The central place of the doctoral thesis focuses on the protection of creditors' interests through the headline institution of corporate restitution. The addressed issue is inextricably linked to the rule on prohibited distribution, which is why the latter is initially analysed (because of significant differences) separately for PLC (German AG) and Ltd. (German GmbH). This is followed by the examination of legal situations that constitute a violation of the rule on prohibited distribution but are regulated as special institutes due to their specificity (for example, prohibition of the acquisition of own shares, the prohibition on financial assistance). Because of the current relevance of this topic, which has been promoted by numerous cases in the business practice, several parts of this dissertation pay a special attention to the loans to shareholders and the insurance provided by the company for their debts. In this regard, it is particularly important to distinguish between the persons that are subject to the rule on prohibited distribution and, on the other hand, the persons from whom the company can claim the restitution of prohibited distribution.
One of the key chapters discusses legal consequences of the violation of the rule on prohibited distribution. In fact, the conclusions of this chapter have rejected the thesis that a legal transaction, which represents the grounds for the prohibited distribution, is null and void. However, this also does not mean that the legal transaction is valid and that the person benefiting from it should merely compensate the company for the deprivation. The prohibited distribution may only be returned in this manner if the company agrees. The company always has an option to reclaim anything given in kind, which means that the legal consequences are almost the same as if the legal transaction was null and void. Next, the dissertation explains the stronger legal nature of corporate restitution in relation to the claims under the law of obligations, as well as the reasons why, in terms of its contents, this claim is a restitution and not enrichment.
A special chapter presents the rule on prohibited distribution in the context of the European company law. A considerable amount of attention is also paid to the study of legal positions in enterprise agreements, de facto concern and qualified de facto concern, the study of which is again divided, depending on whether the subsidiary is legally organised as PLC or Ltd. The analysis of the law of concerns is focused on various legal mechanisms that are made available to the creditors of the subsidiary by the law, compared to the independent company in which the rule on prohibited distribution applies to an unlimited extent. The notion of a qualified de facto concern is inextricably linked to the institution of the disregard of legal personality, or, in Germany, the liability for deliberately causing damage to the company by the conduct that is contrary to honest practices in commercial matters. The dissertation addresses these positions in detail, especially from the perspective of the internal and external liability of shareholders for the loss suffered by the company, and indirectly by its creditors, as a result of their inadmissible conduct in the company.
The last two theses are confirmed in chapters dealing with the assertion of corporate restitution and its application after the company was already cancelled from the court register as a result of completed proceedings, which were carried out with the aim of its dissolution sensu stricto. By referring to the principle of equality before the law, it is made clear that the creditors of Ltd. should have the same level of entitlement to claim corporate restitution as in the PLC. Likewise, the cancellation of a company from the court register is not a reason that would prevent the creditors from asserting this claim, even after the company was cancelled following bankruptcy proceedings (which concluded without the distribution to the creditors) or after the cancellation from the register without liquidation.
|
