The legal regime of the insurance indemnity in the event that the asset on which the measure of attachment was established during the criminal prosecution stage is destroyed before ruling a final judgment in the case.
DREPT PENAL ŞI PROCESUAL PENAL
Abstract
1. On compliance with the provisions of art. 2.330 para. (1) of the Civil Code, if the encumbered asset disappeared or was deteriorated, the insurance indemnity or, as the case may be, the amount due as indemnification is assigned for the payment of privileged or mortgage debts, according to their rank, and a provision having the same object is found in Article 1.721 para. (1) of the former Civil Code, which leads to the conclusion that it is not need to
reestablish the precautionary measure, operating a transfer of the security.
Instead, if the value amount up to which the attachment measure was established is lower than the amount of the insurance indemnity, in order for the entire indemnification to be preserved (or a higher share thereof than the initially established limit) it is necessary to refer to the procedure provided by Article 249 of the Code of Criminal Procedure, respectively the adoption of a new precautionary measure, which is likely to guarantee the parties the possibility of exercising the right to defence.
2. Both the special law – Article 26 of the G.E.O. no. 44/2008 – and the Civil Code (Articles 31, 32 and 2324 which the special law refers to), referring to the equity of the natural person, enshrine the possibility of foreclosure of certain assets belonging to him/her for the settlement of debts of the individual undertaking.
On the other hand, according to the provisions of Article 31 of the Civil Code, any person (natural person or legal entity) is the holder of a single equity. A part of this equity may represent the object of a division, in order to carry out an activity, including herein the activity of the individual undertaking. This thing does not mean that the assets at issue are removed from the natural person’s equity, as they remain in this equity, having only a
special purpose.
As a consequence, the assets found in the equity of the natural person, may be foreclosed for guaranteeing or paying its liabilities, even if they had a special purpose division, and therefore, may represent the object of an attachment established in a case in which the
natural person acts as defendant
