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INDEX |
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Prepare |
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Email
basc@ccia-arad.ro |
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3.
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DESCRIPTION OF TRADING COMPANIES | |||||
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SNC
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GENERAL
PARTNERSHIP |
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1. PARTNERS |
SNC is used as a legal instrument for the involvement in business of both natural and legal persons.
a.) partners natural persons.
In this case setting up of the SNC represents the options of some close friends or colleagues. Sometimes SNC take the forms of a family business established by the same members of the family (parents or children, brothers or sisters or even more distant relatives), and some others times it is customary within a certain profession (case in which is set up with the participation of some members of the same professional body).
Advantages!
The formalities of setting up are very simple, very simple operation mechanisms.
These advantages unlimited liability of the partners for their duties, cautions in taking inevitable risks.b.) Partners legal persons.
A SNC is validly set-up by the partners - legal persons.
The element INTUITU PERSONAE , characteristic to the SNC is not incompatible with the collective legal entities. A company of commercial companies has a distinct legal status as to the partner companies and its register capital is made up with the participation of all the partner companies.
The law does not provide a minimum of number of partners for setting up of the SNC but since it does not stipulate that it can not operate as a one-person company it comes out that for setting up a SNC, at least two partners are necessarily.
The SNC is set up by company contract.
It is NOT necessarily to compile a by laws, BUT the law does not prevent the partners if this is their whish to draw up a by law.
The company contract must be in authentic form.Content of the company contract:
See art. 7 a- I from Law31/90 republished.
The above closes may be groped as it follows:
clauses referring to the partners
clauses referring to the identification of the company which constitute the clauses referring to the structural elements of the newly established company and its operation.
It is the main identification element of any commercial company, SNC included.
Law 26/90, sets the rules according to which the denomination of the SNC is made up of the name and given names of all partners or only some of them followed by the mention SNC.
The LOGO is not a compulsory identification element of the commercial companies.
The firm is compulsory but the logo is optional.
A commercial company may have a single firm "denomination but have more logos"
It is an identification and stability element of the commercial companies.
Commercial companies must have a main local headquarters, a place where the company develops its activities permanently and where the leading bodies are located.
Idem SRL
The law makes no specific reference to a minimum capital for the SNC. Partners have the freedom to establish according to their own interest the value of the capitals.
Accordingly one may drawn the conclusion that SNC could be set-up with the symbolic capital or with no capital at all, but under these conditions the quality of the commercial company wouldn't justify.
In conclusion we may state that SNC must have a reasonable capital, related to the object of activity established by the partners.
9. CONTRIBUTION OF THE PARTNERS
The contribution may be in cash (compulsory) and claims.
Labor may not constitutes contribution to the making up or increase of the register capital. Partners may contribute with their labor consider as " social contribution" and in exchange they have the right to participate to the distribution of the profits and company's assets but they also participate to the losses of the company. ( Art. 15 paragraph 5 of the Law 31/90).
The decision process concerning of the activity of the company belongs to all partners.
According to Art 77 paragraph 1 from Law 31/90 republished, the partners that represent than absolute majority of the registered capital may choose from among them one ore more administrators by setting for them their powers duration of the appointment and their eventual wages, if not other wise stated in the set -up document.
Paragraph 2 of the same Art. states that: " with the same majority partners may decide to revoke the administrators or to limit their powers except for the case which they were appointed in the set-up documents".
According to Art 76 and 78 from Law 31/90 republished the partners decides upon the clash of opinions among the administrators.
The appointed administrators may have initiative of any commercial operational within the activity object of the company without the previous agreement of the rest partners.
The appointment of the administrators no matter of how it is achieved is to be reported to the trade registry because by doing this the legal document by which administrators are appointed becomes opposable.
Both to the company and the third parties.
The administrator must personally achieve the duties given by his position.
The function of the administrators cease under the following circumstances:- expiry of the mandate
- decease of the administrator
- resignation
- dissolution of the company
It is exercise by the auditors inspire of the fact that there no legal provision in this respect but since the Law does not forbid the appointment of the auditors the General Meeting of the partners is free to decide appointment of the auditors whose duty is to exercise a financial control with regard to the way the administrators administrate the patrimony of tee company.
The criteria and condition for the appointment are the same as for the SRL.
Being optional the General Assembly of the partners may decide that the company should be run without auditors.
The competence for the appointment and revocation of auditors belongs to the General Meetings.
The appointment of the auditors may be done in the set-up documents.
The quality of auditor may be given to a partner but the law does not forbid that a third person should be entrusted if he or she has knowledge of accountancy and will act as an independent auditor.
The auditor must have the Romanian citizenship.
The Law provides some limitations for being of auditor.
See Art. 38 and 156, paragraph 2, letter and b from Law 31/90.
12. PARTENRS PARTICIPATION TO PROFIT AND LOSS
The division of profits and losses of the company are ease established by the set-up document of the company (Art 7 from Law 31/90).
The rule is that the dividends will be paied to the partners proportionally to their participation to the registered capital.
Exception!
The partners have the right to stipulate in the company contract that dividends are distributed to the partners by taking into consideration their degree of the participation to the achievement of the activity of the company or its administration.
No partner can be excluded from the profits or exonerated from the losses.
Idem SRL
14. SET-UPDOCUMENT MODIFICATION
Idem SRL
15. PARTNERS EXCLUSION AND WITHDRAWAL
Idem SRL
Idem SRL
General causes of dissolution and common rules of liquidation applicable to all commercial companies (see SRL).
b. Special causes.
Art 224 from Law 31/90:
SNC is dissolute by:
- bankruptcy of one of the partners
- incapacity of the partner
- exclusion of one or more partner
- withdrawn of the partner of company
- ]decease of a partner
The above stated stand as dissolution causes only when, due to them the number of partner reduces to one. The exception is given by the causes of continuation of the inheritors or when the sole partner decides the continuation of the activity under the form of a sole partner SRL.
The liquidation of the SNC is submitted to the general liquidation rules of commercial companies regulated by law 31/90.
The special rules with regard to the liquidation of the SNC are to be found at Art. 256 - 258 from Law 31/90.