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CONCEPTUAL COMPANY IN THE ACTUAL LEGAL FRAMEWORK DELIMITATIONS OF THE COMMERCIAL

Author(s): Anca Popescu-Cruceru,Gabriela-Eugenia Leuciuc / Language(s): English Issue: VII/2013

The necessity of an interdependent apreciation of the economical and the legal aspects, combined in a previsional attitude, offer the possibility of adopting a coherent managerial decision. Not rarely are legal measures taken without any analysis of the effects they could have on the economy in its ensamble and on the legal matters in particular, the notional approach of the legal system of companies as a pylon of competitional economy, in the actual regulation, outlining deficiencies which could finally have as consequence the legal anxity's recession, derived from the fact that complex norms, yet unable to evoque concrete images, are not received in the collective self. The unclarity of the norm generates traps affecting once the individual interest from the managerial perspective, and then, their conglomeration in general interest.

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SHAREHOLDER WITHDRAWAL FROM THE COMPANY. DOCTRINE, JURISPRUDENCE AND PRACTICAL ISSUES

Author(s): Andreea Florina Thellmann / Language(s): English Issue: VII/2013

The dynamics of Romanian law, since the time of the 1989 Revolution to this day may often be construed as overwhelming. In this context, the legislation that regulates the company law, although dynamic, succeeded to mostly maintain its initial steer. Nonetheless we cannot admit that in the context of a relatively short existence of such legal and economic reality, one may find legal matters deemed regular that might still raise controversy. In our opinion the status of the provisions of Law 31/1990 subscribes to the above, with regard to the institution of withdrawal of shareholders from an unlimited, limited partnership or limited liability company, a subject we aim to tackle with in this article.

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CONTENTS OF THE CONTRACT CONCLUDED BETWEEN PROFFESSIONALS TRADERS

Author(s): Smaranda Angheni / Language(s): English Issue: VIII/2014

The contents of the contract usually consist of the clauses inserted by the parties to the contract. The clauses may be negotiated by both the parties (in the case of negotiated contracts), as well as determined by one of the parties, and the other party, to the extent in which it wishes to conclude such contact, it adheres to, agrees with the clauses determined by the co-contractor. On the other hand, the contract contents vary according to the contract's nature, to its object, to the parties' obligations etc.The Civil Code provides some common rules applicable to all contracts in relation to their contents.Thus, according to art. 1272 Civil Code, if a contract is validly concluded, it binds the parties not only to what is expressly stipulated in its contents, but to other obligations as well, according to the practices already determined (existing) between the parties, based on the practice or as the law or reasonableness impose such clauses.At the same time, the legislator determines under par. (2) of art. 1272 Civil Code: "the usual clauses in a contract are inherent, even though they are not expressly stipulated". For instance, the clause regarding the contractual liability for the debtor's failure to observe its obligations is inherent even though the parties did not expressly provide such a clause in the contract.

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NOVELTIES INTRODUCED UNDER LAW. 85/2014 REGARDING THE INSOLVENCY PREVENTION PROCEEDINGS AND INSOLVENCY

