2014

Until the New Criminal Code came into force, the offenses of simple bankruptcy and fraudulent bankruptcy were provided for, as of October 25, 2013, in Law No. 85/2006 on Insolvency Proceedings, under Article 143. Subsequently, from October 25, 2013, to November 1, 2013, these same offenses were included in the controversial Government Emergency Ordinance No. 91/2013 on insolvency prevention and insolvency procedures (the so-called Insolvency Code), in Article 337. Given that this Government Emergency Ordinance was declared unconstitutional, simple bankruptcy and fraudulent bankruptcy “returned” to Law No. 85/2006. Thus, in less than 5 months, these criminal offenses have passed through 3 legislative acts.

A first question that arises is whether, ultimately, they have found their “natural” place within the special part of the Criminal Code. Secondly, despite the absence of substantial changes to the constituent elements regarding these two offenses, we will nevertheless analyze several defining aspects of simple bankruptcy and fraudulent bankruptcy, highlighting the constituent elements that have generated the most controversy over time. Last but not least, we will address the relationship between the offenses of simple bankruptcy and fraudulent bankruptcy, on the one hand, and other offenses provided for in the New Criminal Code, on the other. Given the complexity of fraudulent bankruptcy in particular, discussions may arise regarding the extent to which this offense will compete with other offenses under the New Criminal Code, or, conversely, will encompass those offenses.
    
Keywords: simple bankruptcy, fraudulent bankruptcy, state of insolvency, concurrence of offenses.