The paper "Legal liability company manager" has a wide range of social, legal implications affecting them both on the right specialists (academics and practitioners) and any company manager, is a true guide of his conduct, to avoid legal liability. At the same time, it is necessary and appropriate. Necessary as systematically gathers, doctrine and practice, being a good research base and deepening of civil liability of the administrator. Appropriate, as is done in a time when the market economy in Romania has entered a mature phase, the stage managers of companies (in fact, companies are major operators) should materialize responsibilities that they assume within each legal relationship you establish the company name given.
During this work we tried to provide a broad overview of the complex issues of civil liability company manager, the more so as, provisions of the new Civil Code - Law no. 287/2009 introduced new rules on the stage of Romanian law, directly applicable to the company manager. In essence, the book is a journey on controversial doctrinal opinions, "doubled" the solutions offered by the courts, where possible, recent (including interest of the law on liability issues manager, fragmented solved in practice, decisions Constitutional Court on the unconstitutionality of these laws with implications in the analysis), offering the solution that I considered to be appropriate.
As the administrator responsible companies is well determined by law, from the moment the company is incorporated, continued with its operation and administration, by dissolution and liquidation phase, we considered useful to analyze and obligations of the administrator, in all stages of life society, underlining its tort or contractual liability in case of failure, considering sanctions, and even proposing, where we were allowed, modification of legal texts in this respect, filling gaps law and "eliminate any inaccuracies legislative ".
Regarding the responsibility of the management of the company in insolvency proceedings, is covered and this period of life of companies, with specific consequences, according to the regulations contained in Law no. 85/2006, as amended. The paper includes an analysis of the actual opinions in the literature and practical legal solutions in matters of insolvency administrator on issues of liability conditions, gave an analysis of each illegal acts, in part, provided by art.138, with specific and position supporting or criticizing the legal literature and judicial practice in the field.
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Throughout this thesis we have been trying to offer a vast overview of the complex area of the company administrator’s civil legal liability. Essentially, the thesis is a reflection on the controversial doctrine opinions, „doubled” by the solutions offered by the legal instances, which are as recent as possible (including the appeals in the law interest regarding some problems related to the administrator’s liability, without unitary solutions in practice, as well as the decisions of the Constitutional Court regarding some unconstitutionality exceptions of the law texts interconnected with the analysed domain), also offering the solution we have considered adequate.
Chapter I and II are focused on the legal liability, having as main character the company administrator and presenting an overview of the liability forms, the principle of the liability solidarity, the sanctions specific to both the administrator patrimonial liability (the obligation of paying remedies), and non-patrimonial liability: the administrator revoking, the problems occurring in the legal practice (decision-making competence, the effects and the juridical control of the revoking decision).
The chapter III includes a detailed analysis of the administrator liability action (categories, special characteristics, procedural aspects, including elements of compared law and tangentially debating the difficulty of its arbitration), and of the liability exoneration cases, in this domain the “business judgement rule” being relevant.
Chapter IV and V are dedicated to the company administrator civil liability for the company and for the third parties. In the case of the liability for the company, three forms of liability are analysed in details: direct liability for inobservance of the contractual obligations (in the memorandum of association, in the board general meeting decision which assigned the functions, and ... why not, in the contract concluded with the company) and legal obligations, indirect liability or the guarantee for the action of a different person, and the regression liability; all these are presented together with their legal fundamentals and the cases where they apply.
Taking into account the fact that the company administrator has got obligations well-defined by the law, starting with the moment when the company is set up, and continuing with the company functioning and administration, until the phase of dissolution or liquidation, we have considered useful to analyse the administrator obligations in all the company existence phases, underlining the delinquent or contractual character of the administrator liability in case of inobservance, analysing the sanctions to be applied, and even proposing, where we were permitted, the modification of some law texts regarding these aspects, completing the law lacunae, „eliminating possible legislative inconsistencies”. One important part of the chapter refers to the administrator liability for the fraud committed against the company and we have been trying to propose solutions for a series of problems regarding the definition of the expression „fraud against the company”; the discrimination between the fraud and the power abuse, as well as the relation between the sanctions for the exclusion and revoking of the associate administrator, namely when his exclusion applies and when his revoking applies.
Contrary to the opinions expressed in the doctrine, the administrator commits to the contractual or delinquent liability for the third parties, thus representing one of this thesis objectives. The analysis of this form of liability is even more necessary due to the fact that the law regulates a series of cases where the administrator directly commits to his liability for the third parties. The complexity of the issue of the administrator liability for the third parties for the actions and operations done during the company set up, in case of abusing the assigned function limits, or as the company guarantor, has been analysed at the end of this chapter.
Chapter VI is dedicated to the administrator liability in the insolvency procedure and it presents the problems regarding the qualification of the company administrator by the legislator as „managing body”, the conditions of committing to the liability (illicit facts expressly regulated, the prejudice and its dimensions, causality relation and the managing bodies culpability), also defining two requisites, without which, the liability according to Article 138 in the Insolvency Law no 85/2006, with its subsequent modifications, cannot apply: the open insolvency procedure and the insufficiency of the debtor’s assets – company. Moreover, the liability action is analysed (titular and legal effects), the problems occurred in practice compared to the guaranteeing measures of the assets of the managing representatives and the process of implementation of the legal decisions stipulating the commitment to the liability. Under these circumstances two types of the administrator liability can be identified: as managing representative: with a direct liability for the company, and a second also direct liability for the prejudiced creditors committee, i.e. for the creditor holding more than half of the claims value. In return, the compensation of the prejudice of the social creditors paid by the managing representative shall be done indirectly by covering one part of the company debts.
The chapter contains a real analysis of the opinions expressed in the speciality literature of the solutions in the legal practice for the administrator liability problem in case of insolvency, and, at the same time, it represents a reflection on the opinion expressed in the doctrine on the administrator liability in case of insolvency (contractual liability, aggravating, and direct, for the company, (not for the third parties) – opinion which we do not agree with. Therefore, we have been trying to recalibrate the legal character of the administrator liability in case of insolvency, proposing its definition as a special form of civil delinquent liability, both for the company and for the creditors.
At the end of the thesis the CONCLUSIONS and the Proposals of “de lege ferenda” are defined, with the mention that a series of proposals of “de lege ferenda” have been made throughout the thesis, where possible, related to a personal consideration, or to some legislative inconsistencies, followed by the corresponding reflections on the respective legal provisions.