Aspects Regarding The Notion Of Professionals And The Classification Of Professionals

Author:Ileana Voica
Position:Department of Law, Bucharest University of Economic Studies
Pages:311-313
SUMMARY

The work summarizes the theoretical consequences of introducing the notion of "professional" in the New Civil Code. This notion outlines a new conception in the commercial or business law doctrine, being an effect of replacing the old term "trader" (natural person or legal person) used for a long time, not only by theoreticians, but also by practitioners with the complex term "professional trader"... (see full summary)

 
FREE EXCERPT
ASPECTS REGARDING THE NOTION OF PROFESSIONALS
AND THE CLASSIFICATION OF PROFESSIONALS
Lecturer Ileana VOICA1
Abstract
The work summarizes the theoretical consequences of introducing th e notion of "professional" in the New Civil
Code. This notion outlines a new conception in the commercial or business law doctrine, being an effect of replacing the
old term "trader" (natural person or legal person) used for a long time, not only by theoreticians, but also by practitioners
with the complex term "professional trader". Thus, not only the notio n of professional is of interest here, but also the
classification of professionals. Moreover, with th e entry into force of the New Civil Code, the old objective concept of
defining commercialization, set by the old Commercial Code from 1887 (implicitly repealed by the New Civil Code, on
October 1, 2011 ), was aba ndoned and a formal criteria was introduced, procedurally regarding the definition of
commerciality (registration in the Trade Register of any professional tra der, be it a natural person or a legal person).
Keywords: professional, New Civil Code, professional trader, professional non-trader, uniqueness of priva te
law.
JEL Classification: K15, K22
1. Introduction
The entry into force of the New Civil Code (N.C.C.), on October 1, 2011, generated, in our
country also, the outline of the monistic conception. Thus, the theory regarding the duality of private
law; civil law - commercial law has been replaced, for the most part of the specialized doctrine, by
the conception (supported by legal regulation) regarding the uniqueness of private law (civil law
being considered dominant, but seconded by special commercial law).
As it has been shown in the commercial doctrine2, "there are a number of difficulties regarding
the conceptual framework of ≤professionals≥ and especially of the professional traders arise."
2. The notion of professional
Starting with art. 3 of The New Civil Code, we find out right from par. (1) that:
"The provisions of this Code also appl y to the relations between professionals, as well as to
the relations between them and any other subjects of civil law."
As such, the provisions of the new Civil Code apply directly to professionals both in their
relationships, as well as in their relationships with individuals3.
Article 3 paragraph (2) N. C. C. provides: "All those who operate a business are considered
professionals".
So, the distinction between professionals and other civil law subjects is that the former operate
a business.
In art. 8 paragraph (1) of Law no. 71/2011 for the implementation of Law no. 287/2009
regarding the Civil Code, it is shown: “the notion of < professional> provided by art. 3 of the Civil
Code includes categories of trader, entrepreneur, economic operator, as well as any other persons
authorized to carry out economic or professional activities, as these notions are stipulated by the law,
at the date of entry into force of the Civil Code."
In art. 6 of the same Law no. 71/2011 for the implementation of the New Civil Code, it is
stipulated that the references in the law to the term "trader" are considered to be made to the person
subject to registration in the Trade Register.
1 Ileana Voica Department of Law, Bucharest University of Economic Studies, Romania, ileana_voica@yahoo.com.
2Smaranda Angheni, Commercial law. Professional - traders, C. H. Beck Publishing House, Bucharest, 2013, p. 1.
3 See Fl. A. Baias, E. Chelaru, R. Constantinovici, J. Macovei (coordinators), The new Civil Code, commentary on articles art. 1
2664, C. H. Beck Publishing House, Bucharest, 2012, p. 4.

To continue reading

REQUEST YOUR TRIAL