- AbstractDespite the fact that the term in which the liquidator of the dissolved company can be appointed, based on art. 237 of Law no. 31/1990 republished and amended, is clearly defined in the legislation, from the point of view of the practitioner of law its nature presents a special utility that this paper tries to reveal, especially as the practice of the courts has become unitary to this moment through several case decisions that clearly stipulate that it is a prescription term.
General considerations regarding the legal framework
In accordance with the relevant legal texts, the application for the appointment of the liquidator of the dissolved company implies the analysis of the following legal provisions provided in art. 237 paragraph 7.8 of Law no. 31/1990:
,, (7) The resolutions pronounced under the conditions of par. (6) shall be communicated electronically to the appointed liquidator, shall be published on the website of the National Office of the Trade Register and on its online services portal and shall be registered in the Trade register. In the exercise of his liquidation duties, when the liquidator is appointed by the National Office of the Trade Register, at the request of any interested person, he is exempt from any fee, tariff, commission, judicial stamp duty and the like.
(8) If within 3 months from the date of the finality of the dissolution decision no request for appointment of the liquidator has been formulated according to the provisions of par. (6), the National Office of the Trade Register or any interested person may request the court to deregister the company from the trade register. “
Thus, any interested person, as provided in para. 8 of art. 237 LSC, may request the court to deregister the company from the Trade Register if within 3 months from the date of finality of the dissolution decision no request for appointment of the liquidator has been made, but only the legal representative within 6 months of the legal person has the obligation appointment and registration in the trade register of the liquidator.
- Unitary jurisprudence in the field
The practice of the courts in the field is constant in the sense of assessing the term provided by the legal texts enunciated as a decay term.
As it does not have the value of a limitation period, this period presupposes the sanctions imposed by this institution, being practically a special term.
Judicial practice defines prescription as a means of extinguishing obligations and actions, determined by an interest of public order and social stability, so that the factual situations established in a previous time can no longer be changed. It appears as a sanction of the negligent creditor, who allowed more time to pass, without exercising his subjective right.
In the current regulation, the phrase “material right to action” means, according to par. (2) in art. 2500 New Civil Code, the right to coerce a person, with the help of public force, to execute a certain service, to respect a certain legal situation or to bear any other civil sanction, as the case may be.
As it results from the analyzed norm, what is extinguished by prescription is only the material right to action, ie the right to obtain the conviction of the defendant, not the subjective right itself nor the procedural right to action, understood as the possibility of the titular to address the court of trial, to make requests, to request evidence, to invoke exceptions, to exercise legal remedies, to request the execution of the court decision.
The recent practice of the courts is in the sense of the evident ones, respectively finding that the mentioned term is one of prescription and not of decay or of another nature. Thus, the sentence no. 420 of 18.02.2015 pronounced by the Prahova Tribunal – Commercial and Administrative Litigation Section, in retrial, mentions that: it had expired on 01.07.2010, so it no longer had the right to conclude legal acts (it had lost its capacity to use, even more so that of exercise). By default, from that moment on, it could no longer acquire rights in the exercise of its commercial activity. Or, all the acts of “acquisition” are clearly subsequent to this date (the most important in terms of property rights, the contract of sale and purchase of land is from 11.11.2011).
The consecration of the prescription term is practically indirect, since by the sentence no. 111 / 20.02.2012 of the Prahova Court ordered the dissolution of the company, it remained irrevocable by non-appeal and there is no evidence in the file of the appointment of a liquidator within the legal term. In these conditions, because the conditions of art. 237, para. 8 of Law 31/1990 reported to art. 3 para. 4 of GEO 116/2009, the Tribunal will admit the request and will order the deregistration of the dissolved company from the Trade Register.
