K některým změnám úpravy obchodních společností v souvislosti s rekodifikací soukromého práva

The article is aimed at scrutinizing particular points of the new legal regulation of corporate law in the amended Czech Commercial Code. The objectives of the new amended legal regulations are a qualitative improvement of its legal rules and an achievement of their mutual equilibrium. It concerns particularly the relationship between the protection of minority and majority shareholders. The recodification of private law and the further following amendments of the legal regulations are also an opportunity for improvement of the Law of Groups (Konzernrecht). With regard to the regulation of “factual” groups, i.e. groups de facto, there is a suggestion to abolish the provision imposing a duty to deposit a report on the relations between the parent company and its subsidiary companies into the Collection of Documents at the Commercial Register in a full version. The report should be composed, as in German law, as a basis for an inquiry into the consequences of control by an auditor and the supervisory body of a subsidiary company, or an independent specialist. It should serve as a measure to force a board of directors of a subsidiary company to clearly express its opinion in respect to the potential rise of damage raised from control. The article also recommends to regulate, in accordance with a draft proposal for a Ninth Directive, a possibility given to minority shareholders to file a motion in court in order to get a judgement on the termination of their participation in the company in the case of qualified “factual” groups based upon identical terms as it is already done with regard to an inception of contractual groups, i.e. upon payment of compensation. Furthermore, there should be given an alternative (upon laid down terms) to provide the compensation not merely in money, but also in shares of the controlling company, or the parent company, in the respect to contractual groups. The equilibrium regarding the protection of minority and majority shareholders could be significantly strengthened by adoption of the legal regulation which would enable the majority shareholder to terminate the participation of minority shareholders in the registered companies even against their will. This legal procedure shall be named the “minority squeeze-out” (compulsory acquisition of minority shareholdings) and the majority of national legal systems, which are mentioned in this article, will regard it as a legal institute of the law of financial markets following a foregoing takeover bid. In the United Kingdom, France, Italy, Sweden and the other Scandinavian countries, as well as Belgium, the Netherlands and Germany, there prevails as a rule a legal conception accentuating position of shareholder as investor. “The investment view” puts down to a certain extent the conception of shareholder as a member of an association. Economic arguments for the legal regulation of “minority squeeze-out” are based on the conviction that it is necessary to take into consideration an interest of the majority shareholder, who puts enormous financial resources into acquisition of 90%, or 95% and higher share in the target company. Such a shareholder should be enabled, according to the prevailing opinion, by legal regulation to exercise an effective controlling power in its subsidiary group by means of acquisition of 100% share in the subsidiary companies. Nevertheless, merely strict compliance of the above mentioned legal requirements is able to exclude any legal suits and other legal steps of minority shareholders in the case of prospective restructuring of the group. The legal regulation of the “minority squeeze-out” is regarded as a promotional measures in favour of financial investments and the formation of a competitive comparable business environment. Such legal regulation should be also part of the domestic legal system.