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Setoff without mutuality (compensation ex personae tertiii) in business relations
Stratilová, Veronika ; Čech, Petr (advisor) ; Pelikán, Robert (referee)
Set-off without mutuality (compensation ex personae tertii) in business relations Abstract The aim of this thesis is to answer the question whether the statute contains exhaustive or non-exhaustive list of cases in which a person may set-off without mutuality. Accordingly, whether it is possible to negotiate the set-off of claims where mutuality cannot be found. I have done so by analysing selected cases of set-off without mutuality. I have described the cases expressly embodied in the statute, as well as those on which the Supreme Court of the Czech Republic has already ruled. The objective was to uncover the meaning and purpose common to all these exceptions and, with this knowledge, to establish a method that will lead to an answer to the question of whether the set-off without mutuality can be counted in a particular case. The first section of this thesis explains what is meant by the creditor's entitlement to demand satisfaction of his/her own claim. I came to the conclusion that this category includes not only mature claims, but also a case when the time of performance is determined in favour of the creditor [according to the section 1962 (3) of Act No. 89/2012 Sb., the Civil Code]. I have used this conclusion as a reasoning throughout this thesis. In the following section, I categorized the ways of...
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Trade customs
Čížek, Kristián ; Pelikán, Robert (advisor) ; Tomášek, Petr (referee)
Trade customs Abstract The subject of this thesis was to find out whether some trade customs have emerged between the participants of business relations in the Czech Republic since the advent of the market economy. If the following hypothesis is confirmed, the aim of this thesis was to identify specific trade customs and its effects on the legal relations of the participants in business relations. Thus, the author of this thesis had the ambition to make a comprehensive interpretation of trade customs, which he divided into three main parts. The first part of this thesis is mainly devoted to the definition and application of trade customs according to the current and effective legislation, legal doctrine and case law, also taking into account some of the contractual practice of participants of business relations. The aim of this part of the thesis was thus to determine what is meant by trade customs in the legal sense as opposed to business practice in the broader sense and what effects trade customs have in legal relations. The second part of the thesis builds on the previous interpretation and elaborates on the existing case law on trade customs. In fact, trade customs are most easily understood by the general and professional public through the work of the courts, which find both the law relating to trade...
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Influential person
Vohralík, Marek ; Pelikán, Robert (advisor) ; Černá, Stanislava (referee)
Influential person Abstract The thesis Influential Person deals with the meaning of the rule contained in the regulation of business groups under the Companies Act, although the author does not consider this systematic classification to be correct. The thesis begins by discussing the meaning of the rule from the perspective of protecting the very legal personality of the business corporation, since, as he shows, the fulfillment of the act of influencing constitutes a failure of the very elementary rules on which the construction of the legal personality of the business corporation is built on. It also points to new phenomena in the law of business corporations that are closely related to the law of business groups, such as rational apathy or single-member corporations. Indeed, these phenomena are closely related to the law of business groups and, as in the case of affectation, have the effect of weakening the business corporation as a separate legal entity. The second part of the thesis is devoted to the sources of the regulation of influence. Here the author discusses the most important continental approaches, be it German concern law, the French concept of Rosenblum or partial adjustments within the framework of community law, but also Anglo-American doctrine. All of these have influenced domestic law to...
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SPAC - Special Purpose Acquisition Company
Rosenthaler, Jan ; Pelikán, Robert (advisor) ; Flídr, Jan (referee)
SPAC - Special Purpose Acquisition Company Abstract Special Purpose Acqusition Company (SPAC) is an alternative method of stock exchange entry which is used primarily in the USA but has also appeared in the Czech Republic. It is a company established for the sole purpose of listing on the stock exchange and then merging with a selected target company that wishes to go public in a way other than through an IPO. The merger will provide the target company with funds from investors in addition to the listing. They have already invested in the SPAC but can withdraw from the investment if they disagree with the selection of the target company. The thesis deals with basic introduction of the SPAC and determination of its specifics such as the position of the sponsors, who select the target company. Subsequently, the whole process of the SPAC existence is described. Emphasis is placed on its formation, listing on the stock exchange, raising funds from investors and selecting a target company. A special section is then devoted to the target companies' merger forms, of which there are several from a legal perspective. The most widespread is the reverse merger, which is not known in the Czech legal system, so it was necessary to pay special attention to it within the work. There are many reasons for using SPACs from...
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The legal status of CEOs in the corporate governance of Czech and foreign joint stock companies
Ryšina, Petr ; Hurychová, Klára (advisor) ; Pelikán, Robert (referee)
The Legal Status of CEOs in the Corporate Governance of Czech and Foreign Joint Stock Companies Abstract CEOs play a crucial role in corporate governance, and understanding their legal status is fundamental to board organisation practices. This thesis aims to map the question of the legal status of CEOs, with a focus on regulatory approaches to CEOs and chairpersons of the board in different regions. The research established two main approaches to regulating CEO's legal status. On the one hand, the approach of Anglo-American countries is presented in this thesis by two main representatives - the UK and the USA. The common board organisational model is a unitary board model for which it is typical to combine management and supervisory powers in the board of directors. This is also reflected in the legal status of the CEO, as one of the main issues addressed is the CEO and chairperson duality and its consequences on corporate governance. On the other hand, the different approach taken by the countries in Continental Europe is analysed. Germany and Austria are introduced as countries known for a compulsory two-tier board model. In contrast to the Anglo-American world, the position of the CEO is not embedded in the countries of Continental Europe. The problem of CEO and chairperson duality is not present...