Author(s): Cristian Drăghici / Language(s): English Issue: VIII/2014

The insolvency code was declared unconstitutional last autumn and therefore, there is a new insolvency law, Law 85/2014 regarding the insolvency prevention proceedings and insolvency, which was published in the Official Gazette, Part I, no.466 of June 25th, 2014 and came into force on June 28th, 2014. The new law continues, to a large extent, on the same structure and content as Emergency Ordinance no 91/2013 on the insolvency prevention proceedings and insolvency, which was declared unconstitutional, too, on October 29th, 2013. The regulation contains a series of legislative novelties and it is, as well, an answer to a lot of dysfunctions that are met in practice, in approximately seven years of implementing Law 85/2006 on insolvency proceeding. On the other hand, the legislator still has no answers for a lot of the aspects which were approached by the practitioners.The legislative changes brought by the new Law 85/2014, legally shape a part of the solutions that can be found in the procedure of the old Law 85/2006 of doctrine and practice.These legislative changes are very much to the point especially that, in the past, the insolvency law became a tool both in the hands of creditors to force their debtors to pay the debts, although those debtors were not in insolvency, and also in the hands of debtors, for whom this procedure served as a lever to avoid paying their debts to creditors.One aspect, which will hereafter be omitted by the new legislative regulation, is that of personal bankruptcy. Law 85/2014 applies to professionals, such as former commercial companies, the current companies to which the authorized natural persons are added. Nevertheless, Law 85/2014 applies neither to a person who practices a liberal profession nor to a person for whom special dispositions regarding insolvency are mentioned.It seems that a bill, which is on a public debate in the Senate, offers the natural persons the possibility to declare insolvent when they cannot pay their debts to creditors.This paper aims to analyse the main novelties which are brought by Law 85/2014 in terms of the solutions that were found by the legislator to the issues of the old insolvency law.

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THE BUSINESS AND THE PATRIMONY OF AFFECTATION

Author(s): Smaranda Angheni / Language(s): English Issue: IX/2015

The patrimony of a professional-trader includes a “set” of assets used for its activity, assets that, depending on their nature, are tangible or intangible, movable and immovable, assets that are seen as a de facto universality, not a de jure universality. Thus, from the very beginning it is important to underline that the business cannot be mistaken for the patrimony. The essential difference is that the business does not include rights and obligations, but merely assets used for the activity that the professional carries out , while the patrimony includes all appraisable rights and liabilities of the professional (article 31 of the Civil Code). Under these circumstances the business is not identical to the patrimony of professional affectation which, in accordance with the Civil Code (article 31 paragraph 3 by reference to article 31 paragraph 1 and paragraph 2) is represented by the “fiduciary groups of assets, established according to the provisions of title IV of book III, those used for an authorized profession, as well as other patrimonies determined under the law”.

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OPPOSITION TO ENFORCEMENT – LAST REMEDY TO ESTABLISH AN EFFECTIVE BALANCE BETWEEN CONSUMERS AND PROFESSIONALS

Author(s): Bogdan Alex Arghir / Language(s): English Issue: IX/2015

The beautiful dream of taking loans has transformed slowly but sure into a nightmare for consumers who are unable to return the cost of the credit contracts. In such circumstances, trying to recover their debts, creditors have started execution proceedings due the fact that credit contracts are recognized by law as enforceable titles. Observing that their patrimony is being affected, in particular given the possibility of loosing the family home, consumers have counteracted by bringing before courts opposition to enforcement through which they claim that the contractual terms are unfair pursuant to Law no 193/2000 on unfair terms in contracts between consumers and professionals, having transposed in Romania the Directive 93/13/EEC. The new Code of civil procedure, like the previous one, provides in the execution phase a mechanism that is able to replace the formal balance which the credit contract establishes between parties with an effective one, reducing credit costs and perhaps avoiding real estate foreclosure. Furthermore, the Court of Justice of the European Union stated on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, even in enforcement proceedings.

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CONSIDERATIONS ON THE DEFINITIONS OF TAX HAVENS AND OFFSHORE FINANCIAL CENTRES

Author(s): Roxana Chirieac / Language(s): English Issue: IX/2015

Before the economic crisis that debuted late 2007, offshore companies were well rated throughout the world being considered as a possibility to optimize taxation, and therefore increase profit in any developers business. Offshore companies are always present in either tax havens or offshore financial centre s, being created as a response to the markets demand of financial, corporate and commercial services. There is a fine line between tax havens and offshore financial centre s, line that is sometimes very difficult to define - therefore, quite often, these two concepts are mixed. Beyond the interest of doctrine studies, the delimitation of these two concepts arises interest in a practical matter: a tax haven is a country or a territory which chooses to implement a regulation designed to assist natural or legal persons to avoid tax obligations imposed upon them in the place where they undertake their real economic transactions, whereas an offshore financial centre is much more complex, being built upon a tax haven, and exploiting the structures created within, but incorporating many other services like accounting, law firms, banks and other associated trust companies. Therefore every tax haven aspires to become an offshore financial centre .

