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The legal person

A legal person is an entity such as a corporation, a company, an association created by the law

and given certain legal rights and duties of a human being.

Companies and other legal persons have their own personality, separated from that of theshareholders, or directors, or members, or even of other companies in the same group. Even if a

company is totally dominated by one shareholder the company and the shareholder are distinctpersons. In other words a legal person is a legal entity with rights, privileges, and liabilities distinct,separated from those of the individuals who invest money in it.

There are two consequences of the separate legal identity of a company:

1. A company can sue and be sued in its own name.

2. A company can make contracts in its own name.

Its members cannot claim the benefit, nor can they be subject to the burdens, obligations of such

contracts.

The main constitutive elementsof a legal person are the following:

1. The organization. The legal person has its own organiation. The company!s internalstructure is usually divided into different departments "production, research, mar#eting,

etc.$. It also means the organiation of the management organs and the natural person who

represent the legal person. %ince there is a huge diversity of internal structures and there areno imperative rules for this matter, any internal structure is allowed by the law.

2. The patrimony. The company has its own patrimony. It is distinct from the patrimonies of

its members. The patrimony can be defined as being a juridical universality which includes

all the rights and the obligations with patrimonial character which belong to a subject oflaw and also includes the goods to which these rights and obligations are referred to.

&uridical universality: law provides for the mi'ture of different groups of goods,

rights and obligations but still the patrimony is independent from its elements.

The patrimony includes only groups of goods, obligations, rights that have apatrimonial character, meaning that they can be e'pressed in money.

Each subject of law has its own patrimony and only one. It means that the patrimony

is unique. In order to be a subject of law, different from other subjects of law, a legalperson has to have its own patrimony. This patrimony is separated from the

patrimony of other legal persons of from the patrimony of natural or legal persons

who compose it.

3. The goal purpose!. The legal person has its goal or its own object of activity. It has to be

lawful. The purpose of the legal person justifies its e'istence as a subject of law.

The classificationof legal persons:

"egal persons of public law

"egal persons of private law

The distinction between these #inds of legal persons is made regardless of the nature of the

capital. It doesn!t matter if the capital belongs to the state or to the particular private persons. The

important thing, the criteria is the nature of the rules that regulate each #ind of legal person.Therefore a company whose shareholder is the state is still a private legal person because it

functions according to private rules.

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(. #ain legal persons of public lawa$ )ne of the public legal persons is thestate itself. It is considered a legal person whenever

it participates in its own name as a subject of law in juridical relations. *sually the state participates

as a legal person on the international level within public international economic relations. +utsometimes the state may be part of the private juridical relation. "e.g. It may participate to a

juridical relation as a debtor in order to repair the damages caused by an illegal arrest or judgmentThe state may participate in a juridical relation of property, the state may be an owner. The state mayparticipate even to a relation of inheritance it may collect all the vacant legacies, any fortune with

no successor.$

b$ The local administration units. The county, the town and the village is a legal person and

has a legal capacity c$ The organs of the legislative power of the state: -eputies Chamber and the %enate as well

as omanian /arliament are organied as legal persons.

d$ The organs of e'ecutive power of the state: such as the /resident, the omanian0overnment, the ministries, the omanian diplomatic missions and the local organs of public

administration.

e$ The judicial instances: courts of law, tribunals, courts of appeal f$ The Court of 1ccounts

g$ The Constitutional Court

h$ )ther state!s institutions: schools, hospitals, universities etc.

2. #ain legal persons of private law

a$ The 1utonomous eggie and commercial companies with state capital

b$ The private commercial companies. They are legal persons from the date of theirincorporation in tha egister of Trade

c$ The political parties

d$ The syndicates2labor unions or union3trade of wor#ers. e$ The non3patrimonial associations and foundations

f$ The religious creeds.

The legal persons of private law may be classified according to the purpose mentioned in the

constitutive act. The purpose may be:

$atrimonial4 commercial companies

%on&patrimonial ' associations, foundations, labor unions, church.

Even a legal person constituted in a non3patrimonial goal for a non3patrimonial person has a

patrimony and may develop some economical activities. The profit it gains is never returned to the

members. It is always used for the non3patrimonial goal "cultural, artistic, and political$.

The legal capacity of legal persons

The legal capacity means the ability of a legal person to have rights and obligations and to

participate on its own name within the framewor# of juridical life. The legal capacity includes theabstract capacity and the concrete capacity.

The abstract capacity of legal persons

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The abstract capacity of a legal person means is general and abstract ability to have rights and

obligations which correspond to its goal. The content id formed by:3 an active side: the ability to have patrimonial and non3patrimonial rights rising from

the contracts or from other juridical facts

3 a passive side3 which e'plains the ability to have patrimonial and non3patrimonialobligations.

