The Fiduciary Management And Its Applications In The Romanian Law

• Author: Günay Duagi
• Position: Doctoral School of Law, Bucharest University of Economic Studies, Romania
• Pages: 257-264

THE FIDUCIARY MANAGEMENT AND ITS APPLICATIONS

IN THE ROMANIAN LAW

PhD. student Günay DUAGI1

Abstract

The fiduciary management represents, together with the fiduciary guarantee, the most used type of fiduciary

contracts. This modality of fiducia has become the preferred way of using this institution in practice, a fact proved by the

registrations in the National Register of Mobile Publicity. Moreover, this branch of the fiducia is in fact the archetype of

this institution. The benefits of the fiduciary management are numerous and were only partially discovered in practice in

Romania and through this study we want to highlight other benefits. Among the benefits of this type of fid ucia with

important implications in the civil circuit we mention the possibility of entrusting a patrimonial mass to some

professionals in order to manage these assets as efficiently as possible, maximizing the profit generated by the fiduciary

mass without the impediments related to the formalities required for a mandate, overcoming the problems related to

representation of the beneficiary in the context of corporate, capital market or transaction deals. As regards the practical

applications of fiduciary ma nagement, these can come from various fields of civil law. Among the most used we list the

following: shareholder management in a commercial company, real estate management, management of a trust consisting

of financial assets, manag ement of civil la wsuits, management of assets owned by foreign residents, business

management, management of the assets of minors / incapable.

Keywords: fiducia ry management, fiduciary, fiduciary contract, fiduciary benefits, applications of the fiducia

JEL Classification: K12, K15, K22

1. Introduction

The fiducia becomes a well-known institution in Romania, after the first years when it was

analyzed only by the legal professionals. The proof of this evolution can be seen in the National

Register of Mobile Publicity (NRMP) where a number of such operations are registered. As indicated

by the provisions of the Civil Code2 governing fiducia, there are two major types of fiduciary

relations: fiduciary management and fiduciary guarantee.

Indeed, the Civil Code does not provide for any restriction on the purpose of using the

fiduciary contract, except for the restriction of use of this contract for acts of indirect liberalities.

In this respect, the fiduciary contract may be used for various purposes, as long as the scope

is expressly provided for in the agreement. However, based on the practice, two main types of goals,

mentioned above, have developed over time.

Fiduciary management is still in its beginning in Romania, because this concept is not fully

understood by the potential users. However, fiduciary management is and should be easier to

understand and implemented in Romania, similar to other types of administration institutions such

as: mandate, administration of another's assets, business management, company contract, etc.

The main difference of this institution from the other types of contracts is based on the fact

that the property is transferred to the fiduciary. In this respect, the manager/trustee does not have the

only the duty to fulfil the obligations of this mandate, but also has the right of ownership over the

fiduciary assets and must also manage this aspect.

The importance of this analysis lies in the fact that one of the reasons why the fiduciary

contract is not used to its true potential is that this institution is not fully understood by the

beneficiaries. In this sense, the duty of the legal doctrine is to explain for easy understanding the

complicated provisions of the Civil Code to the parties involved.

We also intend to provide answers to the following relevant questions arising from the legal

attributes of fiduciary management: Why should fiduciary management be used in practice? What are

the implications of using fiduciary management and its legal characteristics? What aspects should be

1 Günay Duagi - Doctoral School of Law, Bucharest University of Economic Studies, Romania, gunayduagi@yahoo.com.

2 Civil Code of 17 July 2009 (Law no. 287/2009 on Civil Code), published in the Official Gazette of Romania no. 511 of 24 July 2009.