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REORGANIZATION OF LEGAL ENTITY. EVOLUTION OR INVOLUTION IN REGULATION?

Author(s): Catalin Andrei Dascăl / Language(s): English Issue: IX/2015

In a market economy in which business is in continuous changing and uncontrollable fluctuation, companies, legal persons of private law have to adapt quickly and appropriately to new requirements and market conditions, the need to reorganize representing now a socio-economic and legal reality of the lives of these legal entities.In this context we must obviously consider the implications for the process of reorganization of legal entities of private law by new regulations on the matter, with particular reference to the rules relating to the reorganization of companies introduced by the new Civil Code.

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AGENCY AND INVESTMENT FOR SMALL AND MEDIUM-SIZED ENTERPRISES IN ROMANIA

Author(s): Nicolae Tănăsoiu / Language(s): English Issue: IX/2015

In the current research we have proposed to make remarks regarding agency agreements as a vector for the investment in Small and Medium-Sized Enterprises in Romania. The agent is the person who based on a power of attorney from a trading operator concludes legal acts on one's own behalf and in the interest of the trading operator (art. 2009 Civil Code). Currently, there are over 400.000 small and medium-sized enterprises (SMEs) operating Romania. They contribute over 60 per cent of GDP and 70 per cent of state budget revenues, even though they hold less than 25 per cent of the national wealth. In the past, we have spoken of a great deal about the need to assist in the development of SMEs but at the same time enacted laws and promulgated ordinances that squeezed them financially to the point that thousands upon thousands of them went out of business.

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THE REPRESENTATION OF THE RELATIONSHIPS BETWEEN PROFESSIONALS’ TRADERS

Author(s): Smaranda Angheni / Language(s): English Issue: X/2016

Professional trader use the services (work), in ongoing business, individual or company, certain categories of persons who according to the Commercial Code, art. 392-404 (now repealed) legal doctrine named them being representatives of trade aids traders. In this framework the legal institution of representation has existed both in traditional civil law relations and in relations between professionals’ traders. Trade aids were divided into two categories: dependent and independent auxiliary aids. Aids addicts represent a category of people who are in a relationship of subordination to the person (owner) who hired. These aids cannot addict traders never acquire quality although, in fact, carries on trade. Category dependent auxiliaries are: servant; clerk; salesman; Trade Commission. Categories which were considered auxiliary trade were: servants, salesmen, trade mediators (intermediaries). These people act in the name and behalf of the trader from receiving authorization or acting in its name but for his account.

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THE REORGANIZATION PLAN. NOVELTY ASPECTS IN THE LEGISLATION REGARDING INSOLVENCY

Author(s): Carmen Pălăcean / Language(s): English Issue: X/2016

From a legislative perspective, Law no. 85/2014 regarding the insolvency prevention procedures, pub-lished in the Official Gazette of Romania no. 466/25.06.2016 repealed, as specified in art. 344, Law no. 85/2006 regarding the insolvency procedure, but also another legislation which has influence in this sphere. The law establishes in its index a legal treatment which can be applied to professionals in financial difficulty, in a state of presumed or imminent insolvency. The lawmaker established that for the debtors not in payment termination, but in financial difficulty, the useful legal methods in achieving the purpose of the law are a preventive agreement with creditors and the ad-hoc mandate procedure, and for those in a state of insolvency, the bankruptcy procedure and judicial reorganization.The state of the heritage of the debtor, the intention of the debtor to reorganize or enter the bankruptcy procedure, and last but not least, the interest of the creditor will determine the choice of procedure.A company can undergo a reorganization plan with chances of success, even if they are confronted with a difficult situation, through fast and efficient measures of restructuring the activity, measures that need be applied both during the observation period, but also along the process of implementation of the reorganization plan of the company’s activity.

