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Memorandum for a new romanian Commercial Code, in the Romanian Private Law Unity System

The participants in the national conference “Commercial Law and Romanian Private Law Unity System”, that took place on September 15th, 2017 in Bucharest, agreed upon the need to adopt a new Romanian Commercial Code, and approved the establishment of an initiative group to draw up and support a Memorandum for adopting a new Commercial Code, integrated in the Romanian private law unity system, and for coordinating the efforts required to promote and support a new Romanian Commercial Code.

At the Business Law Conference 2018, held on October 12th – 13th, 2018 in Brașov, the content of this Memorandum was approved in principle – and subsequently endorsed by all the members of the Initiative Group – the need to adopt a new Romanian Commercial Code was strongly reconfirmed, and the procedures to draw up the statement of reasons for the new Commercial Code were established and are to be subject to a public debate in May 2019.

The Initiative Group invites all experts in law, economics, finance and business, as well as the relevant public and private bodies and institutions to support and adhere to the Memorandum for a new Romanian Commercial Code, and to contribute with proposals, comments and analyses regarding the future draft of the new Commercial Code.

For the draft of the new Commercial Code to be adopted by the Parliament of Romania, it was agreed that a Steering Committee, composed of the members of the Initiative Group, should coordinate the drafting of the statement of reasons and the new Commercial Code and, in parallel, represent the Initiative Group and start all the necessary procedures before the State bodies (Parliament, Government and others) so that they may make an assessment and decide accordingly.

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With this Memorandum, the Initiative Group, established with the participation of a high number of renowned law theoreticians and practitioners, is calling on the Parliament of Romania and the Government of Romania to take all the administrative and legislative measures necessary to adopt a new Romanian Commercial Code.

The new Commercial Code should contain several parts, respectively a General Part dedicated to traders, enterprises and commercial obligations, a Special Part dedicated to commercial contracts and a Final Part dedicated to the principles applicable to emerging fields.

The adoption of a new Romanian Commercial Code would not affect the private law unity system enshrined in the current Civil Code. Private law unity in the post-modern age means the existence of a unitary body of legal norms that are material, general, applicable to the legal relations and private law subjects; it is within this meaning that the concept in the current Civil Code should be understood. Not only this meaning of private law unity and the vision of the Civil Code do not exclude, but, on the contrary, require the existence of special or complementary legal regulations in the fields that are not regulated by general private law – Civil Code, including by means of a Commercial Code.

Taking into account that the commercial activity has been and will remain an undeniable reality, the law could not and cannot ignore it, as law is a common set of legal rules regulating certain aspects of life.

The complexity of the commercial activity  (production, service provision and trade)  makes it impossible and inappropriate to regulate it only by means of the general provisions of the Civil Code, and this reality is reflected in the existence of special national and EU laws which apply not only to the legal relations resulting during or in connection to the performance of the commercial activity, but also to the legal institutions specific to the commercial activity, the legal status of the participants in the commercial activity, the professional obligations of traders etc.

A new Romanian Commercial Code could improve the current legal framework, and could have a positive influence on the transparency, certainty and predictability of the legislation – aspects that are critical for the business environment, representing a proper tool for the development of the strategic projects for the modernization of Romania, which could make Romania become (more) attractive for investors and better integrated in the European legal and economic landscape.

The European legislation fully uses notions and phrases (uselessly abandoned by the Civil Code), such as: “commercial transactions”, “traders”, “commercial contracts”, “commercial activity”, “enterprises”, which are properly defined and regulated; thus, one can note significant inconsistencies in the Romanian legislation, which established rigid and anachronistic demarcation lines.

The project to adopt a new Romanian Commercial Code falls within the policy of the European Union for the codification and consolidation of the legislation, so that it becomes unified, more accessible and predictable.

As part of this policy, for instance, the European Commission is supporting the project of a new European Commercial Code that unifies the legislation applicable to business companies and the entire commercial and related legislation – existing at the level of the member states.

The Initiative Group is aware of its role and the need for the new Romanian Commercial Code to become a flexible, modern and sustainable regulation.

To this end, the draft of the new Commercial Code will be drawn up with the broad and consistent consultation of the specialists in law from all over the country: university professors, researchers, magistrates, lawyers, notaries, insolvency practitioners, legal advisors etc., as well as of all professional bodies and of the business environment.

