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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 The standard of care of Re City Equitable [1925] has been replaced by the minimal objective standard based on the British judgment Re D'Jan of London [1994].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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Rule of entrepreneurial judgement
Janoušková, Kamila ; Eichlerová, Kateřina (advisor) ; Josková, Lucie (referee)
Every corporate director is under the obligation to perform his duties with reasonable care and loyalty. In connection with re-codification of the Czech private law, the Business Corporations Act brought a new institute to the Czech legal system - the business judgment rule. This rule provides corporate directors with a special protection against the liability for the breach of their duties. The aim of this thesis is to focus on this institute, to analyse the Czech version of business judgment rule, to compare it with its foreign models and provide the most likely judicial interpretation of it. The thesis consists of three main chapters. Chapter One deals with the issue of directors duties of care and loyalty and describes the grounds for existence of business judgment rule with a broaded context of law and economics knowledge. It explains the role of capital companies in business in order to define leading requirements for company regulation. Author focuses on the necessity of taking a risk in process of making entrepreneurial decisions. Chapter Two provides a description of two foreign models of business judgment rule. First, it deals with the business judgment rule originated from the practise of the courts in USA and two possible interpretations given by them - a standard of review and an...
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D&O (Directors and Officers Liability) insurance of members of a joint stock company bodies
Hřeben, Tomáš ; Borkovec, Aleš (advisor) ; Hraba, Zdeněk (referee)
The topic of the submitted diploma thesis is the directors and officers liability insurance of members of a joint stock company bodies and its aim is to analyze this insurance product and to evaluate possibilities of its use in domestic conditions. This theme is topical because of the recent financial crisis as well as with regard to the recodification of the Czech private law which resulted in demanding more requirements on members of a joint stock company bodies during performance of their office and most importantly the danger of guaranty for obligations of company in accordance with the provision § 68 of the law on commercial corporations constitutes a really big threat for members of a joint stock company bodies. In order to understand the dangers from which the insurance should protect, first of all the first chapter is dedicated to basic characteristics of joint stock company and mainly to duties of members of a joint stock company bodies which are divided into two groups in this thesis - fiduciary duties (duty of due care, duty of loyalty, duty of secrecy, prohibition of competition, duty of personal performance of office) and so called "technical" duties. In the next chapter there is briefly examined the legislation of liability and compensation for damage where these issues are consulted...
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Duty of due managerial care of memeber of an elective body of a limited company
Černý, Pavol ; Černá, Stanislava (advisor) ; Zahradníčková, Marie (referee)
IN ENGLISH The purpose of this paper is to analyse all segments of the duty of due managerial care of member of an elective body of a limited company and propose de lege ferenda approach to segments of the duty. Another goal of this master's thesis was to examine new business judgment rule and present an alternative British model of the rule. To provide a comparative approach the paper utilizes the British company law approach. The first chapter introduces the origin of the duty of due managerial care, in particular its roots in Roman law and Austrian civil code. The second chapter is divided into five subchapters. The first subchapter highlights the recent changes to the duty of due managerial care after recodification of private law. The second subchapter examines duty of care as one of two integral parts of the duty of due managerial care. Firstly, it analyzes the quality of care expected of directors. Secondly, it focuses on the test for determination of necessary standard of care. Thirdly, following a critical examination of the test for determination of a standard of care, the paper suggests de lege ferenda test of due care. Finally, the first subchapter considers the British duty of care, skill and diligence. The third subchapter covers the duty of loyalty including duties derived from it...
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Liability of governing bodies of limited companies
Vitha, Petr ; Patěk, Daniel (advisor) ; Josková, Lucie (referee)
- Liability of governing bodies of limited companies The thesis deals with the liability of governing bodies of limited companies in the light of the recodification of private law. The given topic is becoming increasingly acute in the Czech legal environment, especially with regard to the codification of due diligence and the business judgment rule in the basic acts of private law, namely the Civil Code and the Business Corporations Act. The aim of this work is to provide a comprehensive insight into the problems of the concept of liability within the Civil Code and a view into the Business Corporations Act and the ensuing liability of governing bodies of limited companies. In the first chapter of this thesis, various key concepts, which are used and elaborated throughout this paper, are analyzed and defined. The concept of liability is analyzed in terms of a historical perspective - both from the so-called prospective and retrospective conception to the conception contained in the Civil Code. The concept of a statutory body (governing body) is analyzed both in terms of rules contained in the Civil Code and in terms of the different specificities of the Business Corporations Act including the analysis of directors of a limited company and the board of directors of a joint-stock company. The second...
