On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Abdul Fahim, Registrar, considering the appeal filed on 2 august 2016 and recorded at the same time, examining the appeal mentioned in open court, taking into account the laws and proceedings, Acting in the Council Chamber following the judgment, a decision: 1. The origin of the case lies the exception of neconsti-tuționalitate of the provisions of articles 17 and 49 para. (1) (a). the Act No.) 135-XVI of 14 June 2007 concerning limited liability companies, raised by geographic location, Attorney Victor in file No. 3-771/16 on Center Court role, mun. Chişinău.
2. The appeal was lodged with the Constitutional Court on 2 august 2016 by Svetlana Karbhari, judge of the Court, within the Center. Chişinău, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
3. the author of the main exception claimed essentially that the provisions of art. 17 and 49 para. (1) (a). the companies Act) with limited liability, whereby amendment of Constitution is only carried out by decision of the general meeting of shareholders, are contrary to article 46 paragraph 2. (6) of the Constitution.
4. By decision of the Constitutional Court of 6 September 2016 referral has been declared admissible, without prejudeca Fund case.
5. In the process of examination referral, the Constitutional Court requested the opinion of the Parliament, President and Government.
6. At the plenary session of the Court of constitutionality, the exception was supported by lawyer Victor geographic location. Parliament was represented by Mr Valeriu Kuchuk, Senior Adviser in the Directorate-General of the Secretariat of the Parliament. The Government was represented by Mr. E. Taha, Deputy Minister of Justice. The meeting was also attended by the Vice-President of the Court and the State registration Chamber, Mr. Andrei Șeremet.
The MAIN DISPUTE CIRCUMSTANCES 7. Pursuant to the legal heir certificate dated 26 June 2014, D.G. is the legal heir of the social party of 18.33% of share capital of SC "Dione", held by his mother, T.G. 8. On 29 may 2015, the General Assembly members refused acceptance of the inheritance as D.G. associate of SC "Dione".
9. Meanwhile, the heir apparent has asked Joe State registration Chamber introduction into the State Register of legal entities of data relating to its associate in the SC "Dione" with 18,33% share.
10. On 3 July 2015, State registration Chamber issued a decision rejecting the request of D.G., citing the lack of a decision in this regard to the general meeting of shareholders. 
11. On 4 august 2015, D.G., to Center Court, mun. Chişinău, administrative action against the State registration Chamber, which called for its recognition as a member of SC "Dione" SRL on the basis of the legal heir certificate and order the introduction of amendments in the State Register of legal persons.
12. In the process, the lawyer Victor requested the lifting of geographic location exception of unconstitutionality of certain provisions of article 8. 17 and 49 para. (1) (a). the companies Act) with limited liability and referral to the Constitutional Court.
13. On 25 July, 2016, the Center Court ordered the lifting of non-constitutionality exception and transmission of referral to the Constitutional Court for settlement.
PERTINENT LEGISLATION. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are the following: 9Principiile property fundamentals "(1) the property is public and private. It consists of material and intellectual goods.
(2) no property may be used to the detriment of the rights, freedoms and human dignity. "


Article 46 Right to private property and its protection "(1) the right to private property, as well as loans and advances to the State are guaranteed.
(2) no one may be expropriated for reasons dictated by public necessity, as established by law and in advance.
[…]
(6) the right to inherit private property is guaranteed. "


Article 127Proprietatea "(1) the State shall protect the property.
(2) the State guarantees the realization of the right of ownership in the forms required by the owner, if they do not come in conflict with the interests of society. "
15. The relevant provisions of law No. 135-XVI of 14 June 2007 concerning limited liability companies (Official Gazette, 2007, no. 127-130, 548) are as follows: Article 12Actul of the Constitution "(1) the Act of incorporation of the company is the contract for the formation and/or status. A legal entity formed by a single founder on the basis of statutes approved by him [...] ".


