Papers by Ana Maria Lupulescu
The general partnership is the prototype of company of persons, since it is set up and functions ... more The general partnership is the prototype of company of persons, since it is set up and functions based on the personal qualities of the associates, who know each other and trust each other, reason for which they agree to be unlimitedly and jointly bound for the obligations of the company they set up. Although this legal form of company is not very widespread in practice, which is undoubtedly explained by the risk determined by the unlimited and joint liability of the associates, the general partnership still presents some unquestionable advantages, worth to be emphasized, starting from the simplicity of the rules concerning its setting up and functioning, or the possibility of its creation even in the absence of initial contributions of significant value. Moreover, the continuity of the associates' options for this legal form of company demonstrates that it is not totally obsolete and lacking in practical interest, but it has successfully survived the passage of time, also consi...
Juridical Tribune, 2019
The company by shares is the prototype of company of capitals, since this legal form of company i... more The company by shares is the prototype of company of capitals, since this legal form of company is set up and functions only based on the contributions made by the associates, who are liable for the social obligations within the limits of these contributions, so that the person of the associates or the trust between them is irrelevant. In exchange for the contributions they make within the company, the shareholders receive negotiable instruments, which can be transmitted freely. From this perspective, the company by shares was conceived as a form of organizing large-scale activities that require and concentrate important funds, made available to the company by a large number of shareholders. These significant aspects, which have influenced the legal regulation applicable to it, characterized by excessive formalism, complicated and strict rules, with countless conditions imposed by the law in order to protect both third parties and minority shareholders, lead to the conclusion that t...
Perspectives of Business Law Journal, 2014
The new Civil Code contains the general regulation applicable to all companies, which is, however... more The new Civil Code contains the general regulation applicable to all companies, which is, however, to be completed with the special legal provisions relating to different categories of companies, which have remained outside the Civil Code. Thus, the Romanian legislator does not include within the new Civil Code the legal regulation applicable to companies with legal personality, without taking into account the example of other modern European legal systems of monist approach, such as the Italian system of law. Therefore, taking into account that even the legislator qualifies the provisions of the Civil Code which governs the company as the common law in this field, while maintaining the special legal regulation in relation to certain categories of companies, an analysis of the legal provisions on cooperative companies, emphasizing their particularities, as well as the necessary correlations between the general and special regulation, appears as extremely useful both theoretically an...
The merger, division and separation of companies, within the meaning of Law no. 31/1190 republish... more The merger, division and separation of companies, within the meaning of Law no. 31/1190 republished, represent from a juridical point of view ways of reorganizing the companies with legal personality, through which there are accomplished, in an economic perspective, a number of strategic options for restructuring, rationalization of internal organization of the participating entities, the concentration of activities and capital in order to better respond to economic realities. Aware of the importance of these operations, the legislator has been working constantly to create a coherent legal framework adequate to achieve them, by simplifying the applicable procedure and eliminating any obstacles or constraints, at least of a legislative nature. Equally, given that companies governed by Law no. 31/1990 republished are legal persons, the juridical regime applicable to mergers, divisions and separations involving these companies has to be defined and interpreted in the broader context of...
This approach proposes an analysis of the legal rules applicable to the simple company, especiall... more This approach proposes an analysis of the legal rules applicable to the simple company, especially emphasizing significant issues concerning its functioning. The utility of such an approach is obvious, at least given the fact that, according to the legislator's express option, the rules on the simple company constitute the common law in relation to companies, being applicable in the silence of the special law regulating other forms of companies. The main characteristic of the simple company is that this form of company has no legal personality. Therefore, the simple company contract produces juridical effects between associates, and even towards third parties, but it does not create a new legal person distinct from its members. This aspect implies significant particularities in relation to the rules that govern the functioning of the simple company, as emphasized below.
The limited liability company, as regulated by Company Law no. 31/1990 republished, is the most u... more The limited liability company, as regulated by Company Law no. 31/1990 republished, is the most used legal form of company, not only in Romania but also in other European countries. The option of the associates for the analyzed form of company is based on the advantages arising from its particularities, as they result from its specific juridical nature. Within this context, we consider that an analysis of this form of company, even though is not intended as exhaustive, but highlights particular significant aspects that underline its juridical specificity, may ap pear important and particularly useful, both for analysts in law and practitioners.
The new Civil Code introduces several important changes and clarifications regarding the ownershi... more The new Civil Code introduces several important changes and clarifications regarding the ownership right in general, and the private ownership right, in particular, so that it becomes necessary, for both the analyst in law and the practitioner, to make a comparison between the old regulation contained in the Civil Code of 1864 and the current regulation provided by the new Civil Code. At least in theory, the new legal framework in this area shows greater consistency and legal precision, although it is not entirely safe from any criticism.
