6. Acţiunea în anulare – între funcţia reparatorie şi riscul descurajării finanţării întreprinderii
6. The action for annulment – between its remedial function and the risk of discouraging business financing

Summary/Abstract: The action for annulment is an indispensable legal instrument within the architecture of insolvency proceedings, serving to prevent the fraudulent diminution of the debtor’s assets and to guarantee equal treatment of creditors; however, the annulment of acts and transactions concluded during the suspect period, producing effects similar to a finding of nullity of civil legal acts in general, has a negative impact on the financing of a debtor in insolvency. A rigid or excessively formalistic application of the action for annulment may produce effects contrary to the purpose pursued by the legislature: the risk of annulment of financing transactions discourages creditors and financial institutions from supporting businesses in difficulty, undermines their real chances of recovery and, in many situations, leads to bankruptcy. Case law plays an essential role in refining the application of legal provisions, steering interpretation towards a concrete analysis of each situation; judicial decisions highlight a tendency to limit the automatic application of the action for annulment and to give weight to the economic purpose of legal transactions, the good faith of the parties and the usefulness of the financing for the continuation of the debtor’s activity.

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