Dissolution

Law 31/1990 provisions present some general cases of dissolution

and special procedures for certain types of companies.

General cases

a) expiration of the period established for the life of the company;
b) impossibility to carry out the object of activity of the company or its
fulfillment;
c) the declared nullity of the company;
d) the decision of the general assembly;
e) the court decision, initiated by any one of the associates, for justified
reasons, such as serious dispute between the associates that hinder the
company's operation;
f) bankruptcy;
g) other reasons as prescribed by the law or by the constitutive act of the
company;
In the case prescribed by point a) a consultation of the associates
must be held, at least one year prior to the company's expiration date,
regarding the possible extension of its life. When such a consultation lacks,
at the initiative of any one of the associates the court may order, by a
decision, the carrying out of the consultation.





Special cases

1) The joint-stock company (company by shares) enters
dissolution:
a) in the case and under the conditions prescribed by Article 153;
b) when the registered capital is written down under its minimum legal
level;
c) when the number of shareholders diminish under its legal minimum.
These cases are particular to companies by shares due the
compulsory elements needed for setting up and functioning of the
company. The dissolution wont take place in case when, within 9 months
as from the date the loss or the reducing of the registered capital has been
acknowledged, it has been re-completed or written down to the remaining
amount or to the minimum legal level or when the company is converted
into another form for which the existing registered capital is up to
requirements.
The limited partnership by shares (sleeping company by
shares) and the limited liability company enter dissolution in case of
losing half of their registered capital or of it being reduced under its
minimum legal level, as the case may be.
2) The general partnership and limited liability companies are
dissolved through bankruptcy, legal inability, exclusion, withdrawal or
death of one of the associates when, owing to these causes, the number of
the associates was reduced to only one.
An exception makes the case where the constitutive act contains a
clause according to which the company may continue its existence with the
heirs or when the only remaining associate decides the company to
continue in the form of a limited liability company with one sole
associate.
The provisions of the preceding paragraphs are to be applicable also
to the limited partnership or limited partnerships by shares providing
those clauses are applicable to the only active or the only sleeping partner.
3) At the request of the local chamber of trade and industry or of
any interested person, the court could decide the dissolution of the
company, in the cases when:
a) the company lacks the bodies required by the constitutive act or these
bodies cannot meet any more;
b) the company did not submit for 3 consecutive years its balance sheet or
other documents which, according to the law, should be submitted with the
trade register office;
c) the company ceased its activity or it has no known registered office or
the associates have disappeared or they have no domicile or known
residence.This is not to be applied in case the company was temporarily
inactive, a fact notified to the public fiscal agencies and registered with the
trade register. The duration of inactivity cannot exceed 3 years.













Dissolutions effects

Dissolution of the company has, as an effect, the beginning of the
liquidation procedure. Dissolution may take place without liquidation in
case of merging or of total division of the company and in other cases
stipulated by law.
As from the moment of dissolution, the managers cannot start new
operations; otherwise they are personally and jointly liable for the
operations they started. The ban imposed is to be applied as from the day
the time established for the company's life expires or as from the date of its
dissolution as decided by the general assembly or as declared by a court
decision.
Even under these conditions, the company maintains its legal
personality during the liquidation operations until the liquidation is finished.
The dissolution of the company, before expiration of the period
established for its duration, becomes effective against third parties only
after a thirty days' interval has passed from the publication in the Official
Gazette of Romania.
Dissolution of a limited liability company with an only associate
brings about the universal transfer of the company's assets towards the
only associate, without liquidation.








Liquidation


In order to declare the companys liquidation, we need official
receivers, natural or legal persons, authorized by law, the official receivers
are obliged, along with the company's managers, to make an inventory and
to draw up a balance sheet to ascertain the exact situation of the
company's assets and liabilities and to sign them.
Even if the constitutive act stipulates provisions in this respect, the
following rules shall be observed in liquidating and distributing the social
assets:
a) until the official receivers take over their duties, the managers
continue their mandate, except for the provisions of Article 228;
b) the official receivers' appointment act or the decision that replaces it
and any subsequent act bringing changes regarding their replacement
must be deposited by official receivers' care, with the trade register office
to be immediately registered and published in the Official Gazette of
Romania, Part IV.
All the documents issued by the company must show that it is
undergoing liquidation.

