legal representative, sent by a simple e-mail, together with the non-compliance of the requirements regarding the electronic signature, violates the requirements of para. (4), art. 14, drawing invalidity of the vote. The letter signed by hand must be transmitted by any means that enables the transmission of the original document insofar as it opts for electronic transmission method, the requirements of the Law no. 455/2001 on electronic signature have to be met, as the respective electronic signature is the equivalent of the original signature. 3. Mandatory explanatory statement of the judgment. The mandatory explanatory statement of the judgment is a condition of the fair trial, required by art. 21 para. (3) of the Constitution of Romania and art. 6 para. (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. But the failure to explain in detail the arguments cannot be equated with the failure to state reasons and lead to the reversal by reference. 4. Not receiving the vote and violation of Art. 1 of Protocol no. 1 Additional to the European Convention on Human Rights. The creditor having a claim stated in the debt pool owns an asset according to art. 1 of the Protocol no. 1. The invalid nature of the vote expressed in a general meeting amounts neither to the lack of the right to claim nor to the cancellation of the right to vote in general. The creditor retains its rights resulting from the record of its debt throughout the proceedings and will have to exercise them under the law. By declaring a vote as invalid expressed during a meeting of creditors, the right and the legitimate expectation of the respective creditor to participate effectively in collective proceedings are not removed.
ACCESSION #
93917234

 

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