The independence principle for the subject of administration of stock trading companies. Comparative study of European legislation

Author:Dragos-Mihail Daghie
Position:Dunarea de Jos Galati University, Law Faculty, Law Department
The independence principle for the subject of administration of stock
trading companies. Comparative study of European legislation
Author Assist.univ.drd. Dragoş-Mihail Daghie
Dunărea de Jos Galaţi University, Law Faculty, Law Department,
Summary. One of the main contemporary reforms of the trading companies in Romania has been realized through Law
no. 441/2006, through which, besides the introduction of corporatist government principles, other legislations and other
conceptions of absolute novelty have been transplanted. Among these new prin ciples there is also the independent
administrator, which founds its regulation in art. 1382 from Law no. 31/1990 according to which „through the constitutive
paper or through the decision of the general assembly of the stock holders, can foresee that one or more members of the
administration committee to be independent”. The appointment of some independent administrators represents putting in
application of the p rinciples of the Organization for Coop eration and Economical Development concerning new
corporatist governing concepts by implementing of some fundamental rights of the stock holders, rights that the stock
holders detain apart from their participation to the social capital. In Romania, in comparison with countries like England,
France, Spain, Germany, where the corporative governing has reached another implementation level, the new principles
brought in the life of the stock trading company, concerning its management, is at the beginning of the road; the next step
is to confirm or, on the contrary, contest their necessity.
Key words: rights, stockholders, administrator, independent.
1. Introductive notions
The apparition of the commercial society within the frames of the human social relations was determined by
the insufficiency of the individual efforts to satisfy the complexity of operations that the development of
commerce implies1. Therefore, the individual is limited as far as his effort and his possibility are concerned
to cover by himself all the needs that commerce requires2.
The ulterior evolution of the new entity was striking, and nowadays, we assist to the separation of a new
branch from the commercial law, that is the society law or the law of commercial societies.
This development of the commercial societies belongs to the corollary of viability/stability and utility of
commercial activity deployment under this organization form of the individuals. Last but not least, the
perpetuation, and even the amplitude gained by the commercial society owe to the efficiency that supported
the permanent production of resources and money for the associates.
From the five types of commercial societies, the stock company has evolved into the most complex and
developed type of company, as far as the efficiency of its actions outside the commercial area3. The French
Doctrine4 places the stock company5 on the first place comparatively to other forms of commercial
companies due to its importance. Closely related, the Spanish Doctrine6 recognizes the distinctivity of the
stock company7 admitting its appreciation among the other forms of commercial companies. Further more,
the stock company is qualified in the Italian Law8 as being the normative prototype of capital companies,
1 St. Cărpenaru, Drept comercial român, 8th edition, Universul Juridic Publishing House, Bucharest, 2008, pg. 149; M. Juglart,
B. Ippolito, Les sociétés commerciales. Cours de droit commercial, 10th edition, 2nd volume, Montchrestien Publishing House,
Paris, 1999, pg. 7; G. Ripert, R. Roblot, Traité de Droit commercial, tome 1, volume 2, 18th edition, L.G.D.J. Publishing House,
Paris, 2002, pg. 2; Ph. Merle, Droit commercial. Sociétés commerciales, 11th edition, Dalloz Publishing House, Paris, 2007, pg. 1.
2 F. Sáchez Calero, J. Sáchez-Calero Guilarte, Instituciones de Derecho Mercantil, 29th edition, volume I, Ed. Aranzadi, Navarra,
2006, pg. 286.
3 St. Cărpenaru, op. cit., pg. 326; Y. Guyon, Droit des affaires, tome 1, 12th edition, Economica Publishing House, Paris, 2003,
pg. 275.
4 G. Ripert, R. Roblot, op. cit., pg. 252.
5 In fact, the commercial stock company has another denomination in the French legislation, and that is public limited company.
6 Memento Práctico Francis Lefebvre, Sociedades mercantiles 2009, Francis Lefebvre Publishing House, Madrid, 2008, pg. 42.
7 In the Spanish Law the stock company has a denomination which resembles to that stipulated in the French legislation, that is
sociedad anónima – public limited company.
8 Compendio di Diritto Commerciale, XII edizione, Simone Publishing House, Napoli, 200 9, pg. 123.

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