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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of September 27, 2016 No. 27

About exceptional case of illegality of some provisions of the Law No. 135-XVI of June 14, 2007 on limited liability companies (inheritance of share in the authorized capital) (the Address No. 97g/2016)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Anna Floryan,

in view of the address provided and registered on August 2, 2016

having considered the specified address in open plenary meeting, considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The address about exceptional case of illegality of some provisions of Articles 17 and 49 of the h formed the basis for consideration of the case. (1) the item and) the Law No. 135-XVI of June 14, 2007 on limited liability companies, declared by the lawyer Victor Pantsyru in No. 3-771/16, being in production of court of the sector to Chentr мун. Chisinau.

2. The address was brought into the Constitutional court on August 2, 2016 by the judge of court of the sector to Chentr мун. Chisinau Svetlana Tizu according to provisions of Art. 135 of the h. (1) the item and) and the item g) Constitutions in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.

3. The author of the address, in effect, considers that provisions of Articles 17 and 49 of the h. (1) the item and) the Law on limited liability companies according to which changes are made to the constituent document only by the decision of general meeting of members of society contradict Article 46 of the h. (6) Constitutions.

4. Determination of the Constitutional court of September 6, 2016, without decision in essence, the address was acknowledged acceptable.

5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova and the Government.

6. In open plenary meeting the address was supported by the lawyer Victor Pantsyru. The parliament was represented by Valeriu Kuchuk, the main consultant in the head legal department of the Secretariat of Parliament. The government was represented by Eduard Serbenko, the deputy minister of justice. The vice-chairman of the State registration chamber Andrey Sheremet participated in meeting.

Circumstances of the main dispute

7. Based on the certificate on the right to inheritance under the law from June 26, 2014 D.G. is heir of share in the amount of % 18,33 in the authorized capital of KP of "Dione" of Ltd company belonging to his mother T.G.

8. General meeting of members of society refused on May 29, 2015 D.G.'s recognition as the participant of KP of "Dione" of Ltd company.

9. Meanwhile the heir D.G. filed in the State registration chamber petition for entering into the state register of legal entities of data on its introduction in the list of participants of KP of "Dione" of Ltd company from shares in the amount of % 18,33.

10. The state registration chamber passed on July 3, 2015 the decision on variation of the statement of D.G., having referred to lack of the relevant decision of general meeting of members of society.

11. D.G. took a legal action on August 4, 2015 sectors to Chentr мун. Chisinau administratively with the claim against the State registration chamber in which demanded to recognize him as the participant of KP of "Dione" of Ltd company based on the certificate on the right to inheritance and to make corresponding changes to the state register of legal entities.

12. During consideration of the case the lawyer Victor Pantsyru addressed with the petition for exceptional case of illegality of some provisions of Art. 17 and Art. 49 of the h. (1) item and) Law on limited liability companies.

13. The court of the sector passed on July 25, 2016 to Chentr the decision on the direction of the address on exceptional case of illegality to the Constitutional court for permission.

Applicable legislation

14. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, the Art. 140):

Article 9. Basic principles of property

"(1) the Property can be public and private. It consists of material and intellectual values.

(2) the Property cannot be used to the detriment of the rights, freedoms and advantage of the person.

[…]".

Article 46. Right of private property and its protection

"(1) the Right of private property, and also the debt obligations undertaken by the state are guaranteed.

(2) Nobody can be deprived of the property differently as in case of the social necessity established by the law on condition of fair and preliminary compensation.

[…]

(6) the Inheritance right of private property is guaranteed".

Article 127. Property

"(1) the State protects property.

(2) the State guarantees to the owner realization of the property right in all forms which are not conflicting to interests of society.

[…]".

15. Applicable provisions of the Law No. 135-XVI of June 14, 2007 on limited liability companies (M.O., 2007, No. 127-130, Art. 548):

Article 12. Constituent document

"(1) the Constituent document of society is the foundation agreement and/or the charter. The legal entity founded by one founder performs the activities based on the charter approved by the founder.

[…]".

Article 13. Contents of the constituent document

"(The Constituent document of society shall contain 1):

a) surname, name, birth date and birth place, the residence, nationality and other these identity certificates of the founder – physical person;

the name, the location, national identity (country of incorporation), the state identification number of the founder – the legal entity;

b) name of society;

c) object of activity;

d) size of the authorized capital;

e) nominal value of shares of members of society;

f) size of shares (deposits) of members of society, procedure and terms of their introduction;

g) property value, brought as deposits in nature, and procedure for its assessment – in the presence of such deposits;

h) society location;

i) structure, powers, procedure for forming and functioning of governing bodies of society;

j) procedure for representation;

k) branches and representative offices of society – in the presence of those;

l) basis and procedure for reorganization and liquidation of society.

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