Administratorul statutar versus administratorul special! Cine răspunde?
Statutory Administrator versus Special Administrator! Who is Responsible?

Summary/Abstract: The partners are granted the right, under the conditions and quorum provided by the articles of incorporation, to decide on the modification of the company by adopting a resolution to that effect. For example, they may decide on the dissolution of the company, which can be carried out with or without liquidation. If the partners declare that there are no outstanding claims or that an agreement has been reached with the creditors regarding the settlement of liabilities, then there is no liquidation phase during which potential social creditors could recover their debts. This simplified procedure (also regulated, for example, by Law no. 359/2004) allows for the rapid removal of the company from the registry, but it assumes the absence of unpaid claims. In practice, sometimes partners falsely declare that the company has no debts in order to obtain deregistration without going through liquidation, thereby harming their creditors. Regarding how the potential damage can be remedied by the partner(s) who adopted the resolution to amend the articles of incorporation–damage represented by the claim the creditor has against the company–the case law is inconsistent. Opposition submitted under the conditions of Article 61 of Law no. 31/1990, although admissible, is not sufficient. Both the statutory administrator and the special administrator manage to avoid liability for the damage caused to creditors by the decision to amend the articles of incorporation–dissolution and deregistration of the company–because the procedure for holding them liable is cumbersome and sometimes impossible.

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