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GENERAL CONSIDERATIONS ON THE CONTRACT AS THE MAIN SOURCE OF LEGAL LIABILITY BETWEEN TRADERS

Author(s): Smaranda Angheni / Language(s): English Issue: XI/2017

When talking about the relations between traders, the free will of the parties is expressed both in the manner in which the content of the agreement is established, and in the form the consent takes, as an essential element of the will to contract. The basic principles of closing, carrying out and ending an agreement are the same, as the Civil Code states, no matter the object of the contract or the parties reaching an agreement. Nevertheless, there are a few principles which are outlined, thus becoming more obvious when traders are involved, or at least one party is a trader, and we could name: the principle of goodwill when negotiating, the principle of maintaining a balance between the provisions of the parties, the solidarity within the contract, the principle of collaboration between the contracting parties, etc.

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THE LEGAL NATURE OF THE RELATIONSHIP BETWEEN THE MANAGER AND THE COMPANY

Author(s): Smaranda Angheni / Language(s): English Issue: XII/2018

The determination (qualification) of the legal nature of the existing relationships between the company and the managers is relevant in terms of civil legal liability. Managers are liable according to the rules of contractual liability in the event of non-performance of their obligations, their inadequate or late execution, where it concerns the obligations of the contract of mandate and/or with non-contractual liability or for the non-fulfillment of the obligations stipulated by the law. It could be argued that there is contractual liability even for non-compliance with the legal provisions, either on the grounds that the obligations specific to the contract of mandate are complemented by the law, or that this contract of mandate is of a mixed, contractual and legal nature.

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SOME CONSIDERATIONS REGARDING THE INSOLVENCY PROCEDURE THROUGH ASSET LIQUIDATION REGULATED BY LAW NO. 151/2015. THE SEIZABLE ASSETS VERSUS THE UNSEIZABLE ASSETS

Author(s): Carmen Pălăcean / Language(s): English Issue: XII/2018

The court proceedings for insolvency through liquidation of assets apply to the debtor, a natural person in good faith, but unlike the first procedure, the insolvency procedure based on a debt repayment plan, which is an administrative procedure, this second form is a judicial procedure, the court having decision-making, control and supervisory powers.This procedure applies to the debtor for the purpose of capitalizing on the debtor's assets and / or receivables to cover the liability, followed by the release of residual debts under the law.

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HOW TO RECOGNIZE, AVOID OR MITIGATE THE EFFECTS OF BUSINESS IN FINANCIAL DISTRESS?

Author(s): Nicoleta-Mirela Năstasie / Language(s): English Issue: XII/2018

In the present paper there will be described some general circumstances of companies in financial distress, the causes of financial difficulties and possible mechanisms for prevention, turnaround or reorganization approaches, the process of preventive restructuring, negotiations, agreed solutions and their effects. In the following pages it should be found general observations and possible answers to some important questions and debatable issues in the field of out-of-court restructuring as viable alternative to formal insolvency.

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OPPOSITION TO THE DECISION OF THE GENERAL ASSEMBLY TO AMEND THE MEMORANDUM OF ASSOCIATION AND THE DECISIONS OF THE DIRECTORS OR OF THE MANAGEMENT REGARDING THE CANCELLATION OF THE GENERAL ASSEMBLY OF SHAREHOLDERS

Author(s): Petre Andrei Ţâru / Language(s): English Issue: XII/2018

The analyzed matter represents an exception to the rule of law already established by the law, and the disagreement with the general assemblies of shareholders may only take the form, in legal terms, of the opposition expressed against the amendment of the memoranda of association of the company, as the law-maker technically restricts the specificity of this action of the directors or of the management to these amendments only.The particularity of the study consists in the nature and specificity of the approached matter, as the limitation of the opposition of the director or of the management only against the amendment of the memorandum of association of the trade company shows a particular practical interest in the active and passive procedural capacity of the participants in the civil trial, as well as in the specificity and nature of the opposition request.