Official receivers obligations
a) to make an inventory and to draw up a balance sheet to ascertain
the exact situation of the company's assets and liabilities
b) to receive and keep the company's assets, the registers
committed to them by the managers and the documents of the company.
c) to keep a register with all the liquidation operations, by their date
order.
d) to request the erasing of the company from the trade register.
Official receivers rights
a) to go to law and be sued to the benefit of the liquidation;
b) to carry out and to conclude the trading operations related to
liquidation;
c) to sell, by public auction, the real estate and any movable estate
of the company; the goods cannot be sold in the lump;
d) to make transactions;
e) to liquidate and to cash in the company's debts even in case of
the debtor's bankruptcy, issuing a receipt;
f) to contract bills of exchange, to make unmortgaged loans and
generally to carry out all other necessary acts.
The company's liquidation must be completed within 3 years at the
most as from the date of its dissolution. For justified reasons the court may
extend the said time limit with not more than 2 years.
After the liquidation is completed the official receivers must request
the erasing of the company from the trade register.
Beside the provisions of the present title, the rules established under
the constitutive act or law are also applied to the companies undergoing
liquidation to the extent to which they are not incompatible with the
liquidation.
All the documents issued by the company must show that it is
undergoing liquidation.







Liquidation of partnerships, sleeping companies or limited
liability companies
a) Replacement of the management
As a result of dissolution, the managers must be replaced by official
receivers. This procedure may be a voluntary or a legal one.
The official receivers' appointment in the general partnerships,
limited partnerships or limited liability companies, will be made by all the
associates, unless otherwise stipulated by the company contract.
If the unanimity of votes cannot be met, the appointment of the
official receivers will be made by the court, upon the request of any
associate or manager, by listening to all the associates and managers.
The associates or managers may appeal against the court ruling
within fifteen days from the judgement.
b) Drawing the final situation and the distribution
After having completed the liquidation of the general partnership,
limited partnership or limited liability company, the official receivers must
draw up the liquidation balance sheet and propose the distribution of
assets between the associates.
The unsatisfied associate may enter a caveat within 15 days from
the notification of the liquidation balance sheet and the distribution draft.
In order to settle the caveat judgement, the liquidation problems will
be separated from those regarding the distribution, which may not concern
the official receivers.
After expiration of the period or after the court decision on the caveat
remained final, the liquidation balance sheet and the distribution are
considered approved and the official receivers are discharged of their
responsibilities.



Liquidation of companies by shares and of sleeping companies by
shares
a) Replacement of management
The appointment of the official receivers in the joint-stock companies
and limited partnerships by shares is made by the general assembly which
decides the liquidation, unless otherwise stipulated by the constitutive act.
The general assembly makes decisions with the same majority
stipulated for the modification of the constitutive act.
If the majority was not met, the appointment will be made by court,
upon the request of any of the managers or associates, the company and
those who requested the appointment being summoned. This ruling may
be appealed within fifteen days from the delivery of the court decision.
The managers will submit to the official receivers a report about
administration for the time elapsed since the latest approved balance sheet
and until the moment the liquidation started.
The official receivers are entitled to approve the report, to appeal or
to support the disputes that may occur.
b) Drawing the final situation and the distribution
When one or several managers are designated as official receivers,
the report concerning the managers' administration will be deposited with
the trade register office and it will be published in the Official Gazette of
Romania, Part IV, along with the final liquidation balance sheet.
When the duration of administration exceeds a financial year, the
report must be attached to the first balance sheet, which the official
receivers submit to the general assembly.
Any shareholder may enter a caveat within fifteen days from the
publication as per the conditions stipulated by Article 62.
All the caveats entered will be connected to be settled by a single
court award.
Any shareholder is entitled to intervene in court and the ruling of
court will also be opposable to the non-intervening shareholders.
If the liquidation lasts longer than a financial year, the official
receivers are obliged to draw up the yearly balance sheet observing the
provisions of the law, and of the constitutive act.
After the liquidation has been completed the official receivers draw
up the final balance sheet indicating the quota allotted to each share, out
of the company's assets distribution.
The balance sheet signed by the official receivers, along with the
auditors' report will be deposited with the trade register office in order to be
registered and it will be published in the Official Gazette of Romania, Part
IV. Any shareholder may enter a caveat
If the period stipulated by Article 260 paragraph (3) has elapsed
without any caveat being entered the balance sheet is considered
approved by all the shareholders and the official receivers are delivered of
their duties on condition that all the company's assets should be
distributed.
Independently of the expiration of the term, the receiving bill for the
last distribution will stand for the approval of the account and of the
distribution made to each shareholder.
The sums of money due to the shareholders, which were not cashed
in within two months as from the publication of the balance sheet, shall be
deposited with the Savings and Consignments Office or with a banking
company or one of the branches thereof, indicating the shareholder's name
and first name when the shares are registered ones or the order numbers
of the shares when they are on bearer.