THE TRADE ENTERPRISE LAW
Part one
INTRODUCTORY
PROVISIONS
Head
one
TRADESMAN,INDIVIDUAL TRADESMAN,TRADE
ENTERPRISE
Division one
Tradesman according to activity
Art.1
A tradesman according to this Law is
every legal entity or a physical person independently performing any of the following activities :
1. purchase and sale of movables regardless of
the fact whether they are sold unchanged, processed or or reprocessed;
2. trade with securities;
3. purchase of movables for their processing or reprocessing for other
persons,provided that the work exceeds the scope of a “ smaller craft”;
4. banking activities;
5. insurance;
6. transportation of persons and goods;
7. commission work,forwarding,storing and
leasing;
8. trade agency and mediation;
9. catering-tourist activity,information
activity,marketing or performing other
trade services;
10.
production of motion pictures ,video tapes,audovisual recordings,software as
well as other similar activities;
11.
publishing and printing activities and other connected with trade with books
and art works ;
12. purchase,construction and arranging of
immovables for sale.
Tradesman
according to the nature and scope of activity
Art.2
1.
A tradesman according to this Law is also every person conducting a
business deal which according to the nature and the scope of activity has to be organized and conducted in a way
in which trade activities are conducted although not mentioned in Art.1 of this
Law,provided that the company has been entered in the trade register.
2.
The provisions of this Article are applicable also in the field of
agriculture and forestry only in respect to the business deals for
processing or reprocessing of the own agricultural and forest products.
3.
Persons dealing with free occupations ( advocates,public
notaries,doctors,patent engineers ,architects,artists ,accountants etc.) are
considered tradesmen according to this Law if the regulations according to
which they are performed stupilate for so.
Tradesman according to description
Art.
3
Should the company be entered in the
trade register,it may not be claimed that the business deal conducted under the
name of that company is not trade one.
Persons
not considered tradesmen
Art.4
According to this Law,the following
persons are not considered tradesmen :
1.
physical persons dealing with agriculture ( farmers)
2. craftsmen and persons rendering
services or having free occupations,except
for occupations which could be
treated as business deal according to Art.2 point 1 of this Law ,and
3.
persons rendering catering services by renting rooms in their own homes.
Application of provisions for
the tradesman on persons performing
trade activity
Art.
5
The provisions of this Law about the obligations of the
tradesman are applicable also to persons performing trade activities regardless of the fact that they are not
allowed to perform them ,according to the regulations for such activity,or do
not comply with the conditions for performing of such activity.
Small -scale tradesman
Art.
6
1.
The provisions of this Law about
the company,business books and the
management do not refer to persons not
considered tradesmen according to this
Law ,and are dealing with a small scope of trade activity.
2.
Trade activities considered
small - scale activities and the manner of conducting of thier business books
are stipulated for by a regulation adopted by the ministry competent for
economic matters in compliance with the ministry competent for finance matters
,in accordance to the scope of the business deal in the corresponding activity.
3.
For carrying of a small-scale trade activity a public company or a limited partnership company can not be
established.
Provisions
for the small-scale tradesman are not applied to the companies
Art.
7
The provisions of this Law regulating the work of the small-scale
tradesman are not applicable to the relations of the joint-stock company,the
limited liability company and the limited partnership joint-stock company.
Division two
INDIVIDUAL TRADESMAN
Individual
tradesman
Art.
8
1.
The individual tradesman shall be the person performing any of the
activities from Art.1 of this Law as an occupation.
2. Any business-capable person with permanent place
of residence in the Republic of Macedonia may be registered as an individual
tradesman.
Limitations
Art.
9
The following persons can not be registered as individual
tradesmen:
1. the one over which liquidation
procedure has been applied;
2. the one that has deliberately
gone bankruptcy and the creditors can
not settle their outstandings.
Entry
into the the trade register
Art.10
1.
The individual tradesman is entered into the trade register on the basis
of an application containing :
·
the name and
surname,place of residence,address and
main number;
·
the trade name under which the activity shall be carried
out;
·
the seat and address
where the activity shall be carried out;
·
subject of work.
2.
The application shall be accompanied by a form for the authorized
signatory and a statement that the tradesman is not deprived of the right to
performing any of the activities set forth in Art.1 of this Law.
3.
A person may register only one trade name as an individual tradesman.
Trade
name of the individual tradesman
Art.11
1. The trade name of the individual tradesman shall contain
his personal name,his father’s name and the surname.
2.
The trade name of the individual tradesman must contain the designation
“TE”.
Transfer
of a trade name
Art.12
1.
The trade name of the individual
tradesman may be transferred to a third party
together with its business deal.
2.
The transfer of the trade name from point 1 of this article may be done
by the individual tradesman upon his claimants consent.
3. The individual tradesman’s
successors undertaking the business
deal may keep the trade name of the
individual tradesman.
4.
In cases from point 1 and 3 of this Article ,the name of the new owner
is attached to the trade name.
5.
