Pregledni rad
Material subkapitalization in French law of corporations
Ratko Brnabić
; Pravni fakultet Sveučilišta u Splitu
Sažetak
The issue of undercapitalization of companies of capital is discussed in French literature, but also in court practice. If the company founders furnish their company with insufficient capital, i.e. capital that is not adequate to the scope of the planned entrepreneurial undertaking, the company members could be liable to the company creditors. The topic of responsibility for undercapitalization is particularly discussed in regard of the standing point that the introduction of 1-euro SARL will result in application of rules on responsibility of the management (manager of the business operation), so that factually (even if only indirect) the principle of non-responsibility of members for the liabilities of a company is neglected. The company management is responsible for an adequate ratio of the company capital and the volume of the business operations. If the management fails to take care of this, there is a risk that creditors will appeal before court for indemnification of caused losses. Such a conclusion is disputed, since the justified question appears, whether the furnishing of a company is the duty of the company members and not the management. Based on prevailing opinions in French literature and the court practice, the manager of a certain business operation is responsible because he manages an undercapitalized company and undertakes business activities that are not in compliance with the financial possibilities. Review of the court practice in the sense of applicability of appeals for indemnification of losses caused to a company in cases of material undercapitalization shows that the French law doesn’t take a common standing point on the threshold of such material undercapitalization, i.e. factual preconditions for an individual case to define a material undercapitalization. The main objection against such an appeal is that creditors. Besides this legal aid have no other way to appeal based on general rules on management responsibility, nor can they appeal for indemnification of damages. On the other side, the possibility that a court can award a higher amount than the one appealed on account of a mistake in managing the company businesses than the manager is liable for, seems to be subject to criticism and is considered an overly and inadequate responsibility.
Ključne riječi
French law; corporations; subkapitalization; liabilities; protection of creditors
Hrčak ID:
100310
URI
Datum izdavanja:
15.4.2013.
Posjeta: 2.177 *