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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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Comparison of duty of loyalty of a member of governing body of a company and duty of loyalty of a company member
Hubáček, Tomáš ; Josková, Lucie (advisor) ; Tomášek, Petr (referee)
The Duty of Loyalty of a Director of a Company and the Duty of Loyalty of a Member of a Company in Their Mutual Comparison Abstract According to the valid legislation, both the member of a company and the director of a company are subject to the duty of loyalty. The duty of loyalty has different content in relation to these persons and affects them with different intensity. The aim of this thesis is to compare selected aspects of the duty of loyalty of the member of company and the director of company. The first part presents initial doctrinal and judicial evolution of the duty of loyalty of the member of company and the director of company in the legal order of the Czech Republic. Furthermore, the essence (creative elements) of the duty of loyalty of mentioned persons is discussed. In this context, legal doctrine concludes that the essence of loyalty of the member of company and the director lies, amongst other matters, in contract. However, each of these persons has a different obligation, which is associated with different rights and duties of the relevant members of company's bodies. The aim of the first part is to develop the issue, which I consider crucial for understanding arguments and conclusions presented in the thesis. In the second part, I try to identify the interest which the member of company...
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Duty of care, skill and dilligence in Czech court case law
Klusáková, Barbora ; Eichlerová, Kateřina (advisor) ; Patěk, Daniel (referee)
1 Abstract The purpose of the diploma thesis "Duty of care, skill and dilligence in Czech court case law" is to analyze the case law of the Czech courts with regard to the legal regulation of the institution "duty of care" and to the opinions of the legal doctrine. The thesis consists of three main chapters. The first chapter deals with the theoretical and historical bases of the care of a proper manager, it encounters especially the issues of corporate governance and the Roman and Czech historical development of the term. The second chapter is focused on the current concept of proper managerial care and its partial aspects. The argumentation of the court with regard to the conclusions of the legal doctrine is analyzed and criticized in more detail. The last chapter presents the institute of the rule of business judgment, corrective standard of care. Its principles and conclusions of the court are examined in more detail. The analysis showed that the case-law conclusions of the Supreme Court of the Czech Republic are applicable even after changes in the legal framework within the recodification of private law, albeit with minor exceptions. In particular, the case law of the Criminal Senate and some of its conclusions are criticized. Nevertheless, it can be summarized that we can rely on the interpretation...
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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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Criminal liability for breach of the duty of due managerial care
Bárta, Petr ; Gřivna, Tomáš (advisor) ; Bohuslav, Lukáš (referee)
IN ENGLISH Criminal liability for breach of the duty of due managerial care The aim of this thesis is to analyze the duty of due managerial care and its attributes for the members of the statutory bodies of the capital companies including the rule of entrepreneurial judgment, the instructions of the General Meeting, the delegation of powers of the statutory body of entrepreneurial judgment and the criminal law aspects of the violation of the care of a goodman. The diploma thesis consists of four chapters. The first chapter briefly describes the basic issues of capital companies. The second chapter deals with the duty of due managerial care of the statutory bodies of capital companies and its attributes, emphasizing the changes brought about by the recodification of private law. First, the duty of loyalty is analyzed, as one of the basic stones of duty of care of a good manager, then attention is paid to the expected care and the approach of its definition. The third chapter deals with general parts of criminal law, which first deals with the possibility of using criminal law, and the attention is then paid to the subjective side and unlawful circumstances. The circumstance of exclusion of illegality is highlighted by a mistake, especially in the context of expert advice, by its influence on...
