Legal treatment of over-indebtedness of the individual contractor in insolvency

DEZBATERI

Abstract

Once the state of insolvency of the natural person is established, determined both by his or her over-indebtedness, and by the high degree of indebtedness of the company the owner of which he or she is, it naturally results the question of knowing how the existing crisis will be dealt with. The natural person being overleveraged who is in insolvency may lodge an application to be placed under protection of the Law on the insolvency of natural person, and this application shall be addressed either to the relevant insolvency committee, or to the insolvency court, as the case may be, in relation to the situation of his or her assets, for the 
purpose of obtaining the debt remittance. As an owner of a business company in a stated of insolvency, the natural person is required to address to the insolvency court having subject matter and territorial  jurisdiction, an application for opening the insolvency procedure if that insolvency is manifest, installed, having the option of such an action for the assumption of an imminent insolvency. However, at the same time, it is possible for a creditor of the individual entrepreneur to request the opening of the insolvency procedure if it is a creditor entitled to participate in that procedure. However, we notice that the steps which the procedures to which the natural person inn a state of insolvency is subject, as consumer, respectively individual entrepreneur, are essentially different, and their conciliation is not possible, as the rules are mandatory and therefore, inconsistency problems between procedures result, which the judge is required to settle. 
The separate regulation and essentially different of the insolvency procedures in those two presentations of the natural person – consumer and individual entrepreneur – and the limitation of the professional’s insolvency only to the simplified procedure of insolvency, condemns the consumer to the liquidation of his assets, limiting his access to a procedure based on a debt reimbursement plan, which is not allowed and, for this reason, the application of certain different insolvency procedures over the same assets of the debtor natural person, distinctly for his civil debts and separately for the trade debts resulting from the operating activity of a company, shall not represent the viable solution to confer a real new start. 

Key words: insolvency; debt; consumer; reorganization