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THE PARTICULARITIES AND THE CLAUSES SPECIFIC TO THE AGENCY CONTRACT

Author(s): Smaranda Angheni / Language(s): English Issue: XIII/2019

In the current activity, the professional trader can use the services of a person who has as profession the intermediation in business, a person called agent, and according to the previous regulations the title was that of permanent commercial agent (Law no. 509/2002 regarding permanent commercial agents, currently repealed). The commercial agent may be empowered by the principal to handle business (being an intermediary, an agent without representation) or to conclude business deals (representative of the trader). The commercial agent is the person empowered by one or more committees to treat or conclude contracts, exclusively in a locality or region, in exchange for a remuneration bearing the name of commission. The commercial agent is a professional trader, carrying out his professional activity. In his capacity as a professional, the commercial agent also has specific professional obligations (to keep the accounting records, to not conduct acts of unfair competition, etc.). The agency activity can be carried out independently and the agent cannot, at the same time, be the supervisor of the principal.

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CHALLENGING THE REPORT ON THE CAUSES AND CIRCUMSTANCES THAT LED TO THE APPEARANCE OF THE STATE OF INSOLVENCY. SOLUTIONS FROM JUDICIAL PRACTICE

Author(s): Carmen Pălăcean / Language(s): English Issue: XIII/2019

The appeal against the report on the causes and circumstances that led to the appearance of the state of insolvency has generated a non-unitary practice, not only under the old regulation, Law no. 85/2006 [1], as well as under the new regulation, Law no. 85/2014 [2].One of the main tasks of the judicial administrator appointed in the insolvency proceedings is, according to Article 58 (1) b) of Law no. 85/2014, examining the activity of the debtor and drawing up a detailed report on the causes and circumstances that led to the state of insolvency, mentioning any indications or preliminary elements regarding the persons who would be liable for the insolvency status.The report on the causes and the circumstances that led to the appearance of the insolvency status of the debtor is regulated by the provisions of Article 97 of Law no. 85/2014, which do not establish the possibility of challenging it.In the absence of any rules governing the challenge to the report, the judicial practice gave rise to non-unitary solutions, some courts rejecting these appeals as inadmissible, and others resolving the appeals on the substance of the matter, pursuant to the provisions of Article 59 of the same law.

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SPECIAL RULES CONCERNING TRANSMISSION OF LEGAL STANDING IN THE INSOLVENCY PROCEDURES

Author(s): Cristian Drăghici / Language(s): English Issue: XIII/2019

The insolvency procedure did not benefit from a complex and exhaustive approach dealing with this matter from the perspective of transmitting procedural quality.The establishment of certain rules regarding the transmission of the procedural quality is required both for the protection of the rights of the creditors and for ensuring the implementation of an egalitarian procedure against the debtor.

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The application of digital technology in business registration

Author(s): Sanja Škorić / Language(s): English Issue: 4/2020

The application of digital technology has succeeded, on the one hand, in facilitating the business and whole life of the modern humans, and, on the other hand, in slightly putting in the background the long-maintained habits and values that have become obsolete and unnecessary with digitalization. Almost the entire year of 2020, due to the global pandemic and restrictive measures, as well as business in it, has been reduced to the virtual world and digitalization. Although the application of new technologies is not new, this year it has received a special treatment, and the business entities have been required to adjust their business, the work from home, the online work, through various Internet applications with which help there can be organized certain meetings, seminars, educative programmes, conferences as well as closer business contacts with a picture and tone being alive. So, digital technologies have, in this socalled. Covid19 year, taken over our entire, both business and a large part of private life. However, if the focus is put on a lot of positive aspects of the application of new technologies, especially in modern business, where their application saves time and energy, and thus money, then a digital registration of business entities is certainly one of them. For example, in Serbia, since 2018, with a few clicks, it has been possible to electronically register a one-member or multi-member limited liability company and an entrepreneur. However, the application of digital technologies in the process of registration and setting up the business entities has existed much longer than the e-registration. Along with the increasing application and importance of digital technologies in this area, there are opened up some new dilemmas and emerged new challenges that modern business entities have to be faced. The same thing can be applied to the new challenges the registration authorities are faced.

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