The Administrator - Representative or Employee of the Limited Liability Company. Aspects of Comparative Law

• Author: Olga-Andreea Urda
• Profession: Alexandru Ioan Cuza' University of Iasi, Romania
• Pages: 35-43

The Administrator - Representative or Employee of the Limited Lia-

bility Company. Aspects of Comparative Law

Lecturer Olga-Andreea URDA

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Abstract

It has been frequently analyzed, in the doctrine and practice of commercial law,

whether it is op portune to conclude an individual emplo yment contract between the ad-

ministrator and the limited liability company or a mandate contract. In the context of the

free movement of persons in the Member States of the European Union, we consider that

it is necessary to have a comparative analysis of company law, especially in the particular

matter of the administrator-society relationship. The present study proposes an analysis

of compared law between the provisions of Romanian law and those of French la w re-

garding the management of contracts that may intervene between the administrator and

the company. Thus, the difficulties related to determining the possibility or not of the

administrator to conclude an individual employment contract with the limited liabili ty

company can find their solution through a mirror analysis of another legislative model.

Keywords: administrator, mandate contract, individual employment contract,

limited liability company

JEL Classification: K20, K22

1. Introduction

In the doctrine and practice of corporate law, the question has frequently

been asked to what extent an administrator can conclude an individual employ-

ment contract with the company he administers.

In the case of the joint stock company, the answer is offered unequivo-

cally even by Law no. 31/1990, meaning in which art. 1371 para. (3) expressly

provides that "during the fulfillment of the mandate, the directors cannot conclude

with the company an employment contract. If the directors have been appointed

from the employees of the company, the individual employment contract is sus-

pended during the term of the mandate". But another is the situation of the limited

liability company, in which the silence of the law led to a series of polemics.

Obviously the problems that exist in the practice of commercial law, gen-

erated by the lack of an express provision of the law, demand, de lege ferenda,

an intervention of the legislator that expresses its position clearly in the face of

this controversy.

We will thus observe in the analysis of comparative law below, that the

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Olga-Andreea Urda - „Alexandru Ioan Cuza” University of Iasi, Romania, olga.alexandru@

uaic.ro.