THE LEGAL BASIS AND CONTEXTUAL INTERPRETATION OF THE DUTY OF CARE IN COMPANY LAW IN THE SLOVAK REPUBLIC: FROM A “GENTLEMANLY AMATEUR” TO A PROFESSIONAL DIRECTOR?

: A director may slip into the fulfilment of their own (opportunistic) interests due to the separation of management and ownership in companies and the fact that the director does not bear the risk of the possible failure of the company. Because there is a tension between the company (and its shareholders) and the director due to differences in their interests and information asymmetry, their relationship is based on trust, which is the core essence of a relationship between these entities (fiduciary relationship). The study focuses on the principal aspects of how Slovak company law deals with the tension between the interests of the company, its shareholders, and directors, especially from the point of view of compliance with the duty of care.


INTRODUCTION
A characteristic feature of company law is that when the management of a property is entrusted to a person (agent) other than the owner of this property (principal), it is required that such an agent proceeds with due care while managing this property or respectively complies with the duty of care. The above-described also applies to members of an elected company's bodies, to which the management or control of the company has been delegated and these members are obliged to observe the duty of care in the performance of their office.
Due to the separation of management and ownership in companies 2 and the fact that a director does not bear the risk of a possible failure of the company, they may slip into the fulfilment of their own (opportunistic) interests. Because there is tension between a company (and its shareholders) and the director due to differences in their interests and information asymmetry, their relationship is based on trust, which is the core essence of the relationship between these entities (fiduciary relationship).
The study focuses on the principal aspects of how Slovak company law deals with the tension between the interests of the company, its shareholders, and members of the bodies, especially from the point of view of compliance with the duty of care.
The company, as a legal person, is separate from its founders and shareholders, it has its private law basis in the Civil Code, 3 which defines the general framework for companies as legal persons, with the central concept of a statutory body to which the Commercial Code 4 assigns competence in matters of the decision-making process (creation of will) and management of the company. The very core of this study seeks an answer to the question of how the directors, as members of the bodies (either statutory or controlling), shall perform their competencies and the evaluation of the possible interventions to the decision-making process in the company's affairs by the general meeting or some of the shareholders, with a link to the emerging liability relations.

COMPANY AS LEGAL PERSON
Legal persons have their private law basis in the Slovak legal system in the Civil Code, which according to the de lege lata regulation is based on the so-called realist theory 5 of legal persons. 6 Legal persons have the capacity to have rights and 5 Section 18 Subsection 1 and Section 19a of the Civil Code. In the context of the legislative intention to recodify the company law inclination in favour of fiction theory might be detected. Legislative intention to recodify company law, Working group for recodification of the company law, Ministry of Justice of the Slovak Republic, May 2021 and Section 1 of the proposal for the Civil Code available at: https://www. justice.gov.sk/Stranky/Ministerstvo/Rekodifikacia-OZ/Navrhy.aspx. 6 On the other hand, Csach states that the theory of legal persons in the Slovak legal system is based on both theories (realist theory and fiction theory) and at the same time on none of those. Csach stipulates in detail: "Legal personality is granted to a certain organized unit only by law, not by social reality, even in relation to foreign entities. At the same time, it is assumed that a legal entity can act on its own through its bodies (rather reality theory), but the principles of representation also apply -position of the distinction between the existing entity and another entity acting on behalf of the legal entity (rather fiction theory). A possible inclination to the realist theory is relativized by the fact that the law avoids the terminological conclusi on that legal persons are capable of legal or illegal acts." ; and for more general information on the realist theory and fiction theory of legal persons in the context of company law and also with regard to the rulings of the obligations (legal personality) as well as the capacity to acquire rights and obligations (capacity to perform legal acts). The ability of a legal person to acquire rights and obligations through its own acts may be limited under the Slovak legal system only by law. 7 The ultra vires doctrine, which binds the validity of legal acts of the company to the scope of its activity specified in the founding documents, has not been applied in the Slovak legal system since 1991. From the de lege lata legislation stems the conclusion that even if the scope of the activity specified in the founding documents is exceeded, the legal acts will be binding on the legal person, unless these legal acts violated a prohibition resulting from special legal regulations.