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The duty of due managerial care of a member of governing bodies of limited companies in comparison with the British legal regulation
Procházka, Tomáš ; Černá, Stanislava (advisor) ; Josková, Lucie (referee)
This diploma thesis deals with the regulation of the duty of due managerial care of members of a governing body of a limited company. The aim is to evaluate Czech national law with respect to the relevant British law rules. Another objective is to propose de lege ferenda amendments to current state of law. The thesis is divided into three chapters The first chapter defines the duty of due managerial care and the content of duties imposed on members of a governing body of a company in Great Britain. Judicial decisions of both jurisdictions reveal that directors are not expected to have a knowledge possessed by a specialist. However, good general knowledge is required. Subsequently, the dual objective / subjective standard is introduced. Lord Hoffmann borrowed the test set by the Insolvency Act 1986 and stated that such a test should not just apply during insolvency. The second chapter is dedicated to fiduciary duties and the position of duty of loyalty within the scope of due managerial care. The aim is to present the subjective test covering acts exercised to promote the success of a company. The standard rests upon the idea that directors must exercise their discretion bona fide in what they consider, not what the court may consider, is in the interest of the company. Another field of interest is...
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The concept and content of due managerial care
Král, Richard ; Patěk, Daniel (advisor) ; Eichlerová, Kateřina (referee)
The subject matter of this Master's thesis is to describe and to analyze the legislation of the fiduciary duties as well as the related questions such as the business judgment rule and the request on the management decisions. The fiduciary duties represent the standard of acting which must be respected by the member of the elected body during the exercise of the managerial power. The business judgment rule, however, protects the members of the elected bodies from unjustified accusations of the violation of the standard of the acting while in the final consequence represents the protection of the authority to undertake the decisions. The request on the management decision represents an exception from the common rule, solely entrusting the management of the business into the hands of the statutory body. The main aim of this thesis is to describe and to analyze the listed legislations including the crucial questions arising from these issues together with the suggestion of the solutions. The diploma thesis consists of four chapters. First chapter presents the introductory treatise on the implementation of the legal establishment of the corporate governance together with the emphasis on the economical output. The second chapter is dedicated to the very merit. The legislation of the fiduciary duties,...
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General duties of directors, in particular duty of loyalty
Mancelová, Silvia ; Štenglová, Ivanka (advisor) ; Dvořák, Tomáš (referee) ; Josková, Lucie (referee)
The dissertation is focused on research of the general duties of members of the board of directors in a capital company, in particular the duty of loyalty. Besides the duty of loyalty, members of the board of directors have a duty to act with due managerial care. The doctrine paid attention to the specification of the duty to act with due managerial care but there has, as yet, been no attention paid to the duty of loyalty. The new legislation contained in the Civil Code Act n. 89/2012 Sb. (CC) subordinates the duty of loyalty under the duty to act with due managerial care. The subject of the dissertation is research of the nature, origin, and function, of the duty of loyalty. The conclusion of the dissertation is the confirmation of the hypothesis, that the duty of loyalty by which a member of the board of directors is bound, is a fiduciary duty and an independent duty, which is not a part of the duty to act with due managerial care.
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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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Duty of loyalty of a member of a limited company
Gabonay, Andrea ; Černá, Stanislava (advisor) ; Zahradníčková, Marie (referee)
Duty of loyalty of a member of a limited company The thesis focuses on the issue of the duty of loyalty which has been imposed on the members of capital companies by the newly adopted private law legislation as enshrined in the new Civil Code, No. 89 / 2012 Coll., and in the Business Corporations Act, No. 90 / 2012 Coll., as amended and supplemented up to now. The paper compares the newly adopted legal framework which is already in force with the previous legal regulation and describes the most significant changes and differences as brought by the new legislation. Attention was also given to the relevant case law and to the issue of its possible application when connected with the new legal framework. It can be stated that the conclusions derived from the existing case law which has been based on the previous legal framework are applicable also to the newly recodified system. A summary of the overall impacts of the new legal rules shows that the imposition of the duty of loyalty on the members of capital companies in civil law strengthens the principle of legal certainty and eases the determination of those member duties which are not literally imposed by the law or by a memorandum. Albeit the duty of loyalty is a rule of conduct created by the written law, it is general enough to evaluate on its basis...
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