“If by a counterclaim is requested the exclusion from the company of the shareholder director for serious disagreements between the shareholders, and the court finds the perpetration of this illegal acts in connection with the idea of guilt, the company’s sanction that emerges is the one provided for by art. 222 paragraph (1) d) of Law no. 31/1990, namely the exclusion, not the company’s dissolution, as the deeds for which this solution is specifically regulated acquire a special character in cases where a company can not function, given their seriousness, serious disagreements between shareholder founding their answers, regarding the functioning of the company, in article. 227 paragraph (1) e) expressly stipulated for such situations, which can not be assimilated or added to the exclusion. ”
To pronounce the following decision, the High Court found that the object of the counterclaim brought to trial is the exclusion of the appellant-plaintiff deriving from the existence of serious disagreement between shareholders, aspect uncontested by the appellant.
Secondly, the demand for dissolution of the company was a defense against the counterclaim and, in this respect, it was correctly confirmed by previous courts that sanction should be taken under article. 222 lit. d) Civil Procedure code, without giving efficiency to the serious misunderstandings of the shareholders that would have led to the dissolution of the company.
Dissolution of companies is defined as a phase of starting the cessation of legal entity and dissolution cases are stipulated in Law no. 31/1990 and Articles of Incorporation.
The issue of right brought to trial is represented by the preeminence of the sanction of exclusion of a shareholder to the detriment of a solution to dissolve the Company, in relation to which the High Court finds the legality of the solution of the Courts of Appeal, which held that the acts for which this solution is regulated acquire special character in cases where a company economy can not function, given their seriousness.
The legal provision which was the basis of the counterclaims is art. 222 lit. d) of Law no. 31/1990 establishes that “it may be excluded from the company… d) the shareholder director who commits fraud to the detriment of the company or uses the registered signature or the benefit of the share capital or others “.
Addressing the above provisions regarding their applicability, address the aspects related to the exclusion of the shareholder who is an administrator guilty of fraud to the detriment of the Company or using capital or registered signature, improperly or unjustly for his own or others.
As in discussion is a corporate sanction, the analyses of its application was made by the court of appeal based on the idea of guilt, given that it was sustained a serious breach of corporate obligations. The conclusion emerges from the duties assumed on the incorporation of the company, which is based on the partnership agreement, the consent to the conclusion of this pact being based on an essential key that is affectio societatis.
The date proposed by the appellant, ie the date of loss of quality as a director, in connection to which it was supposed to be determined his share of net assets can not be accepted, being contrary to legal provisions mentioned, regulating the excluded shareholder’s rights.
For all these reasons, according to art. 312 paragraph (1) Civil Procedure code, the applicant’s appeal was rejected as unfounded.