Members of the Initiative Group:
Smaranda Angheni, University Professor, PhD, Rector of Titu Maiorescu University;
Mădălina Afrăsinie, Judge, Bucharest Tribunal, Civil Law Unit VI;
Gabriel Biriș, Lawyer, Managing Partner Biriș Goran;
Lucian Bojin, Associate Professor, PhD, Faculty of Law, West University of Timișoara;
Radu Bufan, University Professor, PhD, Faculty of Law, West University of Timișoara;
Florin Bulieris, Lawyer, Cluj Bar;
Gheorghe Buta, Lawyer, PhD, C S I – Legal Research Institute of the Romanian Academy, Partner Mușat și Asociații;
Stanciu D. Cărpenaru, University Professor, doctor honoris causa, Faculty of Law, Nicolae Titulescu University of Bucharest;
Dragoş Călin, PhD, Director of the Legal Department, S.I.F. Transilvania, Braşov;
Dan Chirică, University Professor, PhD, Faculty of Law, Babeș-Bolyai University, Cluj Napoca;
Marcela Comșa, Judge, PhD, Brașov Court of Appeals;
Liviu Damșa, PhD, Warwick University (UK);
Gina Orga Dumitriu, Associate Professor, PhD, Faculty of Law, “Lucian Blaga” University, Sibiu;
Maria Dumitru, Associate Professor, PhD,  Ștefan cel Mare University, Suceava;
Gabriela Fierbințeanu, University Assistant, PhD, Faculty of Law, Nicolae Titulescu University;
Cristina Florescu, Associate Professor, PhD, Faculty of Political and Administrative Legal Sciences, Spiru Haret University;
Sergiu Golub, University Lecturer, PhD, Faculty of Law, Babeș-Bolyai University, Cluj Napoca;
Liviu Marius Harosa, Associate Professor, PhD, Faculty of Law, Babeș-Bolyai University,Cluj Napoca;
Raul Felix Hodoș, University Lecturer, PhD, Petru Maior University, Târgu Mureș;
Adrian Iordache, Lawyer, Managing Partner Iordache Partners;
Simona Miloș, Lawyer, President of the National Training Institute for Insolvency Practitioners;
Florin Moțiu, University Professor, PhD, Faculty of Law, West University, Timișoara, Judge at Timișoara Court of Appeals;
Flavius Moțu, Judge, PhD, Cluj Specialized Tribunal;
Nicoleta Mirela Nastasie, Judge, PhD candidate, Bucharest Tribunal, Civil Law Unit VII;
Csaba Bela Nasz, University Lecturer, PhD, FEEA, West University of Timișoara; judge, trainer with the National Institute of Magistracy;
Vasile Nemeș, Associate Professor, PhD, Faculty of Law, Nicolae Titulescu University;
Sorina Olaru, Lawyer, Partner Nestor Nestor Diculescu Kingston Peterson;
Alina Oprea, University Lecturer, PhD, FSEGA, Babeș-Bolyai University, Cluj Napoca;
Bazil Oglindă, Associate Professor, PhD, Faculty of Law, Romanian-American University;
Ciprian Păun, Associate Professor, PhD, FSEGA, Babeș-Bolyai University, Cluj Napoca;
Nela Petrișor, Lawyer, PhD, Partner Mușat și Asociații;
Gheorghe Piperea, University Professor, PhD, Faculty of Law, University of Bucharest;
Manole Popa, University Lecturer, PhD, Faculty of Law, University of Bucharest;
Cornel Popa, Lawyer, PhD, Partner Țuca Zbârcea și Asociații;
Titus Prescure, University Professor, PhD, Deputy Dean, Faculty of Law, Transilvania University, Brașov;
Elisabeta Roșu, Judge, President of Bucharest Court of Appeals;
Lucian Săuleanu, University Professor, PhD, Faculty of Law, University of Craiova, Dean of Dolj Bar;
Andrei Săvescu, Lawyer, PhD, Legal Sciences Society;
Mihaela Sărăcuț, Judge, PhD, Cluj Court of Appeals;
Ion Schiau, University Professor, PhD, Faculty of Law, Transilvania University, Brașov;
Lavinia Tec, Associate Professor, PhD, Faculty of Law, West University, Timișoara;
Luminița Tuleașcă, Associate Professor, PhD, Faculty of Law, Romanian-American University;
Ion Turcu, University Professor, PhD, Faculty of Law, Babeș-Bolyai University;
Adrian Țuțuianu, Associate Professor, PhD, Valahia University, Târgoviște;
Cosmin Vasile, PhD, Partner Zamfirescu, Racoți & Partners;
Eugenia Voicheci, Judge, PhD, President of the Civil Law Unit II, High Court of Cassation and Justice;
Stan Tîrnoveanu, Lawyer, Partner Zamfirescu, Racoți & Partners;
Nicoleta Țăndăreanu, Judge, PhD, High Court of Cassation and Justice;
Ștefania Zorilă, Notary Public, co-founder of “Aequitas”- Professional Notaries’ Society.

Steering Committee:
Honorary Chairperson: Stanciu D. Cărpenaru, University Professor, PhD
Chairperson: Gheorghe Piperea, University Professor, PhD
Primary coordinators: Gheorghe Piperea, University Professor, PhD, Luminița Tuleașcă, Associate Professor, PhD, Smaranda Angheni, University Professor, PhD

Members:
Radu Bufan, University Professor, PhD
Lucian Săuleanu, University Professor, PhD
Vasile Nemeș, Associate Professor, PhD
Manole Popa, University Lecturer, PhD

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