THE BOARD OF DIRECTORS AS STATUTORY BODY
The above-defined capacity of the legal persons -companies -for legal acts is followed by the determination of who will express the will of this legal person in a legally relevant manner on behalf of it. The Civil Code designates persons who are entitled to act directly on behalf of a legal person in all matters as "statutory bodies" 8 with a link to the general definition of legal capacity of a legal person. This term, which is by its nature a legislative abbreviation defined in the Civil Code, is taken over by the Commercial Code 9 , which stipulates that a legal person acts by its statutory body or a representative. 10 The Commercial Code specifies the designation of a statutory body for each type of company 11 and cooperative, defines its essence as a collective or individual body, and, as a default, stipulates the manner of acting on behalf of the company.
An action of the statutory body is therefore directly an action of the company as a legal person and the statutory body is not the company's representative in relation to third parties. 12 A company as a legal person is a complex entity and it is necessary to make a strict distinction between (i) the expression of its will towards third parties (actions), which may be conducted by a statutory body or a representative 13 and (ii) decision-making Coll.) stipulates that a state-owned enterprise may not secure the liabilities of third parties with its assets. 8 Section 20 Subsection 1 of the Civil Code. 9 Section 13 Subsection 1 of the Commercial Code. 10 Section 13 Subsection 1 of the Commercial Code. 11 For the purposes of this study, we use a term "statutory body" and "director" as a general term and specifically terms "managing director" for a statutory body in a limited liability company and "board of directors" in a joint-stock company. In the study, we abstract from a more detailed specification of directors, e.g., in the position of independent directors. 12 Within the presented concept of legal persons in the process of recodification, it is proposed to change the actions of the statutory body of a legal person from direct action to representation. Business management is a term related to the overall management and control model of a company. This term does not and cannot have a single "shape", because it depends on the scope of business activity, size of a company's enterprise, and the legal form of the company, as well as the "determination" in basic corporate documents.
By business management we mean the management of a company and decision-making on all its matters with intra-corporate effects. In relations with third parties, the conclusions of these decisions will be reflected in the actions of the directors or the company's representatives. The Supreme Court of the Slovak Republic also characterized the business management as "decisions of any kind on the affairs of a particular company, except for acting externally as a statutory body (director)". 14 The Commercial Code uses expressis verbis the term business management for an unlimited company, a limited partnership, and a limited liability company, but does not define the scope of this term. The Commercial Code uses various terms to define the competence of a board of directors of a joint stock company, a simple joint stock company, a cooperative, and directors of a limited liability company. In connection with the board of directors in the joint stock company, simple joint stock company, and cooperative the law defines the competence of a statutory body as the power to manage and make decisions; on the contrary, in a limited liability company, the decision-making power is more diversified among bodies, as a general meeting can take on powers from act on behalf of the company externally. In its decision, the Supreme Court of the Slovak Republic stated that: "The right of the members of the Supervisory Board to bind the joint-stock company by its own ac tions does not follow from the wording of the provisions of Section 15 Subsection 1 of the Commercial Code regulating the legal representation of an entrepreneur, as the members of the Supervisory Board cannot be considered as persons who would be entrusted with a certain activity in the operation of the company." 14  other bodies of the company, thus the question is complex and we cannot perceive it as binary.

THE JUDICIAL DEFINITION OF THE BUSINESS MANAGEMENT
Due to the fact that the Commercial Code does not contain a definition of the term "business management", it is not possible to determine the exact legal enumeration of which decisions fall within the scope of the business management of the company. In this view, the courts have to deal with this intentional loophole in the law within their decisions in corporate litigations.
