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The content of duty to act with due managerial care
Brůnová, Marie ; Tomášek, Petr (advisor) ; Horáček, Tomáš (referee)
4 The content of duty to act with due managerial care Abstract This thesis looks at the various duties collectively called "due managerial care". None of the duties discussed in the thesis, which form the titles of the individual chapters, stands apart from the others. Their relationship to one another must be considered as a whole. In order for a person to perform due managerial care, there must be the cumulative fulfillment of all the duties discussed in the thesis, namely for each legal act that such a person is required to perform. The thesis is divided into five main parts. The first part offers a historical excursus, which illustrates the development of the institution of due managerial care. It then defines the range of people who are burdened with such a responsibility in the performance of their duties. It also outlines the procedural institution of the burden of proof and the related question of whether the duty of due managerial care is a legal-subjective or contractual-objective duty. The second part focuses on the duty of loyalty and describes the approach to understanding the interests of a business corporation. This part concludes with the question of whether the duty of loyalty continues after the position of a member of an elected body is terminated. The third part addresses the topic of...
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The Duty of Loyalty of a Member of a Business Company
Polena, Stanislav ; Černá, Stanislava (advisor) ; Zahradníčková, Marie (referee)
The duty of loyalty of a member of a business company This thesis deals with the topic closely connected with the field of corporate governance which is a part of corporate law. According to the American legal theory is duty of loyalty one of the fiduciary duties. The traditional classification of fiduciary duties is based on dualism - duty of loyalty and duty of care. But this concept is changing over time mainly due to case law. There is no settled opinion on the basic question how many fiduciary duties there are. Current opinion of the respected authority in this field - Delaware' Supreme Court is based on dualism of fiduciary duties, but not in the traditional meaning. The duty of loyalty includes according to the opinion of the judges not only conflicts of interests and self-dealing situations, but breach of good faith as well. On the other hand the traditional point of view was settled on two fiduciary duties - loyalty and care as well. Duty of loyalty was connected with conflicts of interest situations between principal and agent, when the personal financial interest of the agent was present. Duty of loyalty protected the legal position of the principal when agent managed entrusted property. The duty of care was connected with the interest of the principal and due performance of the agent with the...
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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
Skopcová, Markéta ; Čech, Petr (advisor) ; Josková, Lucie (referee)
The duty to act with the diligence of a professional manager and consequences of the violation of this duty This thesis deals with the duty to act with the diligence of a professional manager and the consequences of doing so. The author of the thesis tries to define in detail the duty to act with the diligence of a professional manager as a standard form of conduct and its individual definition components and also the consequences that occur in case of breach of this duty. The thesis defines the theoretical basis and tries to critically evaluate problematic issues related to this standard of conduct and to bring their own opinion on the matter.The thesis is divided into six parts. The first part deals with the master-agent issues and the related costs of representation. Shortly, attention is paid to the fiduciary duty and the reasons for its anchoring in general. The second chapter deals with the development of the duty to act with the diligence of a professional manager from the time of the General Austrian Civil Code of Law to legislation in the Civil Code in force and the Business Corporations Act. The third chapter defines individual elements of the care of a professional manager, namely the duty of loyalty, due care and necessary knowledge, with a partial overlap into foreign legal systems....
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Due managerial care in acquisitions in the Czech Republic and the Federal Republic of Germany
Slezáková, Sylva ; Josková, Lucie (advisor) ; Čech, Petr (referee)
The thesis contributes to the ongoing discussion pertaining the concept of due managerial care and the business judgment rule in Czech law and aims to explore the aforementioned in the context of acquisition transactions, in the context of purchase of a business share or an enterprise (or a part of an enterprise) as the issue of acquisition transactions, despite its substantial practical impact, remain largely out of scientific focus. Specifically, the thesis explores the possibility of articulation of the standard of due managerial care for the purpose of acquisition transaction and, if such articulation is possible, its specific features. In its exploration, the thesis focuses on articulation of the above standard in the context of availability of information regarding the target company or enterprise, which commonly takes form of a due diligence. The author aims to define the above standard upon comparison of Czech concept of due managerial care and business judgment rule with its German counterparts. Thus, the thesis also addresses the issue to what extent it is permissible to transfer and subsequently use the findings from the German standard of due managerial care in the context of Czech law. Following the initial comparison of the regulation of due managerial care and business judgment rule...
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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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Liability of the governing body of a joint-stock company before and after recodification of private law
Grundman, Vojtěch ; Štenglová, Ivanka (advisor) ; Čech, Petr (referee)
in English The thesis deals with the liability of the members of statutory authority of a joint-stock company in antecedent legislation and in present legislation. These legislation are compared and their differences are described. Duties of a member of statutory authority (foremost duty of care), whose violation led to commencement of obligation to compensation for damage, are characterized. Specifically the thesis deals with their obligation to pay damages and their liability for damage. These relations are analyzed not only to company itself, but also in relationship to the shareholders and third persons. Thesis contains also research of claiming damages and business judgment rule.
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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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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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