Article 13Conținutul of the Constitution "(1) the Act of incorporation of the company shall include: a) name and surname, date and place of birth, residence, citizenship, and other data from the identity card of the founder person; name, registered office, nationality (country of registration), the identification number of the founder of a legal entity;
(b) the name of the company);
c) activity;
(d) the amount of the authorized capital);
e) nominal value of participations to members;
f) amount of participations (shares) to members, their term of;
g) amount of the assets pledged as ventures in nature and how to measure where they were made also a consideration;
h) headquarters;
I) structure, tasks, formation and functioning of the governing bodies of the company;
j) representation;
k) branches and representative offices of the company if any;
l) basis and method of reorganization and liquidation of the company.
(2) the Act of incorporation may include other provisions that do not contradict the law. "


Article 17Modificarea of the Constitution Act of incorporation may be amended only by decision of the general meeting of members. "


Article 25Înstrăinarea social party



"(1) the social side of the party or a social fact can be freely transferred spouse, relatives and Bush berries in a straight line without limit and the sideline up to the second degree inclusive, other associates and society, where the instrument of incorporation provides otherwise.
(2) a member may not dispose of the social side up to the mouth of the intake full subscribed, except in the case of succession.
(3) in the case of the social party of certain persons other than those referred to in paragraph 1. (1) associations have the right to pre-emption. In this case, the alienation is made under the terms of paragraph 1. (4) to (9).
(10) any clause contrary to the provisions of paragraph 1. (2) to (9) is null.
[…]”


Article 30Înregistrarea the assignment of social party "(1) the social side is considered to be governed by the purchaser from the date of registration in the State Register of legal entities of the amendments to the constitutive laws relating to the disposal/acquisition of the social party.
(2) for the registration in the State Register of legal entities of the amendments to the constitutive laws relating to the disposal/acquisition of the social party, the purchaser shall submit to the State Chamber of registration of the legal act of disposal certified by the notary. "


Article 42Dobândirea of associated "(1) the Office of associate is acquired through participation in the formation of the company or by the acquisition, establishment, later a part of society.
(2) a natural person may not acquire an associate membership if she was deprived of this right by court order or by law.
(3) a legal Person may acquire an associate membership if the law or act of incorporation provides otherwise. "


Article 49Competența of the general meeting of shareholders "(1) the exclusive competence of the general meeting of partners shall keep: a) the amendment of the Act of incorporation, including the enactment of a new Editorial Board; […].”


Article 58Adoptarea decisions of the General Assembly of members (1) decisions of the general meeting of members shall be adopted: 2) with at least three-fourths of the votes of all members of society if its statute does not provide for a larger number of votes: a) modifying and completing the Act of incorporation;
[…]”
16. The relevant provisions of the civil code, adopted on 6 June 2002 (Official Gazette, 2002, no. 82-86, 661), are as follows: Article 284Noțiunea heritage (1) Heritage represents the totality of the patrimonial rights and obligations (which can be valued in money), regarded as a sum of active and passive values intertwined, belonging to natural persons and legal entities.
(2) all natural or legal person forming part of its heritage. "


Article 315Conținutul of the right of ownership "(1) the owner has the right of possession, use and disposition over the goods.
(2) the right of ownership is perpetual.
(3) the right to property may be restricted by law or the rights of a third party.
[…].”


Article 316Garantarea of the right of ownership "(1) the property is, under the law, inviolable.
(2) the right to property is guaranteed. No one may be compelled to surrender his property, out only for public interest for a just and prior indemnity. Expropriation shall be carried out in accordance with the law.
[…].”