In a recent decision of the Supreme Court of the Slovak Republic, an organizational change within the company's enterprise was considered as a decision on the company's business management affairs. The court came to the legal conclusion that there were de facto collective redundancies in the company, even though the legal requirements for collective redundancies under the Labour Code 15 were not met. The Supreme Court of the Slovak Republic stated that the decision was within the business management of the limited liability company and therefore should be taken with the consent of the majority of directors. 16,17 The Constitutional Court of the Slovak Republic, 18 with regard to the complainant's (as defendant) complaint in this case, annulled the judgment of the Supreme Court of the Slovak Republic and returned it to the court for further proceedings. The Constitutional Court of the Slovak Republic assessed the above-mentioned legal conclusion of the Supreme Court of the Slovak Republic as incorrect. In its ruling, the Constitutional Court of the Slovak Republic reasons in its statement that the Commercial Code is not in relation of subsidiarity to the Labour Code. According to the Constitutional Court of the Slovak Republic: "It is not possible to assess the protection of an employee through a company law institute, which is to serve a completely different purpose -internal protection of a limited liability company, protection of its shareholders from its direc tors." 19 Furthermore, in its ruling, the Constitutional Court of the Slovak Republic refers to the legal theory: "[…] a decision on an organizational change, which results in a redundancy of an employee shall be taken on behalf of the employer by a person who is authorized to perform legal acts on behalf of the employer without any connection to the adoption of this decision within the company's management." 20 In the context of the above stated arguments, we do perceive a fundamental difference between the conclusions of the Supreme Court of the Slovak Republic and the Constitutional Court of the Slovak Republic in an answer to the question Cui prodest? (Who benefits?). In our opinion, the Constitutional Courtʼs reasoning gives the correct answer, it is the company itself and its shareholders whose protection is reflected in the legal requirement. Management and decision-making processes are the basis for external legal actions, however, the legal effects of these actions do not depend on compliance with these internal processes, but on compliance with the disclosed manner of "representation" of the company entered into the Commercial Register. In the event of a breach of the internally set decision-making processes, such breach is linked to the obligation of the directors to compensate the damage caused to the company and not to the third parties (this obligation may occur exceptionally).

INSTRUCTIONS TO THE DIRECTORS
Instructions to directors are undoubtedly a way of interfering with its decision-making competence. The Commercial Code does not explicitly address the issue of the binding or non-binding nature of the instructions to business management, therefore the opinions and the answers to this question vary and the legal doctrine is inconsistent on this issue. 21 Opinions of the legal doctrine differ in two areas. The first area is the question of a possible transfer of competencies, respectively, their partial transfer in the area of management and business management from the directors to the general meeting. The second area is then the evaluation of the consequences of the decision (binding/non-binding) of the general meeting within the transferred competence. In order to answer the question of competence, it is necessary to distinguish between a limited liability company and a joint stock company. This difference is not justified by different standards of care and loyalty of the managing director and board of directors, as these standards are the same. 22 The difference lies in the possibility of transferring the business management, respectively, transferring certain issues within the business management between the managing director and the general meeting of a limited liability company and the board of directors and general meeting of a joint stock company. The general meeting of a limited liability company may ad hoc appropriate a decision power in a matter which otherwise falls within the competence of another body. 23 In principle, in the case of a limited liability company, it is accepted (or it is not denied) that the Commercial Code allows the general meeting of the company to instruct the managing director, which could also concern the business management. Differences in approaches then vary in whether the Commercial Code allows a complete emptying of the competence of the managing director's business management and transfer it to the general meeting, or such a transfer is possible only in some issues not to deny the 93 mandatory structure of the company's bodies. 24 The instruction of the general meeting addressed to the managing director interferes with their independent discretion and the utilization of their professional care. 25 The decision of the general meeting (in accordance with the law, articles of association, and bylaws) represents an exoneration from the damage of the managing director 26 (also a member of the board of directors). 