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![]() BORTA, Marina. Specific cases in the administration of limited liability companies. In: Adapting Public Services to the Technological Challenges and to the Business Environment Expectations, Ed. Ediția a 3-a, 8 decembrie 2023, Chişinău. Chişinău: Departamentul Editorial-Poligrafic al ASEM, 2023, Ediția a 3-a, pp. 36-38. |
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Adapting Public Services to the Technological Challenges and to the Business Environment Expectations Ediția a 3-a, 2023 |
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Conferința "Adapting Public Services to the Technological Challenges and to the Business Environment Expectations" Ediția a 3-a, Chişinău, Moldova, 8 decembrie 2023 | ||||||
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JEL: K15, A13, F15, G18, G41, K33, K38 | ||||||
Pag. 36-38 | ||||||
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In the process of registering changes in the State Register of legal entities, certain issues may arise in the administration of limited liability companies in the case of the death of the company's administrator (who is simultaneously the sole associate of the company or holds a share, without which the necessary quorum for appointing a new administrator is not present). In the presented situation, it is necessary to identify the documents that would allow the registration in the State Register of changes in the data of the limited liability company's administrator. The right to appoint a new administrator of the limited liability company in the situation mentioned above can be exercised in the following cases: 1) The court, under Article 177 paragraph (7) of the Civil Code, can appoint an administrator of the legal entity, with his removal if the competent body of the legal entity decides to appoint the executive body;2) Under Article 49 paragraph (2) letter a) of Law no. 135/2007 on limited liability companies, if the statute does not provide otherwise, the general assembly of associates is competent to appoint and release the administrator of the limited liability company before the term expires. Based on the provisions of Article 43 letter b) and Article 24 paragraph (4) of Law no. 135/2007, the associate, the holder of the share in the company's share capital, has the right to vote at general meetings of associates. Each one leu of the share capital grants the right to one vote unless the statute provides otherwise. In the situation where the sole associate and administrator of the limited liability company have died, the question arises: who will have the right to vote at the general meeting regarding the appointment of a new administrator of the company until the heir of the deceased is designated? If urgent measures are not taken to appoint an administrator, serious consequences could occur for the company, which, due to the lack of legal capacity (in the sense of Article 177 of the Civil Code), is unable to fulfill its obligations to employees, the tax authority, and other creditors, obligations resulting from business activities. According to Article 9 paragraph (3) of Law no. 135/2007, associates bear the risk of losses resulting from the company's activities within the limits of their participation in the share capital. In this context, the most common document presented for the registration of changes in the State Register regarding the change of the administrator is the certificate of custodian of the estate. According to Article 2414 of the Civil Code, a notary can appoint a custodian only under the conditions of Article 2412 of the Civil Code: - no heir is known; - known heirs are not present at the place of the inheritance opening; - it is not known if there is any heir who has accepted the inheritance; - the heir is a minor and does not have a legal representative; - a guardianship procedure has been initiated for the heir, and he does not have a legal representative; - other grounds provided by law. At the same time, in the absence of the conditions established by the provisions of Article 2412 of the Civil Code, the issuance of the certificate of custodian of the estate can be made under the conditions of Article 2413 paragraph (3) of the Civil Code. In that case, the registration of changes in the State Register regarding the change of the administrator takes place based on the registration request, with the presentation of the decision of the sole associate or, if applicable, the general assembly of associates to change the administrator (being elected or the custodian or a third person), and at the same time, the certificate issued by the notary regarding the appointment of the custodian of the estate is attached. The certificate/decision regarding the appointment of the custodian issued by the notary should expressly indicate that the custodian has the right to administer the deceased's share or the right to vote at the general meeting of associates with the agenda item being the election of the new administrator until the heir's certificate is issued. The custodian's powers cease at the expiration of the succession option period. If the certificate/decision regarding the appointment of the custodian issued by the notary does not clearly make such specifications, the state registration authority recommends that the applicant, under Article 177 paragraph (7) of the Civil Code, request the court to appoint a new administrator. In such a situation, the change of the deceased administrator will be made based on the court decision to appoint the new executive body. |
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Cuvinte-cheie custody, heirs, change of administrator, custodie, moştenitori, schimbarea administratorului |
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