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Usury and Lesion in Business Law Realtions
Šejko, Jaroslav ; Černá, Stanislava (advisor) ; Pelikán, Robert (referee)
Usury and Lesion in Business Law Realtions Abstract The main objective of the thesis is to investigate the issue of usury and lesion in business law realtions and to analyse the possibilities that entrepreneurs have to protect themselves from these undesirable phenomena by means of legal institutes of private law. Particular emphasis is placed on the relationship between the general private law remedies, which serve to correct the substantive incorrectness of legal actions, and the special provisions that exclude protection of entrepreneurs against usury and lesion. In the course of the thesis we will focus on the evaluation and analysis of these institutes and their possible impact on business entities in business dealings, including a comparison with foreign legislation (mainly German and Austrian) and practical recommendations. In its examination, the thesis is progressively divided into several subparts, with the first topic addressed being the protection of the weaker party, the definition of the situation and the reasons for the protection of the weaker party, including the ideological background. The emphasis in this chapter is on the entrepreneur as the weaker party and the possible abuse of the stronger position. In the second and third parts, I focus on the definition of the concepts of usury and...
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Liability for failure to make a contract in business relations
Houžvičková, Adéla ; Čech, Petr (advisor) ; Pelikán, Robert (referee)
This thesis deals with one of the elements of the pre-contractual liability, which has been incorporated into the Civil Code under its Section 1729. Specifically, it concerns liability for unfairness, which consists in the deceptive inducement of a reasonable expectation of the conclusion of a contract and the subsequent termination of negotiation without the party having just cause. The subject of this thesis will also be an analysis of whether and how the mutual rights and obligations in the pre-contractual relationship will be modified if one of the contracting parties is an entrepreneur. Within the first part of my thesis, I subject the legal norm and its subparts (as I appoint them bellow) to a detailed analysis. Firstly, I analyse the prerequisites for applicability of the legal norm (i.e. the hypothesis of the legal norm), then the unlawful act itself, its nature and its manifestations (i.e. the disposition of the legal norm) and, lastly, the negative consequences that may eventually arise if one of the parties acts unlawfully. Crucial part of my thesis is constituted by chapters 3 - 6, in which I deal with the individual parts of the structure of the legal norm and then evaluate the general conclusions in terms of their applicability within the business environment. Within the 3rd chapter I...
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Insolvency of a Subsidiary Corporation and its Group Consequences
Smetanová, Eva ; Černá, Stanislava (advisor) ; Pelikán, Robert (referee)
Insolvency of a Subsidiary Corporation and its Group Consequences Abstract The thesis deals with insolvency of a subsidiary corporation and its group consequences. The thesis focuses on description and analysis of consequences of subsidiary's insolvency putting emphasis on parent company and the way in which creditors of a subsidiary can protect their claims within the Czech corporation and insolvency law. The keynote of the thesis is the fact that the economic reality of operation of a corporate group collide with the separate entity principle and the doctrine of limited liability. First the thesis analyses the ways how the parent company exerts influence over the subsidiary, because on its relation to the subsidiary depend the consequences concerning the responsibility for the insolvency of the subsidiary. Then the concept of de facto directors and shadow directors is explained. This concept is based on the real economic direction of the corporation, so the creditors could reach the assets of parent company by this concept without using the ultimate means as the doctrine of piercing the corporate veil. Finally, the thesis describes particular institutes of Czech corporation and insolvency law that provides for consequences that the insolvency of the subsidiary could cause in the sphere of the parent...
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Non-competition clause in M&A transactions from the perspective of Competition Law
Pavlík, Filip ; Patěk, Daniel (advisor) ; Pelikán, Robert (referee)
The presented thesis with a title "Non-competition clauses in M&A transactions from the perspective of Competition Law" aims to comprehensively analyse the question of conclusion of non-competition clauses with emphasis on the context of M&A transactions and the reasons for their conclusion. The main contribution of this thesis is to provide a comprehensive overview of the conditions of validity of non-competition clauses when these are observed, it is possible to consider the non-competition clause as agreed between the parties of the relevant M&A transaction as justified and proportionate, with a minimum risk of such clause being revoked. In the first chapter, I am dealing with the concept of M&A transactions, individual types of M&A transactions and their division. At the end of this chapter, the importance of the non- competition clauses is outlined with reasons why they are concluded within M&A transactions. In the second chapter, I have focused on the general characteristics of competition and prohibition of competition. This chapter also deals with the non-competition clauses themselves in M&A transactions and the adjustment of these clauses in accordance with the Commission Notice on restrictions directly related and necessary to concentrations (2005/C 56/03). The third chapter deals with...
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Insolvency delicts of business corporation's governing body members after major amendment to the Business Corporations Act
Prošek, Jan ; Čech, Petr (advisor) ; Pelikán, Robert (referee)
1 Insolvency torts of members of the statutory body of a business corporation after a major amendment to the Commercial Corporations Act Abstract This work, Insolvency torts of members of the statutory body of a business corporation after a major amendment to the law on business corporations, focuses first on the institutes of care of good stewardship and business judgment, which are the key basis for the application of penalties for insolvency torts. Furthermore, this work discusses the issue of insolvency torts and their penalties before the major amendment to the Business Corporations Act and their adjustment after this amendment. The aim of the thesis is to introduce the reader to the issue of insolvency torts and their penalties, then to evaluate both of these adjustments and compare their most fundamental changes. In this context, the work also includes the elaboration of the most relevant case law to date, which will be strongly reflected in future decisions on the application of penalties for insolvency torts, as amended, especially in matters of due diligence and business judgment. At the same time, this work contains the elaboration of the most fundamental questions that often arose during the application of penalties for insolvency torts before the amendment and whether and possibly what solution...
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