The recent conceptual framework of the commercial law in light of the New Romanian Civil Code
February 2013 | EXPERT BRIEFING | CORPORATE LAW
In order to meet the challenges of transforming and modernising Romania’s business environment, the most important innovation has been the New Civil Code (NCC) which is the legal basis for monist, unitary regulation of all private law relations.
Therefore NCC, by its express provisions contained in Article 3, incorporates a great number of regulations, impacting family relations, trade and private international law provisions. It also applies to the relationship between professionals, and among professionals and other subjects of civil law. In light of the introduction of the NCC, it would appear that it is now necessary to redefine certain terms and concepts in the field of commercial law, which is no longer regarded as self-regulated, but embedded and included in the monistic regulation of the NCC.
It was argued that as a consequence of monist regulation, the classical notion of commercial law and commercial companies would be abandoned, but how can these concepts be replaced? Regardless of the terminology that we use, the need for specific rules for legal commercial activity is determined by the scope and objectives of trade relations, such as timeliness, compliance with any terms and conditions assumed, credit and security. Regardless of the unity of private law unity from a legislative point of view, commercial law science is imperative, and its existence undeniable. Therefore the scientific autonomy of commercial law cannot disappear when the autonomous regulation does.
We can see that NCC takes over from some profound legal commercial institutions, extending them not only for the legal regulation of professionals, but even more, some of them on all private law relations. We may rather discuss the ‘commercialisation’ of the civil law rather than the ‘civilization’ of commercial law.
It seems that the term ‘commercial law’ now needs to be replaced with another, and several options have been proposed, of which ‘business law’ or ‘professional contract law’ are worth mentioning. Proposals such as ‘commercial civil law’ or ‘professionals’ law’ do not fit the bill.
Business law is a very broad concept, encompassing traditional commercial law and various other business concepts necessary to carry out business activities, including taxation, consumer protection, labour relations, the business ethics elements of economics, management, marketing, advertising, and even elements of private international law, criminal law, public law and government intervention in general. The solution of replacing the notion of commercial law with a ‘professional contracts law’ is not plausible, since the latter law contains several other institutions and concepts which are contained in classic commercial law.
The theoretical problem of commercial law and company law autonomy has important practical applications, and is closely linked to the concept of private law unity. Until 1 October 2011, Romanian regulation confirmed the autonomy of commercial law which is part of the family of private law along with civil law, but following the NCC regulations, the trend is toward the uniformity of some regulations related to persons, obligations and contracts.
As a corollary, we are of the opinion that the established NCC regulatory monistic approach does not automatically lead to the need to eradicate the word ‘commercial’ in legal language and hence the commercial law. Rigor and clarity of expression has no claim to the effective removal and disappearance of this word and its lexical family from the Romanian legal landscape.
The new subjective system implemented by the NCC to determine the object of commercial law
In the legal sense, ‘commerce’ refers not only to trade operations and the movement of goods, but also to manufacturing operations, the execution of work, construction, services and other entrepreneurial activities.
According to classical doctrinal concepts, there are two systems for determining the scope of applicability of commercial law: the subjective and the objective system.
The subjective system of commercial law is traditionalist and refers to the person – for company law is considered as a professionals law – or professional trade law – of those who exercise and develop commercial activities. In this view, commercial law should regulate only commercial institutions that have a professional character, not including the person performing an incidental activity to benefit from trade laws, as occasionally trade actions are governed by civil law. In business, as in any profession that has its own rules, operators must obey those rules, thus any trader’s operation is considered a commercial operation.
The objective system takes into consideration the nature of the operation, whether it is commercial or not. Thus, commercial law should govern a particular category of legal acts and facts, regardless of who carries them, as the Commercial Code is a code of trade and not a code of traders.
After the NCC’s entry into force, it adopted the subjective system through the unification of private law, meaning it has absorbed the same code of regulations regarding professionals and their enterprises, and other contracts and concepts of the commercial law, although some provisions are still covered by special laws.
The influence of the NCC over the autonomy of commercial law
A number of regulations have remained outside the NCC, regulated by special laws, such as those involving companies that are the most important actors on the stage of commercial law: special commercial companies such as insurance companies and credit institutions, banks in general, financial intermediation companies, and companies issuing securities.
Thus, commercial law still retains many of its original institutions by separate legislation besides NCC regulation, which claims to be monistic. However, the NCC establishes certain provisions applicable only to professionals. Because normative acts remain outside the NCC, we believe that commercial law does not disappear with the unification of private law – for trade itself, as an activity, persists – nor do merchants, even if they are now subscribed to the notion of professionals.
On notion of ‘professional’ and ‘enterprise’ in the NCC theory
The objective of NCC Article 2 is to regulate relations of persons as subjects of civil law, including professionals and non-professionals, in addition to individuals and legal persons. NCC is the basic law for all commercial matters covered, although we believe it should actually act as ordinary law for all commercial areas, regardless of their direct regulation within the NCC, such as companies, insolvency, banking, transport, bills and so on. As Article 3 of the NCC refers to the general application of the NCC, it applies to the relationship between professionals and their relationships with any other subjects of civil law.
NCC Article 3, paragraph two, introduces the new term ‘professional’ in a broader sense as the operator of an enterprise, with or without profit. Although the term ‘professional’ is defined by another – ‘enterprise’ – the problem is not solved within this approach and is a technique to avoid. Paragraph three of the same article deals with the operation of an enterprise. This refers to the activity of systematically carrying out production activities, trading or supplying a service, whether aimed at achieving profit or not. An enterprise, therefore, appears to be the legal form of an activity with a professional character, with a distinction on the object and purpose of the activity. So what differs notably in the nature of the ‘enterprise’ is generating a profit.
The legislature intended to clarify that the term of ‘professional’ is employed to replace the entry into force of all the other terms that are found in various special laws dedicated to them and their activity. Now the terms that have commercial relevance are ‘professional’ and ‘enterprise’, which replace the former ‘traders’ and ‘deeds or acts of trade’.
We cannot acquiesce to the NCC’s author’s view that it has civilized commercial legal relations by transforming them into civil relations, leading to the disappearance of commercial law. On the contrary, we believe that what was actually accomplished was a ‘commercialisation’ of the civil law – as ordinary law passed on a series of rules so useful and necessary as to be extended to all professionals and, sometimes, to all private law relations. In conclusion, the NCC is rather a code that has absorbed commercialisation.
The opinion that commercial law has ceased to exist is expressed too easily, because even if it is not autonomous, this does not mean it has ceased to exist; rather, it has been regulated in a monistic fashion through the NCC. In any case, going forward the NCC is common to all branches of private law, with parallel special legislation governing the legal status of traders. This legislation is a decisive argument on the legitimacy of commercial law, not as autonomous, but as a subject necessary for the training of future lawyers that should form part of the curriculum of any law school.
Relations and business activities do not disappear, even if trading criteria differs from the traditional system in place for almost 150 years. Consequently, the words ‘commercial’ or ‘trade’ are not enemies, but simply words, undamaged by the implementation of a monistic construction, and will be improved by successive regulatory changes to come. All this should not constitute such an obvious hostility towards commercial law, which proves its usefulness and timeliness just by asserting itself as the most dynamic branch of private law.
Cristina Florescu is a lawyer and lecturer at Spiru Haret University. She can be contacted on +40 (0)722 236 757 or by email: firstname.lastname@example.org.
© Financier Worldwide
Spiru Haret University