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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 The standard of care of Re City Equitable [1925] has been replaced by the minimal objective standard based on the British judgment Re D'Jan of London [1994].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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Disqualification of a governing body member and other persons from their positions in a business corporation
Lála, Daniel ; Čech, Petr (advisor) ; Liška, Petr (referee)
Disqualification of a governing body member and other persons from their positions in a business corporation Abstract The master thesis analyses the regulation of disqualification of directors and other persons from the management of a business corporation. The purpose of this study is to introduce in detail the grounds for disqualification and to define persons who might be disqualified based on each particular ground, moreover, to describe a scale of effects of a disqualification order and to deal with the consequences of acting while being disqualified. The attention is also drawn to several interpretative problems, which are construed. Additionally, the thesis reflects the regulation of the English Company Directors Disqualification Act 1986 and the relevant English case-law. Except for the introductory part and the conclusion, the thesis is divided into six chapters. The first chapter looks briefly at the disqualification as such and its purpose. Additionally, it is generally described, who might be disqualified. Special attention is paid to the person that is in a similar position as a director and to the influential and controlling persons. The second and the third chapters deal with particular grounds for disqualification. Firstly, it is focused on the disqualification which is pre-conditioned by...
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The duty of due managerial care and diligence of the member of en elective body of a limited company and the consequences of its breach
Šubertová, Karolina ; Černá, Stanislava (advisor) ; Zahradníčková, Marie (referee)
The purpose of this thesis is to compare the standard of due care in contemporary legislation as well as in the new upcoming legislation which should become effective as of 1 January 2014. Furthermore, the thesis is focused on consequences of breach of the standard of due care by persons in position of members of elected bodies of capital business companies and / or business corporations. The thesis is composed of six chapters. Chapter One is introductory and deals with history of the standard of due care in the Czech legislation from the period of the General Civil Code to the recodification of civil law and commercial law represented by two crucial statutes - the new Civil Code and the Business Corporations Act. Chapter Two deals with contemporary valid and effective legislation concerned with the standard of due care and its main components. In Chapter Three I tried to emphasize the changes which we will experience in the new legislation. Especially, I mean the newly introduced business judgment rule which was inspired and implemented to the Czech legislation on the basis of modern foreign legislations - US and Germany. Chapter Four presents selection of case law of the Supreme Court of the Czech Republic which repeatedly commented on the standard of due care in practice and its related aspects...
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Due managerial care and diligence and liability for their breach in a limited company
Sosna, Jakub ; Čech, Petr (advisor) ; Pelikán, Robert (referee)
The requirement to perform duties with reasonable care and loyalty under the threat of liability is a basic standard every corporate director must meet. The aim of this thesis is to analyse the content of this standard and liability within the context of new re-codification of Czech private law. In doing so, the author focuses on interpretative possibilities and problems that may occur. Chapter One is an attempt to connect the main topic with a broader context of law and economics knowledge in order to define leading requirements for company regulations. Chapter Two consists of three parts. Part One briefly describes content of fiduciary duties. Part Two refers to duty of loyalty. The author aims to answer a traditional task to whom the corporate directors serve. The author argues for so-called enlightened shareholder value model. This model requires director to promote the success of the company for the benefit of its shareholders as a whole. In doing so, they need to take into account the company's stakeholders' interests and the impact of the company's operations on the community and the environment. Part Three examines to what extend company directors have to exercise general knowledge, skills and experience that they are expected to have. Chapter Three investigates a task of director's...
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Disqualification of governing body members (and other persons) from their positions in a business corporation
Vítek, Dominik ; Čech, Petr (advisor) ; Pelikán, Robert (referee)
1 Abstract: Disqualification of governing body members (and other persons) from their positions in a business corporation As of 1 January 2014 a new act no. 90/2012 Coll., Business Corporations Act, has been effective in the Czech Republic. Among the other new legal instruments, the Act has incorporated a regulation of disqualification of governing body members (and other persons) from their positions in a business corporation. This master thesis aims at determination of particular grounds for the disqualification and impacts of its application. Further, persons who may be disqualified under the pursuant to the particular grounds are defined in the thesis. The aim of the thesis is to find a general rules governing the disqualification and to determine limits of its application. The thesis also defines other persons (positions) which the disqualified person will not be allowed to hold and perform due to the court's decision. The author uses descriptive and analytical methods to interpret the legal regulation, which is joined with comparison of Czech and British legislation as the British legislation was one of the main sources. The Act is interpreted based on grammatical, logical, teleological, systematic, and partially historical interpretation methods. Within the comparison the author focuses on the...