The general partnership is the prototype of company of persons, since it is set up and functions ... more The general partnership is the prototype of company of persons, since it is set up and functions based on the personal qualities of the associates, who know each other and trust each other, reason for which they agree to be unlimitedly and jointly bound for the obligations of the company they set up. Although this legal form of company is not very widespread in practice, which is undoubtedly explained by the risk determined by the unlimited and joint liability of the associates, the general partnership still presents some unquestionable advantages, worth to be emphasized, starting from the simplicity of the rules concerning its setting up and functioning, or the possibility of its creation even in the absence of initial contributions of significant value. Moreover, the continuity of the associates' options for this legal form of company demonstrates that it is not totally obsolete and lacking in practical interest, but it has successfully survived the passage of time, also consi...
Juridical Tribune, 2012
The new Civil Code introduces several important changes and clarifications regarding the ownershi... more The new Civil Code introduces several important changes and clarifications regarding the ownership right in general, including in the matter of the ways of acquiring private ownership. Among the ways of acquiring the private ownership right, the accession gets in the new Civil Code a legal regulation which is much more precise and better systematized, especially in relation to the artificial immovable accession, the legislator thus responding to practical needs, as they have been raised in the jurisprudence, but also to controversial issues outlined in the juridical doctrine. This paper aims to conduct a comparative analysis, which is necessary to both the analyst in law and the practitioner, between the old regulation contained in the Civil Code of 1864 and the current regulation provided by the new Civil Code in the field of immovable accession, with special attention to artificial immovable accession, due to its practical incidence.
Perspectives of Business Law Journal, 2013
The New Civil Code makes the transition, for the first time in the Romanian legal system, from th... more The New Civil Code makes the transition, for the first time in the Romanian legal system, from the duality to the unity of private law. Consequently, the Civil Code contains a legal regulation more structured and comprehensive, although not entirely safe from any criticism, in relation to the company, with particular reference to the simple company, regulation that expressly characterizes itself as the common law in this field. Within these general provisions, the legislator has considered the joint venture, to which, however, as in the previous regulation contained in the old Commercial Code – now repealed –, it does not devote too many legal provisions, in order to maintain the flexibility of this form of company. Therefore, this approach appears particularly useful for analysts in law and, especially, for practitioners, since it aims to achieve a comprehensive analysis of the joint venture, form of company with practical incidence.
The achievment of the balance between the offer and the demand in a market economy makes that som... more The achievment of the balance between the offer and the demand in a market economy makes that some merchants win and others lose. Losing in business is a normal risk, usually assumed by any merchant. But when the merchant record losses, the issue is of engaging his responsibility before all those that may be damaged due to his negative results.
Theoretical and Applied Economics, 2008
According to the Romanian law the debtor that faces financial difficulties of a certain extent ca... more According to the Romanian law the debtor that faces financial difficulties of a certain extent can be the object of the insolvency procedure, regulated by Law no. 85/2006 concerning the insolvency procedure. Because the insolvent debtor is no longer trustworthy to its contractual partners and cannot execute the assumed obligations, there is a risk that these contracts cease, or the services that are incumbent on contractual parties are not executed. This is why, it is very important to know within the insolvency procedure and, especially during the judicial reorganization period, what will be the treatment of contracts concluded prior to the opening of this procedure and still not executed, the so-called "contracts under execution". Also, after clarifying the concept of contract under execution, it is important to establish who has the right to opt between their continuation, or their cancellation. On the other hand, there are presented the special rules provided by Law no. 85/2006 for some categories of contracts concluded prior to the opening of the insolvency procedure, such as: labor, lease, commission contracts, master of netting agreement or contracts concluded intuitu personae or by a debtor that is the owner of a leased building, etc.
Proceedings of the International Conference on Business Excellence, 2021
The registered capital of the company by shares is divided into fractions known as shares, which,... more The registered capital of the company by shares is divided into fractions known as shares, which, unlike the parts of interests or social parts, represent negotiable instruments, presenting first of all the advantage of being negotiable and freely transferable, subject to limitations that could be introduced by the associates by the constitutive act. Therefore, in exchange for the contributions made to registered capital of the company by shares, the associates receive a number of shares corresponding to the value of these contributions, which represents a certain fraction of its registered capital. Taking into account the negotiable nature of the shares, the quality of shareholder derives and is more related to the quality of owner of shares, dissociating itself from that of signatory of the company’s constitutive act, obliged, inter alia, to make contributions, the latter quality being relevant only at the moment of incorporation of the company. Actually, during the existence of t...
Uploads
Papers by Ana Maria Lupulescu