ANALIZA NAŞTERII UNOR GARANŢII ATIPICE, ÎN CADRUL PERIOADEI DE OBSERVAŢIE (SAU INDIVIDUALISMUL CONCURSUAL AL GARANŢIILOR ÎN INSOLVENŢĂ)
ANALYSIS ON THE OCCURRENCE OF ATYPICAL GUARANTEES WITHIN THE OBSERVATION PERIOD (OR THE CONCURSUAL INDIVIDUALISM OF GUARANTEES DURING INSOLVENCY)

Summary/Abstract: The funding that can be granted during insolvency proceedings (new funding) uses a special type of guarantees, which international insolvency law calls "superpriorities", and which can be legally considered mortgages. The behaviour of these guarantees during insolvency involves substantial exceptions from common law, as their nature puts them above pre-existing guarantees, in violation of the principle prior tempore, potior iure. However, with the occurrence of so-called "atypical guarantees", things become complicated, because we need to identify their effect on pre-existing guarantees, and there are times when their legal materialization is truly difficult. As such, among the classic structures of guarantee in civil law, insolvency generates the issue of guarantees that bring an increased degree of comfort for creditors, but using criteria completely different from common ones, such as their "extractile" character, against guarantees that aim towards theconcursual interest of creditors.

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