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Duty of due managerial care of member of an elective body of a limited company and consequences of its violation
Havlík, Jiří ; Černá, Stanislava (advisor) ; Zahradníčková, Marie (referee)
My thesis focuses on one of the fundamental issues of representation of stock corporations by their elected bodies or members of these bodies. This issue concerns the responsibility of these parties to act in the performance of their duties with due managerial care which is a key aspect in determining the standard required from the parties representing a limited liability company and a joint stock company. This topic is extremely relevant to the current situation due to recent re- codification of private law, whose linchpins are Act No. 89/2012 Coll., the Civil Code, and Act No. 90/2012 Coll. on business companies and cooperatives (the Act on Business Corporations). The authors of these regulations during their drafting had to cope with the development of both the doctrine and the case law and their task was not only to adapt the legislation to the commercial law practice of stock corporations of the 21st century, but also to resolve some of its contentious issues. The thesis consists of an introduction, three main chapters further subdivided into subsections and the conclusion. The first chapter deals with the legal regulation and the description of the concept of due managerial care and related aspects at the time of effectiveness of Act No. 513/1991 Coll., the Commercial Code. Particular...
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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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A contract to lease an enterprise
Lužová, Irena ; Eichlerová, Kateřina (advisor) ; Horáček, Tomáš (referee)
A contract to lease an enterprise A contract to lease an enterprise (Act No. 513/1991 Coll., the Commercial Code) was replaced by an agreement of usufructuary lease of an establishment with effect from 1. January 2014, when the New Civil Code came into force. Due to a new legislation, thesis in some chapters mentions comparison between present and former legal regulations, especially represented by Act No. 513/1991 Coll., the Commercial Code. Some chapters explain concept of usufructuary lease of an establishment from the historical point of view. The thesis deals with Czech legal regulation of the agreement of usufructuary lease of an establishment. It is an agreement regulated by Section 2349 atc. Act No. 89/2012 Coll., the New Civil Code. Usufructuary lease of an establishment is a contractual type related to contract of purchase of an establishment. Firstly, the thesis explains term establishment and defines objects we can classify as an establishment. The work also deals with the term part of an establishment ( branch) and other contextual terms. The main part is devoted to contracts essentialia negotii and the content of the contract from the view of the changes that have occurred with the effect of the Civil Code No. 89/2012 Coll. Especially problematic issues are rights and obligations,...
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Duty of due managerial care of member of an elective body of a limited company and consequences of its violation
Čopáková, Tereza ; Černá, Stanislava (advisor) ; Patěk, Daniel (referee)
Duty of due managerial care of member of an elective body of a limited company and consequences of its violation The purpose of my thesis is to analyze duty of due managerial care (hereinafter as "duty of care") of a member of an elective body of a limited company according to new legislation, which became effective in January 2014. Duty of care consist of several indefinite aspects and my aim is to define them and set boundaries in which person as a member of an elective body shall operate during performing his duties. Thesis refers to doctrinal view on this topic, offers solutions based on relevant jurisdiction and looks at consequences of violating duty of care. The thesis is composed of six followed-up chapters. Chapter One is introductory, defines basic terminology and consists of defining persons, who shall follow the rules of duty of care and consideration of liability in case of distribution of competences in collegiate body. Chapter also deals with issue brought to Czech law with integrating a monistic structure of stock company. This passage comes to conclusion that duty of care belongs to statutory director in the event of violating guidelines made by board of directors. Chapter Two is subdivided into two parts, each describing aspects of duty of care. Firstly it describes duty of loyalty...
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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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