Osobní statut právnických osob v českém právu

Private international law belongs to those few exceptional branches of the Czech law which even in the period between 1948 and 1989 preserved a standard level comparable with that in developed States of a continental legal system. The development of this branch was autonomous to a considerable extent and resistant to substantial changes in the regulation of private law in the socialist era. Nevertheless, there are domains to which was not and could not be paid such attention which they deserve. Legal regulation of personal statute of legal persons is in the opinion of the author an appropriate topic on which, at least in partial view, the development of the Czech private international law in this area may be illustrated, viz. on the one hand in comparative law aspect, on the other hand as to the history and the present. 1. Determination of personal statute of legal persons in comparative law aspect. First part deals with the determination of personal statute (lex societatis) of legal persons. The fundamental factors connecting a legal person are the incorporation principle and the seat principle. These two principles, as opposed to a number of ether principles, which were gradually left aside, survived more than one century, some importance also preserving the control principle, which, however, is not a third complete alternative to incorporation and seat principles. The incorporation principle, adopted especially in systems of Anglo-American law area, is governing law in many other States, as e. g. in Netherlands, Italy, Switzerland, Russia, Hungary, Bulgaria, and also in the Czech Republic and the Slovak Republic. As a rule, the incorporation principle in these regulations is partly “corrected” or revised by the seat principle, that is, it does not occur in a “pure” form. This has its profound rationale. The author points out a number of advantages of the incorporation principle which founds its supporters even in the States adhering to the seat principle. The incorporation principle is considered to be liberal, democratic, respecting above all the free, autonomous will of the parties to the contract of association. Moreover, it preserves legal existence of the entity in the case of transfer of the entity’s seat to another country. It goes without saying that this solution makes easier the development of international commercial relations and leads to a liberal practice of recognition of foreign entities. Perhaps a most relevant objection to the seat principle is the fact that this principle makes it impossible to transfer the seat of a foreign entity without changing its identity. This may lead to serious consequences, e.g., as to the use of trademarks or commercial names. The criticism, however, is more general – the seat principle conflicts with the principle of free movement of persons, which is one of the fundamental freedoms of the internal market of the European Community in the sense of Art. 3 lit. c) of the EC Treaty. 2. Persona] statute of legal persons and the Czech law. As to the question of lex societatis, the Czech law has passed through an interesting development – from the seat principle to the incorporation principle. The “culmination” of the incorporation principle in its purest form is over because in the present regulation, at least in the author’s opinion, some corrections of the incorporation principle in favour of the seat principle appear. The Austrian 1811 Civil Code, which was still in farce in the pre-Munich Czechoslovak Republic, was based on the principle of the effective seat. The author considers in detail opinions of Czechoslovak theory and jurisprudence from that period. She points out that a certain part in determination of lex societatis was played by international treaties. Undoubtedly, this was also caused by the fact that in the autonomous Czech domestic law no proper conflict rule existed, which would expressly and unequivocally resolve this topic. The author opposes the conclusion of some authors that provisions of international commercial treaties bring the combination system, in which the seat principle and the incorporation principle are combined. Such way of argumentation leads to a certain diminishing of a special existence of the autonomous domestic law and a regulation laid down in bilateral international treaties. An international treaty, which is binding for the Czech Republic and valid from the internal view (i.e., also duly published), forms a part of the Czech law. However, its provisions apply only to relations between the nationals of the parties to the treaty, or, more precisely, between the respective addressees of the rules of such a treaty. Another international treaty, concluded between the Czech Republic and another State, provides for other rules, which shall apply only to the addressees of such another treaty. These rules of bilateral treaties, usually different, can hardly be generalized. Private international law was codified in the Act on Private International Law and Legal Status of Aliens No. 41/1948 Coll. This regulation, however, does not throw much light on the question of lex societatis. Under Section 1 of this Act the capacity to act of a person shall be governed, unless the present Act provides otherwise, by the law of the State of which such a person is a national. The situation remains thus unclear. It seems that the pre-war principle of effective seat was deserted without any explanation, more exactly, this principle did not apply as a fundamental principle. A radical change comes with the recodification of main branches of the Czechoslovak private law in the mid sixties, in whose framework were also issued with effect from 1 April 1964 the Act No. 97/1963 Coll. Concerning Private International Law and the Rules of Procedure Relating Thereto (PILA) and the Act No. 101/1963 Coll. on Legal Relations Arising in International Business Transactions (International Trade Code, ITC). The basic conflict rule governing the capacity of persons is included in Section 3 of PILA which has been in farce up to the present. A special norm in this direction was the International Trade Code. The International Trade Code adopts unequivocally the incorporation principle. The conflict rule in Sect. 8 para 1 ITC states that juristic persons are enterprises and other organizations, if the law under which they have been incorporated confers upon them the capacity to enjoy rights and to have obligations. Under Sect. 9 para 1 ITC the legal status of juristic persons is governed by the provisions of the law under which they have been incorporated, or by their articles of association promulgated under such provisions; they shall inter alia set the corporate name, designate the persons authorized to act on the person’s behalf and indicate the manner in which such juristic person will cease to exist. The International Trade Code was repealed by the Commercial Code (ComC) which entered into effect on 1 January 1992. The conflict rule concerning Jex societatis in the present Czech law is included in Sect. 22 ComC: “The legal capacity of a foreigner, other than a foreign natural person, under Czech law shall correspond to the law under which such a juristic person (entity) was founded. The law, under which the foreign entity was founded, shall also govern the foreign entity’s internal relations and its partners’ (members’) liability for the entity’s obligations.” This provision lays down the incorporation principle. The law, under which other than natural foreign person was founded, shall apply, regardless of whether such an entity has in the State of its incorporation also its actual seat or not. In this sense, Commercial Code follows up on the preceding conflict-of-laws regulation concerning capacity of juristic persons under the International Trade Code, provisions of both regulations not being identical, however. As for systematic arrangement, a general conflict rule of Sect. 3 of PILA provides for the law applicable to the legal capacity of a person, and a special conflict rule of Sect. 22 ComC governs the law applicable to the capacity of legal persons. In author’s opinion, it would be more appropriate to include a conflict rule of such character directly into the PILA – such a solution would correspond to modern codifications of private international law which also provide for the law applicable to legal persons. Some questions are inspired by the application of a general conflict rule under Sect. 3 PILA, namely, whether this provision relates only to natural persons or, in general, also to legal persons. There are various opinions – Sect. 3 para 1 PILA is invoked, inter alia, by determining of lex societatis also by practice, as the author indicates on a number of judicial and arbitration decisions. Regardless of the legislature’s intention, it should be openly admitted that even if Section 3 PILA involved not only natural but also legal persons, such a finding does not bring, as a matter of fact, anything new. The question, under which factor the lex societatis should be determined, is not expressly resolved in the rule of Sect. 3 PILA, which only in general refers to “nationality”. Czech law provides for some corrections of the incorporation principle in favour of the seat principle, which are included in Sect. 24 para 2 and Sect. 26 para 3 Corne. These provisions limit the scope of application of a foreign law, under which the legal person was founded, in favour of the Czech law, that is, the law of the actual seat of such an entity. 3. Prospects of the lex societatis in Czech law. The Czech legislature decided in favour of the incorporation principle which takes a favourable position not only towards foreign investors but also towards foreign law and international cooperation. The incorporation principle is, inter alia, considered to be long-term, but prospective principle of lex societatis also within the law of the European Union.