Un nou statut al instituției insolvenței raportat la viziunea monistă promovată de noul Cod civil. Conturarea unui drept special, particular – dreptul insolvenței – urmare abrogării Codului comercial
A new statute of the insolvency institution in connection to the Monist vision promoted by the new Civil Code. The outlining of a special, peculiar law –insolvency law–as a result of the repeal of the Commercial Code

Summary/Abstract: The current legislative context allows for outlining a new image of insolvency law in connection to the monist vision of the new Civil Code, highlighting it evolution and establishment as a peculiar law, as a result of the disappearance of the commercial code or at least the loss of its autonomy, but not independent from the civil law, given its unavoidable intersections with the provisions of the Civil Code, and also the exceptions that contravene the common law. As Augustin Zegrean, former President of the Constitutional Court of Romania said, “the greatness of law lies in interpretation”, as the doctrinal and jurisprudential “struggle” can never cease, because a rule of law will always give rise to interpretation. Starting from this reality, we dare outline own opinions, passed through the filter ow own convictions, ideals, principles and overall images on the society and life in general, which is why, in this brief analysis, we sought to achieve a visualization of insolvency as self-standing, evolving law, separated from the commercial law, from the perspective of the new actors of insolvency, as progress always requires sacrifices. Given the new vision related to the insolvency phenomenon, more specifically, the outlining of a juridical culture oriented towards the promotion of the entrepreneurial spirit, investments, and employment, Law no. 85/2014 being justifiably viewed in the specialised literatureas a genuine Insolvency Code (an act that proposes an integrative vision, which includes in a single regulatory corpus, the general legislation, applicable to all economic operators, the special legislation, applicable to credit institutions and insurance companies, to groups of companies, as well as regulations on cross-border insolvency, to which the insolvency prevention tools are added, namelythe ad-hoc mandate and the composition), which benefits from the existence of its own principles that can be found throughout its entire structure, de from own procedures and resources for the exclusion and filtration of the rules coming from outside that are specific to other law branches, we are preponderantly talking about the outlining of a special, peculiar law, i.e. the insolvency law, which is indeed supplemented by the provisions of the new Civil Code, insofar as they do not contravene them, its dependency on and subordination to the civil law being indisputable. The Monist concept of the new Civil Code has an unavoidable effect, which was also proven by the legislative revitalization and resizing carried out starting with 1 October, 2011, several normative acts, both in the private and in the public field being amended or harmonized with the provisions of the New Civil Code, thus creating the “connection” of the Romanian law to the new “unified” law of obligations and contracts. Thus, we are talking about the acceptance of the disappearance of the old concepts, more specifically, trader, documents, acts of commerce, underlying commercial law, while the new pillars of the civil law - professional, company–were assimilated and recognized in the content of all normative acts at internal level. We also strongly affirm that there is a separation of insolvency from the commercial law due to the fact that Law no. 85/2014 on prevention insolvency procedures and on insolvency procedure makes the transition from a law of insolvency specific to traders to a phenomenon accessible to other enterprisers as well, profit-oriented or not, the Insolvency Code obviously taking into account the new concept of the Romanian legislator concerning the unity of the private law. We are currently talking about an expansion of the insolvency phenomenon, through Law no. 151/2015 on individuals’ insolvency, and the insolvency of the administrative and territorial units, regulated by Emergency Government Ordinance no. 46/2013 and approved by Law no. 35/2016, provisions that reflect and strengthen current trends at European level and outline a new insolvency “architecture” in the Romanian legal space, as an incontestable effect of the current economic and social reality. Insolvency gained new valences, and therefore it could not remain blocked between tradition and modernity, being harmonized with the Monist system implemented by the new Civil Code but also driven, in its evolution, by the principles promoted at the European Union level. Moreover, as specified above, we can also talk, in the future, about the emergence of a new Insolvency Code, due to the expansion of thjis phenomenon on other topics of law. Given the facts presented above, our opinion is that a special, peculiar law, namely, the insolvency law is emerging, which is supplemented, indeed, by the provisions of the new Civil Code, insofar as they do not contravene them, and their dependency on and subordination to the civil law is indisputable. Thus, we cannot deny the quality of source of law of the civil law, recognizing this incontestable role of the common law, of the civil law as a whole.Nevertheless, the common law gives way to the imperativeof the recovery of the debtor in distress, as the insolvency right creates the levers required to achieve the general purpose, by defeating the principle of contractual freedom, the principle of irrevocability, generating positive effects on the entire social and economic circuit and flow, objectives which were developed and established dynamically and unavoidablyinnational and internationaleconomiccontext, increasingly promoting the idea of cooperation, loyalty, consistency and tolerance, a view that is also reflected in the new approach of the contract by the express regulation of the unpredictability in the new Civil Code. We are currently witnessing an unavoidable fragmentation of the law, despite of the purpose of the new Civil Code to achieve legislative unification, putting “under scrutiny” new rightsderived from the classical commercial law, as well as the corporate law, the banking law, or the insolvency law, an inevitable result of permanent transformations, changes and evolutions emerged in the society, as law has proved over time that it is able to adjust to the social realities and to provide the analytical depth of the dynamic reality. We dare raise the legal institution of insolvency to the rank of private, self-standing law, or at least law that is about to become private and self-standing, by invoking the abovementioned laws on insolvency, which tends to unavoidably outline a genuine Code of Insolvency, without remaining at the stage of a simple special law.

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