The transfer of the trade name
is entered into the trade register and is published in the “Official
Gazette of the Republic of Macedonia”.
Joint and several liability with the former owner
Art.13
1.
The person continuing the work under the former firm,with or without an
addition pointing out the change of owner ,has a joint and several liability
for the obligations with the former
owner unless otherwise stipulated for
with the creditors.
2.
The outstandings are settled by the creditors from the former owner
first.
Termination of
the work of the individual tradesman
Art.15
1.
The individual tradesman shall report the termination of the work
to
the competent organ for public incomes.
2.
The individual tradesman latest three months prior to reporting of the termination to the organ from point 1
of this Article in a proper manner ( in
the daily press,business premises etc) shall announce the termination of work
and shall cite the date of termination of work.
3.
The provision from point 2 of this Article is applied also when the individual
tradesman intends to sell the enterprise or to invest in a company.
Division
three
The concept of a trade enterprise
1.
The trade enterprise (hereinafter referred to as : the enterprise) is
association of two or more physical persons and legal entities investing
money,objects and rights into property
which they make use of in the joint
work and jointly share the profit or
losses of the work.
2.
Persons investing in the main capital assets are founders of the
enterprise (hereinafter referred to as
Founders) i.e. shareholders of the enterprise (hereinafter referred to as
Shareholders).
3.
The rights and liablities the founder aquires according to the deposit
in the main capital assets are his share in the enterprise (hereinafter
referred to as Share).
Forms
of Trade Enterprises
Art.18
1.
According to the form,regardless of the activity ,the enterprise may be
:
· a public company;
· a limited partnership company
· a limited liability company;
· a joint-stock company
· a limited partnership joint-stock company
2. The enterprise
may be founded only in form and manner prescribed by this Law.
3. For performing banking activities,trade with securities
and insurance,only joint-stock companies may be founded.
4.
As an exception in point 3 of this Article, for performing of banking
activities through a savings-bank and exchange office and for activities of
mutual insurance ,also limited liabilitiy companies may be established.
Agreement,i.e.Statute
of the Enterprise
Art.19
1.
The form ,the duration,trade name,seat,the subject of work,the amount of
the main capital assets as well as the organization and management of the
enterprise are set forth by the
Agreement i.e. the Statute of the enterprise.
2.
The Agreement is concluded in
written form as well as the changes in it and its annexes.
3.
The contents of the Agreement.
i.e. the Statute of the enterprise is stipulated by the founders in compliance
with the Law.
4.
In order to the to make the
preparations for founding of an
enterprise ,the founders may agree on the activities that are to be carried
out. Should the parties fail to fulfill the obligations undertaken by the
Agreement,they are liable only for the damage caused .
Duration of the Enterprise
Art.20
Should the Agreement i.e. the Statute of the enterprise not stipulate the duration of the
enterprise,it is considered to be established for an indefinite period of time.
The Enterprise as a Legal Entity
Art.21
1.
The enterprise as a legal entity may aquire rights and undertake
obligations , aquire ownership over other actual rights, sign contracts and
other legal dealings, bring charges
and be
defendant.
2.
The enterprise shall gain the status
of a legal entity from the date of its entry into the trade register.
3.
The founder,i.e. the person acting in the name of the enterprise prior to its gaining of the status of a
legal entity,shall have a joint and
several liability for the undertaken obligations with the other founders in case when the enterprise which is
correctly constituted and entered into the trade register,does not accept the
undertaken obligations. Should the enterprise accept the undertaken
obligations,it is considered to have undertaken them from the day when they had
arisen.
4.
In case when during acting of the founder in the name of the enterprise
in the founding procedure,the founders have aquired any rights, they are
obliged to transfer them to the
enterprise after the entry into the
trade register,provided that the enterprise approves.
Kinds of liability for the obligations
Art.22
1.
For its obligations,the enterprise
shall be liable with all is property.
2.
The founders of the public company and the complementary partners in the limited partnership company shall
have a personal,joint and several unlimited liability for the obligations of the company with all their property.
3. The founders in
the limited liability company ,the shareholders in the joint-stock company as well the dormant partners in the limited partnership company are not liable for the
obligations of the company,unless stipulated for in this law.
Special liabilities of the founders
Art.23
1.
The founders of the enterprise
are liable for the obligations of the enterprise also in the following cases:
-
if thay had abused the enterprise as a
legal entity for achieving aims which
for them as individuals are forbidden;
-
if they had abused the legal entity in order to do damage to their creditors;
-
if contrary to the law they had disposed of the property of the legal
entity as if with thier own property ;
-
if in their favour or in favour of any other person they had reduced the
property of the enterprise ,and
had been aware or had to be aware that
the company is not able to fullfil all its obligations toward third parties.
2.
Point 1 of this Article is appropriately applicable to the
liability of the secret founder.
Persons
who may establish an enterprise
Art
24
1.
An enterprise may be
established by domestic and foreign
physical persons and legal entities.
2.
A foreign person ,in accordance with this Law ,shall be every legal entity having a trade name entered in a trade register abroad or
entered in a trade register in his country and every physical person which is a foreign citizen,or a
fugitive.
