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 the
shareholders, 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 distinct
persons. 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 elements of a legal person are the following:
1. The organization. The legal person has its own organization. The companys internal
structure is usually divided into different departments (production, research, marketing,
etc.). It also means the organization of the management organs and the natural person who
represent the legal person. Since there is a huge diversity of internal structures and there are
no 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 of
law and also includes the goods to which these rights and obligations are referred to.
Juridical universality: law provides for the mixture 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 a
patrimonial character, meaning that they can be expressed 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 legal
person 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 existence as a subject of law.
The classification of legal persons:

Legal persons of public law

Legal persons of private law

The distinction between these kinds of legal persons is made regardless of the nature of the
capital. It doesnt 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 kind of legal person.
Therefore a company whose shareholder is the state is still a private legal person because it
functions according to private rules.

1. Main legal persons of public law

a) One of the public legal persons is the state itself. It is considered a legal person whenever
it participates in its own name as a subject of law in juridical relations. Usually the state participates
as a legal person on the international level within public international economic relations. But
sometimes 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 judgment;
The state may participate in a juridical relation of property, the state may be an owner. The state may
participate 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: Deputies Chamber and the Senate as well
as Romanian Parliament are organized as legal persons.
d) The organs of executive power of the state: such as the President, the Romanian
Government, the ministries, the Romanian diplomatic missions and the local organs of public
administration.
e) The judicial instances: courts of law, tribunals, courts of appeal
f) The Court of Accounts
g) The Constitutional Court
h) Other states institutions: schools, hospitals, universities etc.
2. Main legal persons of private law
a) The Autonomous Reggie and commercial companies with state capital
b) The private commercial companies. They are legal persons from the date of their
incorporation in tha Register of Trade
c) The political parties
d) The syndicates/labor unions or union-trade of workers.
e) The non-patrimonial 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:
Patrimonial commercial companies
Non-patrimonial associations, foundations, labor unions, church.
Even a legal person constituted in a non-patrimonial goal for a non-patrimonial 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 non-patrimonial 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 framework of juridical life. The legal capacity includes the
abstract capacity and the concrete capacity.
The abstract capacity of legal persons

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:
- an active side: the ability to have patrimonial and non-patrimonial rights rising from
the contracts or from other juridical facts
- a passive side- which explains the ability to have patrimonial and non-patrimonial
obligations.
Nevertheless, no matter which branch of law is involved, a legal person is a subject of law. As a
subject 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 following features:
1. It is legal. It is stipulated by law and nobody can extend or limit its content
2. It is general. The rights and the obligations which form the content of the abstract capacity
are not exactly 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.
4. 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 express the principle of specialization.
5. It is special. The specialization of abstract capacity is that character which departs the
abstract capacity of a legal person from the abstract capacity of a natural person. For legal
person the content of abstract capacity is different according to the goal for which each legal
person w
6. as set up. The natural person has the aptitude to own any right and to have any obligation. A
legal 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. According to this rule any juridical act
which has been concluded for another purpose than the one originally assumed by the legal person
is 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. Normally the object of activity is expressly
mentioned in the constitutive act of the legal person. These constitutive acts outline how the
organizations board of directors will operate, specify the size of the board, the selection of the board
members, the number of board meetings, and the purpose of the organization.
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 authorization act or the date when any other legal
requirements are fulfilled.
Even before registration the legal person has some rights and obligations tightly linked to its valid
setting up. This is called limited or anticipated abstract capacity.
When does it end?
The anticipated abstract capacity ends when full abstract capacity is obtained.
Without abstract capacity a legal person cannot exist. So, the full abstract capacity ends when the
legal person ceases. When a legal person begins the clearing off process, its full abstract capacity
still has to exist 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. From the date of dissolution to the
date of erasure from the register, the legal person can unfold its activity but only in order to achieve

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 obtain
and to exercise subjective civil rights and to fulfill civil obligation, by concluding in its own name
civil juridical acts through its organs.
A legal person expresses its will through its management organs. Unlike the natural person, an
abstract construction as the legal person cannot have its own will unless the law stipulates that.
Between the legal persons and the management organs there is the so-called legal representation,
meaning that the management organs, either in unipersonal form or collective form, represents the
legal persons within the relationship with third parties.
Similar to the abstract capacity of a legal person, its concrete capacity has an active side (the
acquiring and exercise 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 tight
connection. The abstract capacitys specialization also limits the content of the concrete capacity,
because the concrete capacity cannot be larger than the abstract capacity. But it could be smaller.
Also, the plurality of the management organs and their competences can be another limit of the
concrete capacity.
When does it begin?
It is considered that the legal person obtains its concrete capacity at the same time with its abstract
capacity, 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. Besides the anticipated abstract
capacity, the legal person has an anticipated concrete capacity from the moment of its setting up and
with the view to its valid setting up.
When does it end?
The concrete capacity ends when the existence of the legal person ends. It can also end in case the
legal person is reorganized: 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. By identification it is usually meant the individualization of a subject of law who is on his
own name part of the juridical relationship. The identification attributes for a legal person are: the
denomination, the headquarters, the nationality, the trade mark, the emblem, the fiscal code, the
telephone, fax, the bank account etc.
The identification attributes are non-patrimonial rights and they have the following features:
- are opposable erga omnes- being absolute rights
- are inalienable- they cannot be transferred through juridical acts
- are indefeasible- meaning that they cannot be lost if they are not used
- are personal- are tightly linked with the person
- Universality- any legal person has the right to have identification attributes.