THE NOTION OF SHAREHOLDER – A CONTROVERSIAL NOTION
Lecturer Lavinia M. TEC
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
The shareholders – socius – are the main actors of social life. Their company status
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
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
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
– whether civil or comercial, as the case may be (the
Lavinia M. Tec, West University Timioara, The Faculty of Law and Administrative Science, firstname.lastname@example.org
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.
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.
For the shareholders’ duties classification, see Laurent Godon, Les obligaions des associés, Economica, Paris, 1999, page 3 and
Dan Andrei Popescu, The articles of association, Ed. Lumina Lex, Bucureti, 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, Bucureti, 2011, p. 87 and following Dan Duescu, Shareholders’rights, Ed. C.H. Beck,