3.
A citizen of the Republic of Macedonia
bearing also another citizenship shall chose whether he would use the position as a citizen of
the Republic of Macedonia or the one of a foreign person.
4.
Each person of point 2 of this Article who aquires a share or shares in
an enterperise or invests assets in it on an agreement basis ,has the status of a
foreign person.
Right
to participation in founding of an enterprise or being a founder in many enterprises
Art.25
1.
Anyone may participate in founding
of an enterprise or be a founder
or shareholder in more enterprises unless forbidden by this Law.
2.
An enterprise may be founded by
at least two founders ,i.e. at least two founders are required for its
existance.
3.
A physical person may at the same time be a founder of unlimited liability in one enterprise only. A public company and a limited
partnership company may not be a founder of unlimited liability in another
enterprise of that type.
Conditions
under which a foreign person may be a founder of an enterprise .i.e. a shareholder
Art.26
1.
A founder,i,e, shareholder may be any foreign physical person or legal
entity.
2.
A foreign person may found an
enterprise or to aquire shares in the manner and under conditions set
forth for the citizens of the Republic of Macedonia and for the legal entities
entered in the trade register on the territory of the Republic of Macedonia
unless otherwise provided by law.
3.
Participation of a foreign person in a newly founded and in an existing
enterprise is not limited unless
otherwise stipulated for by another law.
4.
The enterprise with foreign
participants has all the rights and liabilities as an enterprise without
foreign participants ,except for the cases prescribed by law.
Approval for founding of an
enterprise by foreign persons
Art.27
1.
For founding of an enterprise
which is fully owned by one or more foreign persons.i.e. in which they
are in majority,for transformation of
the enterprise into an enterprise of that type, or for aquiring majority of
foreign persons in the enterprise an
approval is required from the ministry competent for the issues on the foreign
economic relations.If within 60 days from the day of submitting of the
application approval is not received ,it is considered for the approval not to
be given.
2.
If the foreign participation does not reach the participation set forth
in point 1 of this Article,for founding of an enterprise i.e. for aquiring
participation in an existing enterprise, an approval is not required.The
aquired participation in the newly founded
enterprise .i.e. in the existing enterprise is entered in the foreign investments register kept in the
ministry competent for foreign economic relations.
Rights
of foreign persons
Art.28
1. The rights
aquired by virtue of the invested assets in the enterprise ,may not be changed or reduced by a law or
other regulation.
2.
The share of the profit belonging to a foreign person ,i.e. the amount
belonging to a foreign person in case of termination of the enterprise or partial or total abalienation of the
share of a foreign person ,may,by order of the foreign person ,be freely
,without permission, transferred abroad
in the currency of the investment provided
that the company posesses money funds .
3.
The discounts and special privileges
for investments and operation by foreign persons are prescribed by law.
Statement for founding of the enterprise
Art.29
1.
The founders and the first members of the managing bodies ,i.e.
supervising bodies shall submit a statement to the registration court citing the activities performed for founding of the enterprise and claiming that the enterprise has been founded in accordance with the law.
2.
Should the person listed in point 1 of this Article fail to submit the
abovementioned statement,the registration court shall reject entering
of the founding into the trade register.
Statament
in case of change of enactments of the enterprise
Art.30
1.
The provisions from point 29 of this Law are applicable also in case of
change of the agreement i.e. the statute of the enterprise.
2.
The statement is submitted by the managing bodies members i.e. the
supervising bodies members performing this function at the time of change of
the agreement i.e. the statute of the
enterprise.
Joint and several liability for damage while founding of the enterprise
Art.31
1.
The founders of the enterprise
as well as the first members of the managing and supervising bodies
shall have a joint and several liability for the damage done due to the non -
entering of any of the obligatory provisions stipulated by this law in the
agreement i.e. in the statute of
the enterprise,or due to missing or incorrect carrying out of the procedures
prescribed by the law or due to non - enforcement of the other regulations on founding of an enterprise.
2.
The point 2 of this Article is applicable also to change of the agreement i.e. the statute of the enterprise
with regard to the members of the managing and supervising bodies performing this function at the time the
change has taken place.
Impossibility for invoking invalidity of the agreement
or
the statute of the enterprise
Art.32
1.
After the entry of the enterprise into the trade register noone of the
founder may invoke invalidity of the
agreement i.e. the statute of the enterprise due to error, fraud or threat taken place at the time of
conclusion of the agreement i.e. adoption of the statute of
the enterprise.
2.
The provision from point 1 of this Article is applicable also to the
changes in the agreement i.e. the statuteof the enterprise.
When
is an enterprise considered not founded
Art.33
1.
The enterprise is considered not founded in case of breach of the
law which could not be removed.
2.
Each person having legal interest may require for the
registration court to declare non founding of the enterprise.
3.
The enterprise which is considered not to be founded shall be officialy deleted by the court from the trade
register
4. For the undertaken obligations,the founders h