Article 320Modurile for acquisition of the right of ownership "[...]
(2) the right to property may acquire, in accordance with the law, through the ocupaţiune, legal act, the estate, adverse possession, as well as acceding, and through the legal process when it is translativă.
[…]”


Article 1432Moștenirea "(1) inheritance is the transmission assets of an individuals deceased (he left the legacy) by his successors.
(2) inheritance is a live webcast for the cause of death, universal and indivisible, unitary.
(3) of the Covenant takes place according to Inheritance (testamentary succession) and law (legal succession). "


Article 1444Patrimoniul estate "(1) the assets of the estate include both economic rights (inheritance assets) and economic obligations (liabilities of the estate), on which he left the legacy he had at the time of his death."
17. The relevant provisions of the Protocol. 1 to the European Convention for the protection of human rights and fundamental freedoms (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997) are the following: 1Protecţia property ' means any natural or legal person has the right to respect for his property. No one may be deprived of his property except for public interest and under the conditions provided for by law and general principles of international law.
The preceding provisions shall not affect the right of States to enforce such laws as it deems necessary in order to regulate the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. "
LAW 18. Of the referral, the Court observes that it is aimed at essentially inheritance shares of the successor and its acceptance as an associate of the society with limited liability, on the one hand, and the recording of such changes in State Register of legal persons, on the other hand.
19. Thus, the appeal relates to a set of elements and principles with constitutional value, namely ownership of inherited social party.
A. ADMISSIBILITY Of 20. By decision of 6 September 2016 Court verified the meeting the following conditions for eligibility: (1) subject to the exception comes into the category of acts covered by article 135 paragraph 1. (1) (a). of the Constitution). In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution) the constitutionality of laws, in particular the law on limited liability companies, the competence of the Constitutional Court.
(2) the exception is raised by one of the parties or its representative, or indicates that it is raised by the Court of its own motion

22. Being raised by Attorney Victor in the geographic location no. 3-771/16, which is located on the Center Court, mun. Chişinău, referral concerning the plea of unconstitutionality is made by the subject in charge with this law, pursuant to art. 135 para. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
(3) the provisions of the contested to be applied to the settlement of the case. Note that the power of the Court to settle, with the exceptions of unconstitutionality that had been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
24. the Court observes that the object of the exception of unconstitutionality is some provisions of articles 17 and 49 para. (1) (a). the companies Act) with limited liability, which will be applied to the settlement of the case.
(4) there is a previous judgment of the Court has as its object the contested provisions 25. The Court points out that the contested provisions have not previously been the object of notification constitutionality control.
26. Therefore, the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
27. Thus, in order to elucidate the issues raised in the complaint, the Court will examine the alleged violation of article 46 paragraph 1. (6) of the Constitution, taking into account the principles enshrined in both its case-law and case-law of the European Court of human rights (hereinafter the ECHR).
B. the CASE of alleged infringement of the FUND article 46 paragraph 2. (1) and (6) of the Constitution. In the author's opinion, the provisions of the main exception subject to constitutionality is in breach of article 46 paragraph 1. (6) of the Constitution, according to which: "(6) the right to inherit private property is guaranteed."