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Due managerial care and diligence as a criterion for the determination of liability (a legal and comparative analysis)
Krtoušová, Lucie ; Beran, Karel (advisor) ; Kühn, Zdeněk (referee)
Diploma thesis - abstract Due managerial care and diligence as a criterion for the determination of liability (a legal and comparative analysis) Lucie Krtoušová The purpose of this thesis is to critically analyse the interpretation of the concept of the due managerial care and diligence and consider the requirements that a director must comply with. The method used in this paper is the comparative analysis. As a basis of the comparative analysis it is chosen the British concept of fiduciary duties and duty of care, skill and diligence which is compared with the Czech concept of the care of a prudent manager. The thesis is composed of five chapters, each of them dealing with different aspects of the concept of the due managerial care and diligence. Chapter One is introductory and defines basic terminology used in the thesis such as the director, the care of a prudent manager, the duty of loyalty, fiduciary duties and the duty of care, skill and diligence. Chapter Two examines the British concept of fiduciary duties. The chapter consists of five parts. Part One focuses on introduction into the system of general duties of directors. Part Two explains the fiduciary position of a director. Part Three and Four address the two aspects of the duty of loyalty, i.e. the duty to act in the interest of the company and...
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Liability of members of governing bodies of juristic persons
Novotná Krtoušová, Lucie ; Beran, Karel (advisor) ; Kühn, Zdeněk (referee) ; Havel, Bohumil (referee)
Liability of members of governing bodies of juristic persons Mgr. Lucie Novotná Krtoušová Abstract The aim of the presented doctoral thesis entitled "Theoretical Concept of Liability of Members of the Governing Bodies of Juristic Persons" is to determine what requirements can be placed on natural persons who act as members of the governing bodies of juristic persons, and to specify the substance of due managerial care as a legal basis for potential liability. The Civil Code lays down the duty of a governing body member to act with due managerial care in the discharge of his/her office in its general part; the relevant provisions thus apply to members of the governing bodies of all juristic persons under both private and public law, provided that this is compatible with their legal nature. Compliance with the duty of due managerial care - in cases where the governing body members act as representatives of the juristic person - is the decisive criterion for determining whether or not they will be liable to the juristic person for any damage caused in the discharge of their office. However, it is questionable whether this is a case of fault-based liability for breach of a legal duty or strict liability for breach of a contractual obligation. The question of whether we will conceive liability of members of...
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Private law consequences of violation of the duty to act with the diligence of a professional manager of a member of an elected body of a capital company
Haluzíková, Veronika ; Josková, Lucie (advisor) ; Tomášek, Petr (referee)
Private law consequences of violation of the duty to act with the diligence of a professional manager of a member of an elected body of a capital company This thesis deals with the private law consequences of violation of the duty to act with the diligence of a professional manager of a member of an elected body of a capital company. Considering the big extent of all the existing private law consequences, I have chosen to focus on only two selected ones, which are the statutory guarantee of a member of an elected body in the extent of not compensated damage that this member has caused to a company and the duty to reimburse any unfair advantage gained in connection with violation of the duty to act with the diligence of a professional manager. The thesis is divided into three main parts. First part deals briefly with defining the duty to act with the diligence of a professional manager. There are examined the two main parts of this duty, which are the duty of loyalty and the duty of care. The second part of the thesis focuses on the first selected private law consequence which is the statutory guarantee of a member of an elected body, regulated in the civil code. There are analysed the main conditions for the creation of the statutory guarantee and the relation between them. Attention is also given...
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Liability of members of governing bodies of juristic persons
Novotná Krtoušová, Lucie ; Tryzna, Jan (referee)
Liability of members of governing bodies of juristic persons Mgr. Lucie Novotná Krtoušová Abstract The aim of the presented doctoral thesis entitled "Theoretical Concept of Liability of Members of the Governing Bodies of Juristic Persons" is to determine what requirements can be placed on natural persons who act as members of the governing bodies of juristic persons, and to specify the substance of due managerial care as a legal basis for potential liability. The Civil Code lays down the duty of a governing body member to act with due managerial care in the discharge of his/her office in its general part; the relevant provisions thus apply to members of the governing bodies of all juristic persons under both private and public law, provided that this is compatible with their legal nature. Compliance with the duty of due managerial care - in cases where the governing body members act as representatives of the juristic person - is the decisive criterion for determining whether or not they will be liable to the juristic person for any damage caused in the discharge of their office. However, it is questionable whether this is a case of fault-based liability for breach of a legal duty or strict liability for breach of a contractual obligation. The question of whether we will conceive liability of members of...
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Liability of members of governing bodies of juristic persons
Novotná Krtoušová, Lucie ; Tryzna, Jan (referee)
Liability of members of governing bodies of juristic persons Mgr. Lucie Novotná Krtoušová Abstract The aim of the presented doctoral thesis entitled "Theoretical Concept of Liability of Members of the Governing Bodies of Juristic Persons" is to determine what requirements can be placed on natural persons who act as members of the governing bodies of juristic persons, and to specify the substance of due managerial care as a legal basis for potential liability. The Civil Code lays down the duty of a governing body member to act with due managerial care in the discharge of his/her office in its general part; the relevant provisions thus apply to members of the governing bodies of all juristic persons under both private and public law, provided that this is compatible with their legal nature. Compliance with the duty of due managerial care - in cases where the governing body members act as representatives of the juristic person - is the decisive criterion for determining whether or not they will be liable to the juristic person for any damage caused in the discharge of their office. However, it is questionable whether this is a case of fault-based liability for breach of a legal duty or strict liability for breach of a contractual obligation. The question of whether we will conceive liability of members of...
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