27 This exoneration does not apply to the duty to file for bankruptcy nor in the case of a breach of the director's ban on competition. 28 However, such a decision of the general meeting does not constitute an excuse in relation to the duty of care 29 or the duty of loyalty of the director. 30 The director must always monitor the benefit of the company and disobey any instruction that would be contrary to the interests of the company, even at the cost of the threat of their dismissal. 31 In our opinion, the managing director is not bound by the instructions of the general meeting precisely because of the possibility to bear  their liability, especially due to the duty of loyalty to the company. 32, 33 If the managing director acted disloyally, even though they would implement the decision of the general meeting, their compliance with the duty of care is questionable as well. The managing director, bound by a duty of loyalty is, in principle, able to fulfil their obligation to proceed with the required standard of care only if they act in the interest of the company. 34 The obligation of the managing director to monitor the interests of the company cannot be exempted under Slovak law through the instruction of the general meeting. 35 Unlike the general meeting of a limited liability company, the general meeting of a joint-stock company cannot ad hoc appropriate a decision on a matter which otherwise falls within the competence of another body. If the general meeting of a joint-stock company has such competence, it must be included in the bylaws of the joint-stock company. In the case of a joint-stock company, there are also opinions that completely exclude any transfer of the business management from the board of directors to the general meeting. 36 We agree, that interventions to the business management of a joint-stock company would be counterproductive and, in essence, endanger the functioning of the joint stock company due to its nature (especially public joint stock company), but we do not completely exclude the possibility of such interventions in individual cases through amendments to the bylaws. In our opinion however, even the board of directors of a joint-stock company is not bound by such instructions from the general meeting. In the case of instructions that do not interfere with the company's business management, we may also encounter views which consider such instructions to be binding, provided that they comply with the law and the company's bylaws. 37

FACTUAL INTERVENTIONS TO THE MANAGEMENT OF THE COMPANY
Interventions to the company's management do not have to be in a way of a formal decision of the general meeting, or other elected body of the company, these may also be based on de facto interference to the management or actual exercise of the powers of the director, without the formal appointment of such a person to the office. It is not necessary for such a de facto director to act externally towards the third parties, the decisive factor is whether the companyʼs business management is constantly performed by the de facto director, 38 a one-off intervention is not sufficient. The de facto director is also subject to the fiduciary duties and thus also to the duty of loyalty. 39 Such a duty of loyalty is a delegated duty in the standard required from a director who is obliged to suppress their own interests and follow the interests of the company and all of its shareholders exclusively. The persons in the position of the de facto directors are also subject to other obligations belonging to them, such as the director's ban on competition, which is a manifestation of the duty of loyalty, but also the regulation of self-dealing or related parties' transactions. 40 The liability for damage of the de facto director will be governed by the provisions on liability for damage of directors, including the reversed burden of proof, which lies on the de facto director. 41 However, it is questionable whether it is possible to invoke the exoneration in the form of a decision of the general meeting, especially if the de facto director would be the single shareholder of the company or a majority shareholder or shareholder with a majority of voting rights. Discrepancy in the conduct of such a shareholder with its own decision is unlikely. The exoneration in the form of a resolution of the general meeting is inapplicable in such a case, because, in principle, the shareholder would exonerate themselves. 42 The exercise of further liability claims against the de facto director will depend on the real possibility to fulfil the obligation to which the breach is bound. Csach stipulates that, as an example of an obligation which will not be enforceable by a de facto director, is the obligation to file for bankruptcy. 43

HOW TO PERFORM THE DIRECTOR'S DUTIES?
The duty of care and the duty of loyalty are general legal obligations which directors are obliged to comply with. As general clauses, they represent standards for a director's behaviour. Compliance with these general clauses as legal criteria is left to the discretion of the court in the specific circumstances ex post.
