INTERNATIONAL CONFERENCE - Facultatea de Drept

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Conference Proceedings - Galaţi, 24 th -25 th of April 2009 Year I, Vol. I - 2009 Silvia CRISTEA Camelia STOICA SPECIFIC FEATURES OF THE BANKING COMPANIES Abstract The aim (purpose, goal) of the study is the legal (juridical) regime of banking commercial companies (societies) as credit institutions, according to the Government Emergency Ordinance 99/2006 (Section 1). The specific characteristics of banking companies are analyzed beginning with their legal qualification (definition) as commercial companies (Section 2), continuing with their special (specific) issues. Section 3 is discussing the legal regime of bank directors and the conclusions are referring to the legal rules of banking companies administration activities. 1. Introductive notions Taking into consideration the fact that the Romanian Trade Code presents to art. 3, point 11 as trade activities the banking operations, along with those of exchange, we consider applicable the definition formulated by doctrine (Demetrescu, 1939) through which by bank it is understood “an organism of interposition in the operations of banking credit, taking credit money from those who search a placement for their capitals and giving credit money to those who need capitals, accomplishing this way a benefit (Gheorghe, 2006)”. Strictly from the legal point of view, as trade company, the bank represent that group of persons, constituted based on a company agreement and having legal personality, to exercise several trade acts, with the purpose of fulfilling and sharing benefits. From the perspective of the chosen (Capatana, 1996) form of the company, so that the bank can be constituted as Trade Company, it can not have other form that of Share Company, which has as main object of activity the collection of funds and the granting of credits, and also the performance of banking (Gheorghe, 2006) services. Under the terms of OUG no. 99/2006 concerning the banking 1 activity, the trade banks are authorized credit institutions, along with the cooperative credit organizations, the institutions issuers of electronic 1 This abrogates Law no. 58/1998, concerning the banking activity, published in the Official Monitor no. 1027 from 27.12.2006, approved and modified by Law no. 227 / 2007, published in Official Monitor no. 480 from July 18th 2007. 31
Conference Proceedings - Galaţi, 24 th -25 th of April 2009 Year I, Vol. I - 2009 currency, the banks of economy and crediting in the locative field and the banks of mortgage credits. The difference between those five categories of credit institutions results from the category of activities which they can develop 1 . As categories of activities we remark that while the banks can develop 20 authorized activities (acc. Art. 18, OUG no. 99/2006), the issuers of electronic (Andronache and Bunescu, 2004) currency can not attract other reimbursable funds than those which are immediately transformed in electronic currency, and their object of activity is constitute by the issue of electronic currency and some connected services, without including other banking operations. Finally, the cooperative organizations of credit and the economy houses for the locative field can function only on two segments of the banking activities: the market of deposits and the credit market (Andronache and Bunescu, 2004), in other words they can only collect deposits or other reimbursable funds from the public and to grant credits in their own account. 2. Specific features of the banking trade companies A. General features (Carpenaru, 2002) a. The company constitutes a minimum number of associates named shareholders; according to Law 31/90, regarding the trade companies, republished2, the minimum number of shareholders is pf two (acc. art. 10, paragraph 3); these shareholders can be traders and nontraders, not being relevant their personal qualities, but the pecuniary (Cristea and Stoica, 2002) contribution. b. The social capital is divided in shares, which are negotiable and transmissible; c. The responsibility of shareholders for the social obligations is limited to the value of the contribution to the social capital. 1 Unlike the initial form of Law 58/1998, published in Official Monitor no. 121 from March 23 rd , which provided that the banking activity in Romania will be developed through credit institutions (art. 1, paragraph 1). We can see that BNR vanishes from the list of operators on the banking marker. In this meaning, to be seen Vasile Andronache and Ion Bunescu, “Aspecte ale activitatii bancare dupa recentele modificari operate in textul Legii bancare nr. 58/1998 by Law no. 485/2003”, in the Magazine of Trade Law (MTL), no. 2/2004, page 94/95. 2 Law 31/90 was modified through Law 441/2006, published in Official Monitor no. 955 from November 28 th 2006. 32
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INTERNATIONAL CONFERENCE - Facultatea de Drept

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