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Protection of creditors in the process of liquidation of a company
Moc, Jakub ; Josková, Lucie (advisor) ; Čech, Petr (referee)
in English The thesis deals with the protection of creditors during the liquidation of a company, under the new legislation, effective since 1st January 2014. Although the previous legislation was considered accurate and to a large extent has been adopted in the current regulation, there are some differences to the benefit and detriment of creditor protection, which I highlight in each chapter. The aim of my thesis is to analyze the most important elements of protecting creditors in the liquidation process and after its completion, gradually from the general, to those that provide protection to the creditors of the specific claims, such protection evaluate and highlight possible problems that can endanger the satisfaction of creditor or make it completely impossible. Outside the introduction and conclusion, this thesis consists of three logically consecutive chapters, viewed from the perspective of the protection of creditors. The initial chapter has essentially definitional character needed to determine the scope of my work and therefore is as brief as possible. The first chapter deals with the term creditor, as a concept, defining the group of persons, on whose protection I am focused in my thesis and with the concept of liquidation process as a term for the cancellation of a company without...
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A comparison of due managerial care of a member of governing body in the Czech Republic and a comparable duty of a member of governing body in Ireland
Pečinka, Martin ; Josková, Lucie (advisor) ; Čech, Petr (referee)
This paper deals with a comparison between the Czech duty of due managerial care of a member of governing body of limited company and the Irish non-fiduciary duty to exercise care, skill and diligence of a director of limited company (hereinafter also referred as "duty of care"). The paper aims to find out a possible way to improve legislation of the duty of due managerial care on the basis of comparison with the duty of care. The duty of care sets the ground for the comparison, therefore the paper deals first with the Irish legal status of the duty of care, which has been recently changed by the Companies Act 2014. Despite of the codification of the directors' duties, the core of interpretation and application of the duty of care still rests in judicial decisions. Nevertheless, the change of source and statutory wording of the duty means that the substance of Re City Equitable [1925] does not represent a good law anymore. The standard of care of Re City Equitable [1925] has been replaced by the minimal objective standard based on the British judgment Re D'Jan of London [1994]. The content of the duty of care is determined on the case by case basis, but in any event it consists of conclusions of the British judgment Re Barings [1999], which has been accepted by the Irish courts in restriction...
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Securities and book-entry securities - changes after recodification
Koláček, Petr ; Čech, Petr (advisor) ; Elek, Štefan (referee)
61 Abstract The purpose of this thesis is to analyse new legislation on securities and book- entry securities enacted during the recodification of private law. The main legislation moved from the Act no. 591/1992 Coll., On Securities, into the Act no. 89/2012 Coll., The Civil Code. This thesis is divided into five chapters. The first chapter deals with the general definition of the concept of securities and booked-entry securities. It describes the definition of security that has been adopted from the Swiss Code of Obligations and describes the new concept of book-entry securities, which are now a substitute to securities and a separate legal institute. The second chapter briefly describes the functions of the securities. The third chapter describes forms of securities that are crucial for determination of methods of transfer of the securities. It also discusses enactment of legal presumptions of the form of the security that are used to determine form of securities in the case the form of the security is not entirely clear. Finally, this chapter deals with the question, whether the forms of book-entry securities are no longer distinguished. The fourth chapter analyses the transfer of ownership of the securities according to their various forms and discusses the conditions under which the securities in each...
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A legal person as a member of an elective body of a limited company
Borkovcová, Petra ; Čech, Petr (advisor) ; Eichlerová, Kateřina (referee)
130 A legal person as a member of an elective body of a limited company Abstract This thesis deals with one of the significant novelties in Czech company law adopted in connection with the recodification of private law, namely the general option to appoint a legal person as a member of a statutory, supervisory or another elective body of a limited company, i.e. limited liability company or joint stock company. The thesis presents the topic in a broader context and it is aimed to provide the reader with a basic idea of what the benefits and the risks are, which this concept brings into Czech law, and how usable it is in practice. For this purpose, an overview is given of how foreign legal orders regulate the membership of legal persons in elective bodies of limited companies, the extent to which this concept is widespread (not only in Europe) and what the existing, both positive and negative, experience is. Particular attention is paid to the legislation in Great Britain, because in this country, the issue of membership of legal persons in elective bodies of limited companies is currently being subject to breakthrough (albeit not yet effective) legislative changes consisting in a general ban on appointment of a legal person as a member of an elective body of a limited company. The thesis is divided into four...
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Pledging a share in a business corporation
Pivoda, Tomáš ; Čech, Petr (advisor) ; Pelikán, Robert (referee)
Pledging a share in a business corporation In my master thesis I focus on pledging a share of shareholder a limited liability company, which is a relatively common legal disposition with the share. Master thesis is based on valid and effective legal regulation that brought a number of innovations. In some chapters there is also mentioned the historical development of the institute for better orientation of the readers. The thesis examines legal literature, legal periodicals as well as attempts to capture also the applicability of existing case law on the new legislation. The main contribution of this work is to provide an interpretation of the provisions of which so far there is little consensus in the legal community, as well as pointing on problems and risks that regulation brings, especially from the perspective of the pledgee. The thesis is divided into four chapters, each chapter focuses on a different area of pledging a share of shareholder a limited liability company. The first chapter defines general issues of pledge and define the subject of a lien and includes a brief introduction of the legal nature of the share. In the second chapter, the reader is introduced into the mode of the establishment and creation of a pledge to a share, assumptions of its pledgebility and the process of...