A. Arguments of the author neconsti-exception tuționalitate 29. The exception of unconstitutionality, reasoning the author alleges that the assignment of the right to amend the Act of incorporation to the general meeting exclusively to members not to allow the State registration Chamber, in the absence of such a ruling, to record the successor as an associate in social inheritance share limit.
30. The author claims that the presence of the words "only" in art. 17 and "exclusively" in art. 49 para. (1) (a). a) of law affect the right to private property, the successful heritage through art. 46 para. (6) of the Constitution, which is why the successors may not share has inherited.
B. Arguments of the authorities 31. The President of the Republic of Moldova claims that, when the articles of incorporation may not be modified with regard to the composition of the members because members of bad faith, State registration Chamber may not create obstacles to the registration of the successor in law the State Register. However, in such a case, the decision to amend the Act of incorporation to the general meeting of shareholders may only have a technical nature in respect of the transfer of ownership of the social party successor. The President considers that the contested act a discretionary character which may cause impediments to the realization of the right to property.
32. In its opinion, Parliament stated that the replacement of a paired with another in the company with limited liability, is an amendment of the instrument of incorporation and, therefore, in such cases need to be complied with the procedure prescribed by law, but not harm the already obtained ownership of the successor. As regards the quality of associated to his successor, Parliament noted that the legal legacy of the heritage should not deal with the issue of State registration of legally acquired property. Parliament considers that the contested provisions denotes a certain legal practice of applying them, but it's not a problem of constitutionality.
33. According to the Government, noted that the Act of incorporation is the document expresses the wish of the founders to establish a society, on the one hand, and the willingness of the company as a legal entity, on the other hand. However, taking into account the importance of the Act of incorporation, it is natural that amending or supplementing it is allowed only by the highest body of the company. According to the Government, the actual implementation of the property law of inheritance could be obtained by adjusting article 30 paragraph 2. (1) of the law on limited liability companies, for the purposes of the registration of the party inherited social in the absence of the submission of documents amending the founding act and the decision of the general meeting of shareholders.
34. The public tender to the Court, the representative of the State registration Chamber argued that this problem is not regulated by the law on limited liability companies and the practical difficulties in registering variations within the company, especially when the constituent Associations Act did not anticipate the emergence of such changes.
C. assessment of the Court 1. General principles 35. Article 9 of the Constitution recognises the existence of private property ownership and intellectual material, which according to art. 46 of the Constitution, is ensured. Guaranteeing the right of ownership of the imposed constitutional principle laid down in article inadmisibilităţii of the expropriation of the person, except in the case of public utility, established by law, with due regard for the rule of a just and prior compensation.
36. In the same vein, according to article 127 of the Constitution, the State has taken under his protection and guaranteed the realization of property ownership in the forms required by the holder.
37. At the same time, protecting and guaranteeing the right to private property would not be full-fledged unless it would ensure the continuing quality of the successors of the owner of the former owner.
38. Considering that the right to inherit is a natural consequence of the right of ownership, article 46 paragraph 2. (6) of the Constitution provides that the right to inherit private property is guaranteed.

