Company without act of incoporation

Abstract

The general theory of companies based on specialized laws governing them is based on their naming and classification according to related characteristics (named companies). All companies have prescribed general constitutive (essential) elements which are common to them, the lack of which would entail invalid company, but each individual company, depending on the type, has some special elements which are added to the general ones with identical legal effect. In the context of the existence of the concept of legally named types of companies, the question arises of the possibility of the existence of “de facto company” as a kind of unnamed company. Although this company does not exist in the conceptual sense (the legislator does not recognize it), it exists in the functional sense, and it is recognized as such by comparative case law. In the Serbian legal practice (civil and commercial), this company also exists in this sense, but Serbian case law still does not recognize it. In our opinion, recognizing the existence of this company in a number of factual situations of association of legal and/or natural persons, and on that basis the appropriate application of the regime of companies (mainly partnerships) to this company, would raise legal security threshold and improve the position of creditors of this company, its members, on the basis of the institute of fairness and thus moralizing the law.