Codul civil – dreptul comun în materia societăţilor, o Fata Morgana?
Civil Code – common law in the matter of companies, a Fata Morgana?

Summary/Abstract: This study considers the Decision of the High Court of Cassation and Justice no. 28/2021 relating to the settlement of certain legal matters, by which it was ruled that the situations of exclusion of the shareholder, provided for in art. 222 of Law no. 31/1990 shall not be supplemented by the provisions of art. 1.928 of Law no. 287/2009 regarding the Civil Code, as Articles 1.890-1.954 of the Civil Code govern a specific form of a simple company, without a legal personality, being, therefore, of a special nature in relation to the Law no. 31/1990, and therefore, they are of strict interpretation and application only to this type of companies. The interest in establishing the relationship between the Civil Code and law no. 31/1990 shall be justified in relation to Article 1.887 of the Civil Code, which expressly indicates that chapter “The Memorandum of Association” represents the common law in the matter of companies, so that the application of certain rules providing optimal solutions seemed to be justified; this is also the case of Article 1.928 of the Civil Code, which governs the shareholder’s exclusion for reasonable grounds, so that the doctrine which enshrined the theory of the illustrative nature of the reasons for exclusion considered that these new legal provisions may be used as well, by the courts upon settlement of the claims for the shareholder’s exclusion, and this may be ordered also in other cases than those provided for in Article 222 para. (1) of the Companies Law, if the grounds relied upon are reasonable. The supreme court has upheld that the general law applies in any matter and in all cases, less those cases in which the legislator established a special and derogatory regime, establishing special regulations in certain matters, prevailing over the rule of common law, and the priority nature of the special rule arises from the purpose of its enforcement itself, demonstrating the legislator’s intent to derogate from the general rule, by any provisions of strict interpretation and application. The manner of drafting the text of Article 222 of Law no. 31/1990 leads to the conclusion that the list it contains is not illustrative, which involves, in the absence of any other contrary indication, the impossibility of the exclusion in other situations than those regulated or the impossibility of the shareholder’s exclusion from a joint stock company. The circumstance that the special law is prior to the Civil Code shall not be relevant, considering that, according to article 138 of Law no. 71/2011 for the enforcement of Law no. 287/2009 regarding the Civil Code, companies regulated by special laws shall continue to comply with them.

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