Original scientific paper
Comparative Analysis of an Extra-Judicial Contentious Proceedings in the Companies Act and Ancillary Proposals de lege ferenda
Petar Miladin
; Faculty of Law, University of Zagreb, Croatia
Abstract
The work critically examines the application of the Article 366 of the Companies Act de lege lata and consequently provides proposals de lege ferenda. The challenge claim to find the decision of the general meeting of the company void pursuant to the Article 366 of the Companies Act is not a fortunate solution if the whole issue is reduced to the fact that the new shares are not issued for a proportionate amount. If one considers that in such situations the shareholder structure is usually not undermined, apart from the mere subjective position of the shareholders assets, the issue of a proportionate amount for which the shares are issued should be resolved de lege ferenda in extra-judicial contentious proceedings instead through regular civil proceedings. Other substantive and procedural violations of the general meeting’s decisions on the increase of the company’s share capital against contributions with the exclusion of the shareholder’s preemptive right should retain de lege ferenda protection pursuant to the Article 360 Para. 1 of the Companies Act. In that sense Article 532, Article 562, Article 550.k of the Companies Act, which are also critically examined de lege lata and for which proposals de lege ferenda are given since they are functionally relative to Article 366 of the Companies Act, should be amended. Affi nity is especially present between the increase of the share capital against contribution of an enterprise to the company and between a merger, amalgamation and separation with the takeover of a company. In all of these cases, explicitly or factually excluded issuer’s shareholders - in regard to their preemptive right of subscription of new shares - are exposed to the risk of overvaluing the share in the name of which the takeover company increases its own share capital in order to undertake this statutory change, that is to acquire the other company’s enterprise or a plant. The existing normative shortfalls are recognized and consequently it is concluded that they should be removed de lege ferenda while simultaneously solutions are provided to that effect. Commission for the Commercial Law of the German Bar Association (DAV) created a proposal for the amendment of the German AktG which is also instructive to the Croatian law since German law served as a role model, not only during the making of the fi rst text of the Companies Act, but also during subsequent amendments. This proposal along with the following reactions of the German legal literature present a good ground for the discussion on the issues that in that sense also ail the Croatian law de lege lata.
Keywords
preemption right; exclusion of preemption right; voidable decisions of the general meeting; merger; extra-judicial contentious proceeding
Hrčak ID:
93126
URI
Publication date:
3.5.2012.
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