Another case, in the same sense, finds that “the measure of dissolution of the plaintiff company was ordered by a final and irrevocable court decision, which found that the necessary conditions for the application of art. 237 para 1 lit. b of law 31/1990. By this action, the plaintiff requests the court to revoke the dissolution measure, motivated by the fact that letter a and b, art. 237 of Law 31/1990 was also repealed because after the pronouncement of the dissolution decision the plaintiff fulfilled its obligation to submit the financial statements. It follows that, by its action, contrary to its submissions, the applicant seeks to reform the final and irrevocable judgment, in addition to the remedies provided by law, which is not possible and which is opposed by the principle of the rule of law and security of legal relations.
The European Court of Human Rights has recalled that the principle of security of legal relations implies compliance with the principle of res iudicata pro veritate habetur, according to which no party is entitled to request a revision of a final and irrevocable, binding judgment, and especially not for the purpose of to obtain a retrial and a new analysis of the case.
The essence of art. 237 of Law no. 31/1990 is the fact that the cases provided are for dissolution-sanction and not for voluntary dissolution which takes place by the decision of the general meeting of shareholders / shareholders, so that the principle of symmetry of legal acts cannot be given efficiency.
The relatively recent jurisprudence of the Courts of Appeal states practically unitary the nature of the term provided by the legislator at art. 237 LSC as that of a limitation period. The analysis of this term must be seen through the prism of this institution of law and implies the application of the sanctions provided for this institution.
Thus, we appreciate the fact that this is an imperative term of special prescription, by this regulation derogating practically from the rule of imprescriptibility of non-patrimonial rights, extinguishment of the right, removal of non-viable or ghost companies to which the dissolution institution is applicable for non-fulfillment of legal requirements. .
The legislator has enshrined in another matter of applicability of other non-patrimonial rights this type of exceptions, the one provided by art. 237 not being a singular example. This reasoning was practically intended to give priority to the stability of legal relations over the non-patrimonial, imprescriptible nature of rights (for example: the action in establishing paternity; the action in the relative nullity of a legal act, etc.).
The appointment of the liquidator is likely to be a legal operation intended to lead to a patrimonial result, namely the liquidation of the company’s assets and liabilities, and, consequently, we cannot consider as certain the non-patrimonial nature of the rights to request the appointment of a liquidator.
The exception of prescription of the right to request the appointment of the liquidator is an absolute, decisive exception, which can be invoked by the court ex officio, either judging in a contentious procedure or judging in a non-contentious procedure.
As such, in such situations we have nothing to do with lateness, which is a sanction specific only to procedural deadlines and has applicability only if the party has not exercised a procedural act within the deadline provided by law or established by the court. , so that the decay of the right to perform the act operates again (for example: the plaintiff requests by the summons and the evidence with the interrogation of the defendant, but without justification, does not submit with the summons and the interrogation to be able to be approved by the court at the first trial).
The logical reasoning for which the term provided by art. 237 of the LSC is a prescription period and by no means a procedural or other one is that these terms are not procedural terms, which could be likely to be rejected as late.
Procedural deadlines presuppose the existence of a lawsuit before the courts and the non-fulfillment by the parties within the legal term or within the term established by the judge of a procedural act leads to its intervention. However, the request for the appointment of a liquidator cannot be considered a procedural act as long as there is no pending case before the courts. Administrative liquidation is an out-of-court procedure.
Having the nature of a limitation period, the terms provided in art. 237 LSCs are subject to interruption and suspension, not rescheduling.
We believe that the arguments put forward can be taken into account and acquire the necessary practical applicability as it is necessary to arrive at a unified jurisprudence meant to create a strong practice to guide practitioners of the right to clear solutions and to reflect the essence and nature of the legal act.
At the moment, there is a growing tendency to qualify this term as prescriptive, which must impose in the national jurisprudence a current that would lead to a similar interpretation for the courts.
Law no. 31/1990 updated and republished;
- Nicolae, Extinctive prescription treaty, Universul Juridic Publishing House, Bucharest, 2010;
ICCJ, s. Com., Dec. no. 5073/2005, www.legalis.ro;
Decision no. 153/2014, Constanța Court of Appeal, Second Section of Administrative and Fiscal Litigation