B. SOCIETĂŢI ÎN DIFICULTATE ŞI ÎN INSOLVENŢĂ Dreptul asociatului de a formula acţiune în pretenţii împotriva unui asociat administrator pentru daunele cauzate societăţii
B. COMPANIES IN FINANCIAL DIFFICULTY AND IN INSOLVENCY The associate’s right to take an action against a co-associate for damage caused through the company

Summary/Abstract: In this paper we try to investigates the conditions under which an associate may bring a direct action against a co-associate for damage caused through the company, instead of relying exclusively on actions brought in the company’s name. It situates the problem in the tension between separate legal personality and the doctrine of reflected loss, on the one hand, and the principle of full reparation and effective minority protection, on the other. Drawing on a functional comparative analysis of English, Delaware, German and French law, the study reconstructs the main tests used to distinguish direct from derivative claims (including the Tooley test, actio pro socio and the French dichotomy between action individuelle and action sociale ut singuli) and to delimit corporate loss from the shareholder’s personal and distinct loss. Against this background, the paper examines Romanian company law, particularly Law no. 31/1990 and the Civil Code, arguing that although duties of loyalty and good faith between shareholders are recognised, there is no coherent statutory framework for derivative actions or for defining personal and distinct shareholder prejudice. It identifies several structural gaps, such as the absence of an explicit derivative remedy and the restrictive grounds for exclusion of shareholders, and proposes a set of reforms inspired by comparative models: a legislative test to separate reflected from personal loss, the codification of a subsidiary derivative action, and special procedural mechanisms allowing non-conflicted shareholders, especially in closely held companies with few members, to pursue claims either in their own name or on behalf of the company in situations of conflict of interest or governance paralysis.

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