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Course no.

The merchant legal person


- is the most important category of participants in Int. Trade Relations; The types of merchant legal persons are determined by the National Legislations.Therefore, in Ro the professional legal persons are classified as follows : 1.Commercial Companies 2.National Companies which operate in strategic sectors of the national economy as provided by the law no 15/1990 on the Reorganization of the public economic limits. 3.Cooperative Companies 4.Economic interests groups and European ec.interests groups 5.Associations & foundations which perform ec. activities However, all the systems of law include the comm.companies within the category of merchants legal persons.In order to make the difference between comm. comp. and other companies, the system of law of the states in the world use 2 principles as follows: I. Some states use only the principle of speciality of the abstract capacity of the comm.comp. Therefore, in acc. to this principle ,the comm. comp. is the company which performs commercial activities Other states, such as Ro, use the principle of speciality together with another principle ,the principle of the juridical form of the comm. comp. Therefore, the comm. comp. are those who perform commercial activities and are organized in one of the juridical forms provided by the law The comm. comp. may be classified acc. to several criteria : - in the Ro law, the most imp is the criteria of their nature and the imp of the personal element and the material element : company of persons/capitals All syst of law provide the distinction between the comp. of persons and comp. of capitals , they also regulate the limited liability company which can not be included in one of these 2 categories. In most of the states, the law recognizes the quality of legal persons for comm. comp. such as , for ex in Ro. In other syst of law such as the anglo-saxon syst of law, the comm. comp. of persons ,also known as private partnership are not legal persons but they have a certain legal capacity because they are allowed to conclude comm. contracts and defend their interests in a Court of Law. In most syst of law, the constitutive act of the company which includes the companys cotract its /its(?)subject to publicity as follows : II.

In the 1st place it is registred within the Register of Trade In the 2nd place it is published within the official Monitor of the Official Journal of the country

In all syst of law, the constitutive act of the company must contain at least the following elements : - the contribution of the associates at the capital of the comp. - the manner in which the associates share the profit and the losses of the comp - affecio societatis meaning the willing of the associates to participate at the performance of the common activity and the common use of contribution and capital in order to obtain and to share the profits There are also some differences from one state to other ,concerning the organization of comm. comp. Actually, there are 2 syst of management of comm. comp. as follows : 1. The traditional system - within this,the general meeting of associates or shareholders appoints the Administration or the Board of Administration and the chairman of the board. The control of the comp. operations is ensured by internal auditors (censor) elected by the General Meeting 2. The dualistic system- which is a system of german tradition and within this system , the Gen. Meeting of associates or shareholders appoints the ( supervision) Board and this Board elects the directorate.+ The executive of the comp. is the directorate ,composed by one director or a Board of directors. The control over the comp. s operations and the activity of the directorate is performed by the? In Ro, both systems of management are possible , but the dualistic system is possible only for companies by shares.

The applicable law to the organic status of the Commercial Companies

The organic status of the comm. comp. = all the elements related to the creation, organization, the functions, reorganization, the dissolution and the liquidation of the comm. comp. We have to determine the applicable law to the organic status of the comm. comp. in order to determine if a particular comm. comp from a different country has the capacity to conclude International Trade Contracts.The applicable law to the organic status of comm. comp. is its national law meaning the law of its nationality. The nationality of a comp is determined in a different manner by different systems of law. Actually, there are 4 criteria used to determine the nationality:

1. The criterion of the place of the main activity it is used by the states from Southern or Central America . Acc. to this criterion, the comm. comp. has the nationality of the state where is performing the main activity and obtains the most of its turnover 2. The criterion of the place where the company is set up used in Anglo-saxon syst of law or in Russia. Acc. to this one, the comm. comp. have the nationality of the state where there are set up, no matter where their headquarters are located 3. The criterion of the companys control it was used in France during the II W.W. in order to determine the nationality of comm. comp with the foreign capital or banking capital . Acc. to this criterion, the comm. comp. has the nationality of the shareholder who has the most important contribution to the capital of the company. 4. The criterion of the place of headquarters most states use this one such as Romania. Acc to this crit, the comm. comp. has the nationality of the state where its headquarters are located A comm. comp. is a creation of the law of a certain state. Therefore, in order to be able to perform comm. activities in a different country it must be recognized as a subject of law by the legal system of the country . This recognision is very important for the International Activity of comm. companies and,therefore,the states have adopted several International Conventions in order to regulate this matter. Generally, a comm. comp. from a different country is automatically recognized by each state under the condition of reciprocity if the comp fulfills the validity conditions requested by international law. However, there are 2 limits when recognizing a foreign comm. comp. as follows: 1. The comm. companies can not have in the foreign country more rights than it has in its national country acc. to its national laws 2. The comm. companies can not have in the foreign country more rights than the national comm. comp. of the country .