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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 22, 2005 No. 24

About exceptional case of illegality of provisions of Art. 73 of the h. (6) the Insolvency act No. 632-XV of November 14, 2001 in edition of the Law No. 573-XV of December 26, 2003 "About modification and amendments in some legal acts"

Name of the Republic of Moldova

Constitutional court in structure:

Victor PUSKAS is chairman

Alina YANUCHENKO is judge

Mircha of YUGA - the judge

To Dumitr PULBERE - the judge

Elena SAFALERU is judge-speaker

The request of the Highest trial chamber about permission of exceptional case of illegality of provisions of Art. 73 of the h formed the basis for consideration of the case. (6) the Insolvency act N632-XV of November 14, 2001 in edition of the Law N573-XV of December 26, 2003 "About modification and amendments in some legal acts", provided on October 24, 2005 according to provisions of Art. 24 and Art. 25 of the Law on the Constitutional court, Art. 38 and Art. 39 of the Code of the constitutional jurisdiction.

The address was accepted determination of the Constitutional court of October 31, 2005 to consideration on the merits.

In subject of the address the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Industry ministry and infrastructure, the Prosecutor General's Office, Licensed chamber.

Having considered case papers, having heard the message of the judge-speaker and arguments of the parties, the Constitutional court established:

"The same person can be appointed to the managing director's position no more than one insolvent company. In exceptional cases the degree of jurisdiction, with the consent of creditor committee, can designate the same person to the managing director's position no more than two such companies".

Question of exceptional case of illegality of provisions of Art. 73 of the h. (6) the Insolvency act it was lifted by consideration of civil case administratively in Appeal chamber Chisinau.

As it is seen from the appeal of the Highest trial chamber, in Appeal chamber Chisinau the claim of sole proprietor company "Casian Tamara" in which the instruction of Licensed chamber of February 2, 2005 about the claimant's obligation is challenged "is in process of consideration liquidate the violations concerning licensing conditions and provide information on observance of provisions of Art. 73 of the h in Licensed chamber. (6) Insolvency act".

During consideration of the case the claimant appealed to degree of jurisdiction to petition before the Highest trial chamber for representation of request in the Constitutional court concerning permission of exceptional case of illegality of provisions of Art. 73 of the h. (6) Insolvency act. Affirms as reasons for exceptional case of illegality that the regulation which is subject to application, Art. 73 of the h. (6) the Insolvency act, contradicts provisions of Art. 126 of the h. (2) the item b) Constitutions according to which the state shall provide freedom of trade and business activity, protection of fair competition, creating favorable conditions for use of all production factors.

Appeal chamber Chisinau based on Art. 12 of the h. (2) the Code of civil procedure the conclusion of May 10, 2005 suspended consideration of the case and addressed to the Highest trial chamber with idea of request in the Constitutional court about permission of exceptional case of illegality of provisions of Art. 73 of the h. (6) Insolvency act.

The highest trial chamber considered representation and appealed to the Constitutional court with request about permission of exceptional case of illegality of provisions of Art. 73 of the h. (6) Insolvency act.

2. Having considered exceptional case of illegality of provisions of Art. 73 of the h. (6) the Insolvency act in the ratio with the constitutional regulations, the Constitutional court notes the following.

Process of insolvency is performed according to provisions of the Code of civil procedure and Insolvency act.

The insolvency act establishes the legal basis for implementation of process of restructuring of the insolvent companies for the purpose of their financial and economic improvement and for implementation of process of insolvency for the purpose of collective satisfaction of requirements of creditors at the expense of property of the debtor by application of the procedure of the plan to it or by liquidation of its property and distribution of the received means.

Degrees of jurisdiction consider applications for initiation of processes of insolvency according to the material and territorial jurisdiction established by the Code of civil procedure, having exclusive competence by consideration of the disputes concerning debit weight.

On the basis of assessment of the bases of insolvency, and also the facts determined during consideration of the action for declaration, the degree of jurisdiction makes the decision on initiation of process of insolvency or on action for declaration variation.

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