Abstract: The article presents the main legal mechanisms available for recovering funds invested in a company undergoing insolvency proceedings that is also suspected of committing economic or financial crimes. It emphasizes the necessity of filing claims within the deadlines, as this is the essential procedure for the recognition of the creditor’s claim and for participating in the distribution of the company’s assets. Simultaneously, creditors may join criminal proceedings as civil parties in order to claim damages and benefit from precautionary measures, such as the seizure of assets belonging to the individuals involved.

The article also highlights the possibility of annulling fraudulent acts, as well as filing an action for liability against the individuals who contributed to the company’s insolvency. The combined use of civil and criminal actions significantly increases the chances of effectively recovering damages. Proper coordination of the procedures and prompt actions are essential, as failure to meet procedural deadlines may render the recovery of funds impossible.

Keywords: insolvency, fund recovery, creditors’ table, civil party, criminal procedure, precautionary measures, fraudulent acts, directors’ liability, economic and financial crimes.

When a company undergoes insolvency proceedings and there are suspicions that the funds were obtained or used in connection with economic or financial crimes, the recovery of the invested amounts becomes a substantially more complex process. In such circumstances, the injured parties may simultaneously use the mechanisms provided by both civil (insolvency) and criminal proceedings. However, the effectiveness of these mechanisms is contingent upon the timely initiation of actions and the coordinated management of all required legal procedures.

This article aims to offer creditors a clear overview of the available legal mechanisms for protecting and recovering the invested funds from the debtor.

I. Filing Claims in the Insolvency Proceedings

When a company that obtained funds from individuals or legal entities (whether investors or business partners) undergoes insolvency proceedings, these parties become creditors and must file a claim in the insolvency proceedings within the deadline set by the court or the insolvency administrator. This claim must include:

• the invested amount – the value of the claim;

• supporting documents (contracts, bank statements, correspondence);

• any interest or penalties claimed.

The insolvency administrator shall examine the claim and determine whether to admit it in full, in part, or to reject it. If rejected or only partially admitted, the creditor may challenge the decision in court.

Advantages of filing a claim in the insolvency proceedings:

• It allows the recovery of all or part of the debt, depending on the company’s available assets;

• It is the essential and mandatory procedure for creditors once the debtor (the company) enters insolvency proceedings in order to recover their claims.

It is important to note that once a company enters insolvency proceedings and a deadline for filing claims is established, reinstatement of the deadline may only be requested in truly exceptional circumstances. Therefore, after this deadline, obtaining a court order requiring the company to repay the debt becomes almost impossible.

II. Joining the Criminal Proceedings as a Civil Party

If there are reasonable suspicions that the company or its management committed criminal offences, the creditors may file a criminal complaint and join the criminal case as civil parties, according to the Romanian legislation. This allows them to:

• claim damages directly from the responsible individuals;

• benefit from precautionary measures such as asset seizure or freezing of accounts;

• contribute to identifying and securing the assets of the company or the individuals involved.

Filing a criminal complaint and joining the criminal proceedings as a civil party does not substitute for the mandatory registration of a claim in the insolvency proceedings, which is required by law in order to recover the funds. Both actions can and should be pursued simultaneously, as they complement each other.

III. Additional Measures for the Protection of Creditors

Creditors must pay attention to unjustified transfers of assets to other companies, lack of supporting documents, or lack of the necessary legal authorizations. Under such circumstances, the following actions may be taken:

• annulment of fraudulent acts/contracts in court;

• bringing an action for liability against the persons responsible for causing the company’s insolvency, pursuant to Article 235 of Law no. 85/2014 on insolvency proceedings.

These actions, combined with insolvency and criminal procedures, significantly increase the chances of recovering the invested funds.

IV. The Relationship Between Insolvency Proceedings and Criminal Proceedings

The relationship between insolvency and criminal proceedings is crucial for the effective recovery of funds, as the two mechanisms operate complementarily.

Insolvency proceedings are for the purpose of restructuring the company’s operations and covering its liabilities, whereas criminal proceedings are for the purpose of holding the culpable individuals accountable and securing compensation for the resulting damages.

The two proceedings may be conducted simultaneously and a final criminal judgment may support civil or insolvency actions, including through the freezing of assets and the identification of sources for the recovery of funds.

V. The Importance of Specialized Legal Assistance

Recovering damages in such contexts is often complex and involves:

1. analysing the documentation;

2. establishing the existence of evidence of criminal conduct;

3. preparing claim filings in the insolvency procedure and/or submitting a criminal complaint and joining the criminal case within strict deadlines;

4. initiating actions against administrators or other individuals responsible for the company’s insolvency.

Specialized legal assistance can greatly increase the chances of recovering the funds and prevent additional losses caused by missed deadlines or procedural errors.

The affected creditors must act promptly and use all available legal tools: insolvency procedures, criminal law mechanisms and complementary civil actions. Consulting an attorney specialized in business law, insolvency and economic crimes is essential for protecting financial interests and maximizing the chances of recovery.

Gabriela Cioban, Associate Duțescu & Partners