The associative forms in Romania following the new Civil Code, republished in 2011

Author:Angela Miff
Position:Faculty of Economics and Business Administration, University 'Babes-Bolyai' Cluj-Napoca, România
Pages:289-307
SUMMARY

During time, the association has evolved as a form of socio-economic organisation in order to perform non-professional or, by case, professional activities. The legislative sources have emphasized, in time, the variety of the ways of manifestation of the association among different law subjects - physical and/or legal persons. The new Civil Code (2009), republished in 2011, in force since the 1st ... (see full summary)

 
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The associative forms in Romania following the new Civil Code,
republished in 2011
Lecturer PhD Angela MIFF
1
Abstract
During time, the associa tion has evolved as a form of socio-economic organ isation
in order to per form non-professional or, by case, professional activities. The legislative
sources have emphasized, in time, the variety o f the ways of manifestation of the
association among different law subjects physical and/or legal persons. The new Civil
Code (2009), r epublished in 2011, in force since the 1st October 2011, fundamented on the
monist approa ch of regulation, a s the common-law norm for all the domains that the letter
and the spirit of its provisions refer to, regulates the contr act of association, in chapter VII
of the 5thBook; apar t from the gener al nor ms applicable to all such contra cts of
association , the present code replaces the for mer civil society without lega l per sonality
with the present simple society and, also as a novelty element, tra nsposes the regula tion of
the silent pa rtnership from the former framework of the Commercial Code (1887,
abrog ated almost in totality) in the section 3 of the same chapter VII, the 5th Book of the
code. The elements that ar e similar with the former r egulation outline the continuity
aspects in the conception of these jur idical institutions in a modern approa ch that
transposes a spects which were cla rified by the jurispru dence or the legal doctrine.
Keywords: a ssociation, associa te, right, liber ty, simple society, associative forms,
the silent par tnership.
JEL Classification: K19, K22, K40
1. Introduction
Association has represented, since older times, a form of socio-economic
organisation with the purpose of performing non-professional or, by case,
professional activities. The legislative sources have emphasized, during time, the
variety of the modalities of manifestation of the association among different law
subjects - physical persons and/or legal persons.
The legislative confirmation, as a fundamental principle of liberty and of
the association right, is stated both, at the international level, in international
treaties and conventions, as well as in the national legal system of the states. So, in
the context of the international law, can be invoked, as example, the Universal
Declaration of the Human Rights (1948)2, art.20 (at the global level), or the
Convention for the protection of the Human Rights and the Fundamental Liberties,
1 Angela Miff - Faculty of Economics and Business Administration, University „Babeş-Bolyai”
Cluj-Napoca, România, angela.miff@econ.ubbcluj.ro
2 The Universal Declaration of Human Rights (1948), adopted by General Assembly of the United
Nations, resolution no. 217 A (III) of 10th December 1948, states in art.20: ”(1) Everyone has the
right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to
an association. “
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290
art.11 (at the regional European level)
3. In the national system, the statement of the
associative forms brings in view, first, the provisions of art.40 of the Constitution,
revised in 2003, according to which the citizens are entitled to exert, within the
law, the right of association in political parties, unions, trade unions and other
associative forms. The constitutional legal norm also indicates the limits of the
exertion of this important right4.
The association, in its diversified forms of manifestation as an expression
of the right to association5, represents a modality of colaboration and cooperation
between persons for achieving a purpose for - profit or, by case, non - profit, and is
part of the private law domain. Due to the fact that, in the last years, at the
legislative level there have been significant changes, in our country, as a
consequence of entering into force of the new codes for the regulation of the
private law and also public law relations, we would like to outline, for the
begining, some aspects that emphasize the impact of the new Civil Code,
republished in 2011, on the private law domain.
2. The impact of the Civil Code, republished in 2011,
on the private law domain.
The associative forms between tradition and present days
The entering into force of the Civil Code, republished in 2011, and of the
Law no.71/2011 for the implementation of the new code, marked, as we consider,
the unification of the private law around the civil law branch, with the consequence
of eliminating the former and traditional distinction between the civil law branch,
on one hand, and the commercial law branch, on the other hand.
The legislative solution was founded on the monist conception of the
regulation according to which, in a unique code, were subsumed legislative
segments that interested the entire aria of the private law, including those
concerning the relations and the professionals of the economic activities named,
3 The Convention for the protection of the Human Rights and the Fundamental Liberties was ratified
by Romania through Law no.3 0/1994, which in art.11 disposes that any person has the right to a
free and peaceful association, including the right to constitute trade unions with others and to be
afiliated to unions for the protection of their own interests.
4 Art.40 “Right of association”of the Constitution, revised in 2003, states: “(1) Citizens may freely
associate into political parties, trade unions, employers' associations, and other forms o f
association. (2) The political parties or organizations which, by their aims or activity, militate
against political pluralism, the principles of a State governed by the rule of law, or against the
sovereignty, integrity o r independence of Romania shall be unconstitutional. (3) Judges of the
Constitutional Court, the advocates of the people, magistrates, active members of the Armed
Forces, policemen and other categories of civil servants, established by an organic law, shall not
join political parties. (4) Secret associations are prohibited“.
5 From the juisp rudence point of view, the former Supreme Court of Justice, comm. div., by decision
no.511 of 3rd November 1994, stated upon the setting up of the trading companies, in the conditions
of Law no.31/1990, in the sense that “it is dominated by the principle of the liberty of association of
the physical and legal persons. The limitations brought to the liberty of association, by the
imperative legal norms, should be strictly interpreted”, in the Law Review no.4/1995, p. 73.

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