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Agency Contract
Leitmančík, Ondřej ; Patěk, Daniel (advisor) ; Čech, Petr (referee)
This thesis discusses the legal regulation of an agency contract according to the Act no. 89/2012 Coll., The Civil Code, with the focus on the general description of the terms and institutes of agency contract. The work is divided into five chapters, the main objective of this paper is to describe the basic definition of an agency contract. The first chapter described and analyzed the basic characteristics of an agency contract, especially the agent himself, the long-term perception of the agency contract, the definition of the term certain types of transactions, and we have discussed a exclusive and non-exclusive agency contract. The second chapter is focused on the rights and obligations of the parties of the agency contract with a closer focus on the issue of commissions. In chapters 3, 4 and 5, we discussed termination of agency contract, anticompetitive clause and we also mentioned Švarcsystem. Some chapters are for clarity divided into subchapters and the names of the subchapters signify the topic that subchapter is dedicated to. The thesis also refers to the commentary literature and case law relating to legal framework contained in the Act no. 513/1991 Coll., The Commercial Code. In the end the conclusion is drawn about whether the stated objectives have been achieved. Title: Agency Contract...
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Protection of business competition - Abuse of dominant position
Kramářová, Monika ; Horáček, Vít (advisor) ; Čech, Petr (referee)
Protection of business competition - Abuse of dominant position The main objective of this thesis is a comprehensive analysis of the term "abuse." In a wider complex, thesis deals with a question of the present aim and prevailing method of application of provision 102 TFEU in order to find out whether and if yes, to what extent is current approach compatible with the modernization process of the application of article 102 TFEU declared by the Commission. Thesis deals with a question whether decisional practise is capable to react on a challenge made by so called new economy sector. Thesis consists of five substantial chapters. The first chapter sums up historical development of the 102 prohibition in Europe and USA law with a particular focus on the objective behind the text of the relevant provisions and decisions and its changes in time. The second chapter zooms to modernization process in relation to Art. 102. The central chapter analyses in detail the features of the general definition of an abuse arising from the decision of Hoffmann-La Roche, namely: i) a special responsibility of the undertaking; ii) the objective nature of the abuse and the effect of conduct on competition; iii) competition on the merits. An analysis of the concept of anticompetitive foreclosure follows. The concept of...
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Agency Contract
Leitmančík, Ondřej ; Patěk, Daniel (advisor) ; Čech, Petr (referee)
This thesis discusses the legal regulation of an agency contract according to the Act no. 89/2012 Coll., The Civil Code, with the focus on the comparison of the changes between the legislative frame of the agency contract contained in the Act no. 513/1991 Coll., The Commercial Code, and the legislative frame of the agency contract contained in the Act no. 89/2012 Coll., The Civil Code. Although the main focus of the thesis lies in description and analysis of the changes, the thesis also examines the practical use of the agency contract, when discussing so called švarcsystém among other things. The aim of the thesis is to describe the changes made by Law no. 89/2012 Coll., The Civil Code, which were explained by Explanatory Memorandum to the Act. No. 89/2012 Coll., The Civil Code, and then highlight those changes that this explanatory memorandum did not mention. The thesis is divided into five chapters, whereas the first four chapters describe the changes and any problems that may arise. The final, fifth, chapter labeled as "Additional information relating to the agency contract", differs from the other chapters in that it does not describe the changes in the legal framework but is devoted to practical problems of the use of the agency contract, which according to the author of this work should also...
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Statutory liability of members and other persons for debts of business corporations (including supranational corporations)
Trojan, Ivo ; Čech, Petr (advisor) ; Eichlerová, Kateřina (referee)
86 Abstract Statutory liability of members and other persons for debts of business corporations (including supranational corporations) The thesis aims to introduce the economic rationale behind the legal concept of limited liability, including the risks for creditors attached thereto, and to analyse the legal instruments designed to remedy the impacts of its misuse or abuse. Accordingly, this thesis attempts to point to the shortcomings of the current legal framework and to offer a solution thereto. For this purpose the author uses the traditional methods of legal interpretation and draws upon the laws of the United Kingdom, which inspired the authors of the Czech Corporations Act 2012 in many respects. After the opening chapter, which introduces the current legal framework for limited liability of shareholders and defines legal relations of company's agents towards third persons, the historic development of limited liability in the United Kingdom will be outlined in the second chapter. The introduction of limited liability in 19th Century was accompanied by intense society-wide debate, the findings of which will help to understand the limited liability in its wider context and will form the ground for the following assessment of its benefits and risks for creditors of limited liability companies. Third...
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The doctrine of piercing the veil and its application in Czech corporate law
Piačková, Mária ; Čech, Petr (advisor) ; Pelikán, Robert (referee)
The doctrine of piercing the veil and its application in Czech corporate law The theses concerns with the doctrine of piercing the veil and its application in Czech corporate law. Firstly, the crucial term of the separateness of assets is described as a characteristic feature of a legal subject under Czech law, followed with explanation of the concept of the shareholders' guarantee in the Czech law based on the fact that all companies are legal persons with the asset separateness, even though their function is similar to the partnership. The doctrine of piercing the veil was developed by judiciary decisions dealing with different situations and circumstances, under which the legal separateness of a corporation and separateness of assets are misused by shareholders and creditors (voluntary or involuntary) are harmed. The main question asked is whether in specific cases of "corporate form abuse" law can find a way to reimburse directly the harmed creditors or the company. Based on the description of development of judiciary in the United States, Great Britain and Germany and its conclusions, specific factors for application the doctrine were researched, such as alter ego, instrumentality, undercapitalization, agency, commingling of funds etc. These factors are used differently by courts and can be analyzed...
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