39. the court notice that, according to the civil code, inheritance rights shall be sent at the date any ope legis succession, by virtue of the legal effect of acceptance of it. The quality of the legal successor or executor is attested by the certificate of inheritance.
40. the Court noted that one of the forms of realization of private property is the formation of companies, which constitute an essential part of the economy of the State, based on a market economy. In civil law, one of the types of companies are limited liability companies.
41. the Court points out that the limited liability company is a legal entity formed by the will of one or several persons expressed in the founding act, whereby they agree to put certain items jointly to carry out entrepreneurial activities, to achieve and to share benefits society in which associations are not responding to its obligations, but supports its activity risk within the limits of the Party held.
2. Application of the principles in this question 42. In the present case, the Court observes that the heir of a shares, the share capital of a limited liability company may be associated, by posting this qualities at the State registration Chamber, just following the change of Constitution Act incurred in by the General Assembly.
43. the court notice that at the base of the establishment of any company is located beyond the members to carry out, under the law, a trade. But the will of the members establishing a company must occur in compliance with the law, i.e. the Act of incorporation of the company.
44. According to article 4. 12(3). (1) of the law on limited liability companies, and the act of incorporation is generic, designating both the constituent agreement (contract), and status. Pursuant to articles 17 and 49 para. (1) (a). the Act) of the law of incorporation may be amended only by decision of the general meeting of members.
45. the Court observes that the author of the referral contends that the attribution of this right exclusively to the General Assembly upon the property rights of successors or members of the society with limited liability.
46. In this connection, the court notice that the general meeting of shareholders shall represent the deliberative and decision-making of the company acting in the essential problems of society, such as the other organs of society called (Administrator, Board members of the company, the censors), exercising control over their activities, decide on the employment of their liability, amend the Act of incorporation of the company, etc. 47. Thus, considering the order of formation and powers at its disposal, only the general meeting of the company shall be entitled to amend and supplement the Act on establishment, including to adopt it in a new editorial board.
48. the Court concludes that it is impossible with the changes in the Act of incorporation to be operated by an authority or institution, in this case the State registration Chamber, as it would affect social readiness and, in general, the concept of the establishment of a company. However, only members of the General Assembly, as the highest organ of the society, is able to reflect precisely the will of members in the Act of incorporation.
49. In the light of those mentioned, the Court notes the lack of a causal link between the impugned provisions and article 46 paragraph 2. (6) of the Constitution. Or provisions to regulate just who challenged has the right to make changes in the Act of incorporation of the society with limited liability, and not how to record quality of associate in the State Register of legal persons.
50. In the context of the speței examined, the Court observes, however, that the right of property inheritance of social party may be affected through art. 30 of the law, according to which the social side is considered to be governed by the purchaser from the date of registration in the State Register of legal entities of the amendments to the constitutive laws relating to the disposal/acquisition of the social party.
51. Thus the Court finds that the acquisition and ownership of shares disposed of or acquired depend on changes in the sense given in the Act of incorporation.
52. the Court notes that, according to art. 42 para. (1) of the Act, the company's associate membership is acquired through participation in the formation or acquisition thereafter lodging of a shares.
53. the Court notes that, subsequent to the acquisition of shares the company is incorporated, is achieved by transmitting shares between live and death for the cause of (causa mortis).
54. the Court noted that the law on limited liability companies regulates the social alienation. Moreover, under art. 25 of the law, shares can be freely disposed of by the spouse, relatives, eat blueberries in a straight line without limit and the sideline up to the second degree inclusive, where the instrument of incorporation provides otherwise.
55. Thus the Court finds that, although, according to art. 25 para. (1) of the Act, an associate can freely dispose of its social side by relatives, without the need to respect the right of pre-emption of other members, to become the rightful owner of this part art. 30 paragraph 2. (1) imposing the obligation to carry out the amendments in the Constitution Act. In addition, these amendments shall be required to be operated, and the social situation obtaining in part the result of the succession.
56. In this respect, the court notice that, while art. 42 of the Act sets out to obtain the status of associate, including through acquisition, later the company is incorporated with limited liability, shares may not be conditional on registration of social party acquired or inherited in the State Register of legal entities of the amendments of the Act of incorporation of the company.
57. Accordingly, the Court concludes that the phrase "made in the instruments setting up" in paragraphs (1) and (2) of article 3. 30 of the law on limited liability companies violate the direct ownership of persons who acquired shares and prejudice to article 46 of the Constitution.

58. At the same time, bearing in mind that the formation and activity of the limited liability company is based on the will and mutual trust of the additional members, of the findings, the Court reveal where the quality of the purchaser of a new associate social odds may be refused by the associations. This refusal, however, should not affect the economic rights of the purchaser's social party, the latter being entitled to receive the equivalent in value of the shares. At the same time, the Court finds that there are no regulations to that effect.
59. Therefore, the Court will issue an address to Parliament, with a view to regulating the effects of acquiring through the succession of the right of ownership of the social party, assuming that the quality of the purchaser's social party associate may be refused by the associate.
For these reasons, pursuant to paragraph 1 of article 140. (2) of the Constitution and article 26 of the law on the Constitutional Court, articles 6, 62 61, lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. the plea of unconstitutionality admits partly raised by geographic location, Attorney Victor in file No. 3-771/16, pending the Court Center, mun. Chişinău.
2. It is hereby declared unconstitutional phrase "operated in the instruments setting up ' in article 30 (1) and (2) of law No. 135-XVI of 14 June 2007 concerning limited liability companies.
3. To recognize constitutional words "only" in art. 17 and "exclusively" in article 49 paragraph 3. (1) (a). the Act No.) 135-XVI of 14 June 2007 concerning limited liability companies.
4. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.