5evertheless, no matter which branch of law is involved, a legal person is a subject of law. 1s asubject of law, the legal person has only one legal capacity .In other words the legal capacity of a

legal person is unique as it is for natural persons, too.

The abstract capacity has the followingfeatures:

1. It is legal. It is stipulated by law and nobody can e'tend or limit its content

2. It is general. The rights and the obligations which form the content of the abstract capacity

are not e'actly provided by law for each legal person.

3. It inalienable. In cannot be alienated or yielded either in total or in part by juridical acts.

(. It is intangible. It can be limited only by law and these limits depend on the object of

activity of the legal person. These limits e'press the principle of specialiation.

). It is special. The specialiation of abstract capacity is that character which departs theabstract capacity of a legal person from the abstract capacity of a natural person. 6or legal

person the content of abstract capacity is different according to the goal for which each legal

person w

*. as set up.The natural person has the aptitude to own any right and to have any obligation. Alegal person may own only those rights which are meant to achieve the established purpose.

This rule is the rule of specialty of the abstract capacity. 1ccording to this rule any juridical act

which has been concluded for another purpose than the one originally assumed by the legal personis null and void.Any juridical act concluded outside the object of activity may produce no effect.

The law provides that a legal person can have only those rights and obligations which correspond to

its aim established by the law or by the constitutive act. 5ormally the object of activity is e'presslymentioned in the constitutive act of the legal person. These constitutive acts outline how the

organiation!s board of directors will operate, specify the sie of the board, the selection of the board

members, the number of board meetings, and the purpose of the organiation.

When does it begin?

The legal persons submitted to registration obtain their abstract capacity on the date of their

registration.The legal persons who are not submitted to registration obtain their legal capacity according to the

way used to set them up. This can be the date of the order of the state organ competent to set them

up, the date of the recognition act, the date of the authoriation act or the date when any other legalrequirements are fulfilled.

Even before registration the legal person has some rights and obligations tightly lin#ed to its valid

setting up. This is called limited or anticipated abstract capacity.

When does it end?

The anticipated abstractcapacity ends when full abstract capacity is obtained.

7ithout abstract capacity a legal person cannot e'ist. %o, the full abstract capacityends when thelegal person ceases. 7hen a legal person begins the clearing off process, its full abstract capacity

still has to e'ist but it is restricted. The legal person can no longer carry on the business but it still

has rights and obligations to accomplish the clearing of process. 6rom the date of dissolution to thedate of erasure from the register, the legal person can unfold its activity but only in order to achieve

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its patrimonial rights and pay its debts. The restricted abstract capacity end when the legal person is

erased from the register where it was incorporated.

The concrete capacity of legal persons

The concrete capacity of a legal person is defined as being the abstract and general ability to obtainand to e'ercise subjective civil rights and to fulfill civil obligation, by concluding in its own name

civil juridical acts through its organs.1 legal person e'presses its will through its management organs. *nli#e the natural person, anabstract construction as the legal person cannot have its own will unless the law stipulates that.

+etween the legal persons and the management organs there is the so3called 8legal representation!,

meaning that the management organs, either in unipersonal form or collective form, represents the

legal persons within the relationship with third parties.%imilar to the abstract capacity of a legal person, its concrete capacity has an active side "the

acquiring and e'ercise of its rights and a passive side "the assuming of obligations$ as well.

In fact, between the both components of the legal capacity of a legal person there is a tightconnection. The abstract capacity!s specialiation also limits the content of the concrete capacity,

because the concrete capacity cannot be larger than the abstract capacity. +ut it could be smaller.

1lso, the plurality of the management organs and their competences can be another limit of theconcrete capacity.

When does it begin?

It is considered that the legal person obtains its concrete capacity at the same time with its abstractcapacity, or when its management organs are appointed. The common opinion is that the legal

person obtains its concrete capacity on the date of its setting up. +esides the anticipated abstract

capacity, the legal person has an anticipated concrete capacity from the moment of its setting up andwith the view to its valid setting up.

When does it end?The concrete capacity ends when the e'istence of the legal person ends. It can also end in case the

legal person is reorganied: is subject of a fusion or of a merger by absorption or of a total division.

The identification of legal persons

The identification of a legal person is necessary from its setting up moment until the end of its

activity. +y identification it is usually meant the individualiation of a subject of law who is on his

own name part of the juridical relationship. The identification attributes for a legal person are: thedenomination, the headquarters, the nationality, the trade mar#, the emblem, the fiscal code, the

telephone, fa', the ban# account etc.

The identification attributes are non3patrimonial rights and they have the following features:3 are opposable erga omnes3 being absolute rights

3 are inalienable3 they cannot be transferred through juridical acts

3 are indefeasible3 meaning that they cannot be lost if they are not used3 are personal3 are tightly lin#ed with the person

3 *niversality3 any legal person has the right to have identification attributes.

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