The notion of shareholder ? a controversial notion

• Author: Lavinia M. TEC
• Pages: 352-365

THE NOTION OF SHAREHOLDER – A CONTROVERSIAL NOTION

Lecturer Lavinia M. TEC

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Abstract

The notion of shareholder stirs theoretica l and practical concern. The tra ditional qua lification criteria – the

contribution, affectio societatis, participat ion to profit and loss, the power of intervention in the social life – prove to

be useless when facing particular situations. The usufruct of sha res and the state of contr ibution in kind involving

common goods of the spouses confuses the notion of sha reholder. The conclusion is tha t we a re witness to this

notion’s fall, which can be brought to a stop by means of legal or contractual mechanisms.

Key-words: shareholder, company, contribution, usufruct, spouse

JEL Classification: K20

Introduction

The shareholders – socius – are the main actors of social life. Their company status

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has

two sides or components: an active one, that comprises political or non-patrimonial and

pecuniary rights or patrimonial rights awarded to the shareholder and the passive one, that

comprises political and pecuniary duties of the shareholder

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.

The characteristic trait of the social rights consists of the hybrid nature of the

shareholder’s rights and duties: patrimonial and non-patrimonial.

The range of the shareholder’s r ights and duties varies according to the company form or

type, as well as to their legal or conventional source

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.

The shareholder cannot be regarded individually or as single subject of company law. The

quality of shareholder is complex as, on the one hand, the social rights and duties influence the

spouses’ co mmunity of goods, in case the shareholder is married and, on the other hand, they

give rise to fiscal effects. Thus, the company law intertwines with civil law, family law, tax law.

At the same time, there are concurrent situations where several persons compete for the

quality of shareholder, in the absence of legal criteria that allow the establishment of this quality.

In this context, the notion of shareholder becomes interesting and useful. Yet, could one

precisely determine who or what is the shareholder? Is he/she the one who owns company

shares? Is he/she the one who brings contribution? Is he/she the one who actually exercises

political rights, thus interfering with the company management? Is he/she the one who bears the

risk of business?

Given the silence of law, the burden of sheding light upon the content of this notion is

taken by doctrine and case law.

The Romanian doctrine has not focused on the notion of shareholder, but on the specific

conditions of the articles of association

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– whether civil or comercial, as the case may be (the

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Lavinia M. Tec, West University Timioara, The Faculty of Law and Administrative Science, lavi_tec@yahoo.com

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We borrowed this term from Sandie Lacroix-De Sousa, who enstated it in”La cession, de droit sociaux à la lumière de la cession

de contrat”, L.G.D.J., Paris, 2010. The author defines the company stat us as the shareholder’s place within the articles of

association. See S. Lacroix-De Sousa, cited work, p. 211 and foll.

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The hybrid nature of the company rights and duties r epresent the characteristic trait of these rights, which make the articles of

association a non/typical contract, not adapted to the classical criteria of contract classification.

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For the shareholders’ duties classification, see Laurent Godon, Les obligaions des associés, Economica, Paris, 1999, page 3 and

following

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Dan Andrei Popescu, The articles of association, Ed. Lumina Lex, Bucureti, 1996, p. 181 and following; Francisc Deak, Treaty

of civil law. Specific contracts, Ed. Actami, Bucharest, 1999, p. 453 and following; Flaminia Stârc-Meclejan, Shareholders’ vote

within the company, Ed. C.H. Beck, Bucureti, 2011, p. 87 and following Dan Duescu, Shareholders’rights, Ed. C.H. Beck,