The duty of care and loyalty are aimed at ensuring different standards of behaviour (awareness and motive). If the duty of care is directed towards decisions with good  intentions and sufficient information, the duty of loyalty, unlike the duty of care, focuses on motive. 44 This focus on the motive means that it is not the outcome of the action or inaction of the director that is decisive, but in whose favour or in whom interest the director acted or did not act. In the case of a duty of loyalty, it must be a matter of adhering to a standard of conduct in the form of maintaining the right motive, i.e., pursuing the right interest. The duty of care and the duty of loyalty are interconnected, because in the performance of the office of the director one conditions the other, i.e., the duty of loyalty ensures that the duty of care is met. The violation of the duty of loyalty also violates the duty of care, because it lacks the right motive (simply the path that must be followed when providing care), in the case of violation of the duty of care, it is difficult to admit adherence to the duty of loyalty, respectively, if so, only with (reasonable) good faith. 45 However, other factors also enter into this premise, namely the regime concerning the binding nature of shareholders' instructions to the director, where there may be a conflict between what is in favour of the company and all of its shareholders, and a director's obligation to follow instructions, which do not comply with such an interest. The legal regulation of a breach of duties of directors has a uniform phase for business and non-business decision-making. The question of compliance with the interests of the company and its shareholders is not relevant in matters of compliance with the obligations imposed by law. "The law is not for deliberation", 46 but in some contexts of decision-making process on the fulfilment of a legal obligation, we can also recognize a certain, sometimes significant element of uncertainty, e.g., an assessment of legality in competition law, 47 growing relevance of international human rights conventions and documents, 48 etc.

DUTY OF CARE
The duty of care is reflected in the Commercial Code in the duty to perform the office with professional care. At the same time, professional care is a term used in the Commercial Code especially for procurement contracts, within which the exercise of the mandate or commission requires performance at a professional level in the subject matter of the contract. This legislative solution is related to the fact that the Commercial Code contains legal norms for company law as well as business contract law. For this reason, the interpretation of the concept of professional care was initially uniform and only subsequently emancipated to the notion that the duty of care requires a certain quality of procedure and competence in the performance of the relevant activity. 49 As Csach points out, the term professional care is used in Slovak corporate law differently from this term in contract law, as in contract law, it contains a requirement for a higher quality of professional care in a given area of business (construction, transport, medicine, law, etc.). 50 In company law, this level of professional care within the framework of corporate governance is moderated by a doctrinal interpretation 51 towards the competent performance of the office (at a mandatory level of care legitimately expected from a director -level of a proper caring manager).
The Commercial Code does not require a certain completed level of education or proof of experience in the field in order to fulfil the ability to perform the office and maintain professionalism. However, if a director has special knowledge or experience, they are obliged to use it for the benefit of the company (lawyer, auditor). According to Csach, "the required quality of behaviour is therefore assessed objectively, but sub jective conditions may strengthen it". 52 However, general conditions, as well as special conditions relating to education or training, may be required by other regulations. An example is the professional performance of an activity ensured through a director. 53 The conditions for the performance of the office may also be stipulated in the company's articles of association or bylaws and should also determine the consequences of the termination of the preconditions required by the articles of association or bylaws for the performance of the office. 54 The duty of care requires the establishment of an information system for strategic decision-making in order for the directors to be able to make decisions with such knowledge in the subject of company's business activities, 55 which will be considered sufficient in an objective test. Based on the created system, it is possible to subsequently delegate the performance of some decision-making components to lower levels of From the point of view of assessing compliance with the duty of care of directors, the subjective test is not applied in principle and personal prerequisites are not important (e.g., age, experience, knowledge are not decisive), but an objective test is applieda professional approach to the performance of the office is decisive. 56 However, the core of the performance of the office lies in the management of foreign assets, which undoubtedly requires knowledge, experience, and skills, but if the legislator does not specify them (e.g., for banks, insurance companies, etc.), then it is at the discretion of the director, whether they are able to recognize and evaluate information obtained, or "recognize their own incompetence" 57 and subsequently use the professional assistance of a third party. The choice of this third party must be made competently, with proper care (culpa in eligendo), together with a proper evaluation of the results of this professional assistance.
In defining professional care, it is necessary to separately state the obligations of directors related to bankruptcy proceedings, as in these proceedings the creditors of the company become the entities entitled to the company's assets instead of shareholders. The regulation of bankruptcy law explicitly defines the obligation of the debtor to prevent bankruptcy. If the debtor is in danger of bankruptcy, they are obliged to take appropriate and sufficient measures to avert it without undue delay. At the same time, continuous monitoring of the development of the financial situation as well as the state of assets and liabilities is required in order to identify a threat of bankruptcy in a timely manner and take the necessary measures. The directors are responsible for fulfilling these obligations, however, due to the content of the defined obligation (monitoring the development of the financial situation), the members of the supervisory board are also addressees of this standard.
The current legislation in Slovakia has a valid concept of "vicinity of insolvency" through the institution of a company in crisis. 58 This amendment also linked the provisions of the Act on Bankruptcy and Restructuring as a lex concursus with the provisions of the Commercial Code as a lex societatis, 59 when it specifically stated the obligation to file for bankruptcy, and when violated, the exoneration of business judgment rule does apply in a restricted manner. The debtor is obliged to file a petition for bankruptcy if the company is heavily indebted within 30 days from which they learned or, while maintaining proper care, could learn of this situation. The provisions of the Act on Bankruptcy and Restructuring are also followed by provisions on disqualification.

DUTY OF LOYALTY
The duty of care is not isolated, and the director is also bound by the duty of loyalty. In the case of a duty of loyalty, it must be a matter of adhering to a standard of conduct in the form of maintaining the right motive, i.e., pursuing the right interest. The director is obliged to monitor the interests of the company and all of its shareholders, 60 it must not follow their own personal or business interests or the interests of third parties. 61 The core of the duty of loyalty of the director is the ban on the use of business opportunities of the company, the director's ban on competition, as well as the ban on the misuse of inside information. The duty of loyalty is a general concept (general clause) and includes several obligations that resolve the conflict between duty and interest.
The duty of loyalty obliges the director to act in the interest of the company and all of its shareholders. The Commercial Code itself does not specify the company's interest and in fact it cannot specify it. 62 The interest of a company ultimately depends on its ownership structure and is the result of the projection of the interest of all of its shareholders as a product of shareholders' democracy or a reflection of the interest of the controlling shareholder. When assessing the interest of the shareholders, it is not "any" interest, but this interest is limited by the purpose of the company. The conflict between the interests of the shareholders and the company must be resolved in favour of the company. 63 Of course, an interest that is contrary to the law is not protected by the duty of loyalty.
The duty of loyalty requires from a director to pursue the interests of the company and all of its shareholders. At the same time, however, other legislations imply that the director should also take into account the interests of consumers (regulations governing the quality of products and services), the public (environment), and the interests of employees. In case of violation of special regulations, the company will be directly liable. Subsequently, only after an assessment of all circumstances, will the company be able to claim damages (or other sanctions) against a director.  The professional and loyal performances of the office of a director are united in the duty of confidentiality. 64 Assessment of the professional aspect, which information shall be subsumed under the duty of confidentiality 65 (protection of confidential information and facts), is associated with the proper care of the director. Disclosure of confidential information and facts could not only harm the company itself, but also endanger its interests and the interests of its shareholders. The law prohibits such conduct by directors, which, in addition to causing damage to the company, may lead to damage to the company (without the consequence of actual damage or lost profit -potential threat is sufficient) or jeopardize the interests of the company and its shareholders (i.e., tort). In a joint-stock company, this element is amplified in assessing shareholders' requests for information at the general meeting, where the board of directors is obliged to subsume the request for information and explanations under the factual connection of the general meeting's program and identify possible harm to the company or the controlled entity. Identification of the potential threat to the company already reflects an effect of the director's duty of loyalty to the company and all of its shareholders. It is due to the fact, that information available to the directors from the performance of their office is taken into account and applied in relation to the potential threat of damage and threats to interests. 66

BUSINESS JUDGMENT RULE
Despite the competent performance of the office of directors, the expected correctness of a decision may not be confirmed in practice. This principle is an expression of the nature of the business judgment rule (BJR), which works with predictable risk, and therefore in assessing whether a director has acted with professional care. The result of the action is not examined, but the activity leading to this result (collection and evaluation of all relevant information, decision-making, and subsequent implementation of decision in good faith that the chosen procedure is in the interest of the company).
The principle of BJR is based on court decisions in the United States 67 and provides protection to directors if they acted in good faith with care that would be maintained by a reasonably prudent person in a similar position under similar circumstances and in the interest of the company.
It is a fact, that this rule is also undergoing a certain development in its country of origin, while its fundamental feature, created and completed by the courts, causes its characterization as the "least understood concept in the company law". 68 The BJR is characterized in this way, because it balances between regulation and free market, between public interest and private autonomy. 69 If we are to evaluate the regulation of this rule in the Commercial Code and the consequences thereof, it is necessary to briefly state in which way one could interpret the performance of the competence of directors within the BJR in the "country of origin". 70 The BJR is defined in particular by reference to the jurisdiction of the state of Delaware as the legal presumption that directors have acted with due care on the basis of sufficient information, in good and sincere faith, and in the best interests of the company. 71 The essence of this rule is, that the decision itself is not examined, what is examined is the decision-making process, even if it turns out over time that the decision itself was not in the best interest of the company. Not every bad decision means a breach of directors' duties. 72 The BJR can be interpreted as a standard of performance of the office, requiring a preliminary judicial inquiry to establish whether there are any elements of "disqualifying" behaviour, the burden of proof on these elements lies with the plaintiff. 73 The BJR as a doctrine of refraining from interfering into the decision-making processes of directors is applied automatically, this rule applies as a rebuttable presumption. Judicial inquiry is used as an exception, when this presumption has been contested (fraud, illegality, self-dealing, etc.).
The BJR, as a qualified immunity (safe harbour) for directors, means that in cases where directors have taken a rational approach and considered all available information, the expertise of their decision-making process is not assessed. The court will respect the decision until a conflict of interest in their decision-making or a loss of decision-making independence is established, or if they have not acted in good faith, or if they have acted in a manner that cannot be attributed to a reasonable business purpose. The decision must be made in the scope of directors' duties and the court will determine whether immunity will be applied, the burden of proof lies with the director. The BJR protects error, but does not protect negligence, lack of good faith, conflict of interest, or irrational or uneconomical decision, nor does it protect fraud or illegal decisions. 74 The Commercial Code contains a BJR, 75 but it is applied differently than in the state of Delaware. According to the Commercial Code, the burden of proof lies with the defendant to prove, that they acted with professional (proper) care and in good faith and in the interests of the company. Proving that it was possibly only a wrong assessment in decision-making while fulfilling their duties burden a director. 76 The BJR frees the obliged person from the accidental failure associated with business risk, but it frees them only from an honest error. This rule does not in itself constitute an exemption from the duty of care (they must always act reasonably well informed) nor does it release the obliged person from their duty of loyalty (they must always follow the interests of the company in good faith). In the event of a breach of duty of care or breach of duty of loyalty, the right to error will not be exercised, as it does not protect disloyalty, lack of care, and dishonesty.
The BJR does not constitute a reason to exonerate from liability for damage of the director. 77 The BJR is based on non-violation of fiduciary duties. A precondition for liability for damage of a director is a breach of their duties. If the BJR is applied, there will be no breach of duty (there is no breach of law). The director's liability for damage will not even occur, therefore it is not necessary to release them from this liability or to exonerate them from it. Therefore, in the Slovak legislation, the BJR is not a reason for exoneration from director's liability for damage, but a test for an absence of breach of law. 78 In the context of the above-described categorization, given the determining elements, in our opinion, it is correct to conclude that the Slovak solution is attributable to the understanding of the BJR as qualified immunity.

CONCLUSION
In 2022 the Slovak company law entered into the fourth decade of its development in the conditions of a free market economy. It is therefore not surprising that there is still a way to discover the basic framework and rules of company law. If Paul Davies mentioned in his monograph Introduction to Company Law in 2002: "We also suggested that the nineteenth-century starting point was one which displayed the direc tor as a 'gentlemanly amateur', not expected to be very skilled but expected to observe the highest punctilio of honour, especially in avoiding apparent conflict of interests.
[…] Over the past twenty years or so the courts have begun to demand standards of skill and care of directors which are much more closely attuned to those required of people in other walks of life... No longer a set of figureheads, the board claims its legitimacy, not only against the shareholders but also against other stakeholders in the company, on