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other theories about the nature of "getting responsibility»

The theory of agency service (representation). Such version of the concept of "getting responsibility» is extended mainly in the North American right (agency theory) [162]. Such approach that the corporation is legally isolated person who can operate only by means of the representatives-agents (directors, officials and other representatives) [163], except those cases, of course, is based when it is required to make any actions on behalf of general meeting of participants [164]. The corporation thus, under the general rule, is not the agent of the participants. At the same time participants can use corporation in own affairs «with such intensity», that it can turn to their agent-representative [165].

However even the big share of convention of such theory admits the USA. So, for qualification of legal relations as the agency USA according to the right it is required to establish presence of the set consisting of three elements:

1. A mutual consent to create relations of the agent and the principal,

2. The control from the principal, and also

3. Fulfilment by the agent of actions on behalf of the principal [166].

Thus only one of elements — the control always is present at relations at which there can be «a getting responsibility» that researchers in the USA [167] recognise also.

Apparently, even intention of the agent to operate in interests of the principal represented to it does not add chances of the theory about the agency (representation) nature [168 [169] of "getting responsibility» and in the continental law since this sign of relations of representation is facultative. That really is a substantive element of representation so it is intention to operate from a name

169

Represented and korrespondirujushchee the consent of the last.

By and large, the agency model has arisen in the American judiciary practice not owing to identity of legal nature and as special juridiko - a technique, allowing to reach desirable effect, like described above the concept of the actual director. From a position of the author, application of categories of agency service to the investigated doctrine would conceive negative effect first of all for the institute of representation since expansion of its borders attracts washing out of internal logic of the given institute [170]. Therefore even at a simple mention of such approach it is much more correct to use the term "kvazi-representation" (quasi-agency) [171].

The special partnership theory. The legal design «general partnership» also is maintained in the United States, in particular, in connection with the factor of mixture of actives of the company and dominating участника171 [172] (see § 2.2.5). Abstracting from legal requirements of the form of the contract of the special partnership, we will consider basic possibility of use of such model from continental law positions.

The key attribute of relations of the special partnership in the countries grazhdanskopravovoj traditions, including the pre-revolutionary and modern domestic law, is a presence of an overall aim [173]. Here it is necessary to note and initially fiduciary nature of the contract frolicing from Roman societas (on management of brothers of the general succession) which leaves a certain mark and on modern legal model of the contract.

It is possible to establish, that at the supervising participant and the dependent legal person, certainly, there can be an overall aim owing to unity of their interests (though their interests coincide and not always), and their mutual relations can have fiduciary character. In certain cases probably and entering of contributions into a common cause, that also constitutes one of signs of the special partnership [174], at least, in the domestic law (item 1041 GK the Russian Federation): So, the supervising person can provide granting in the form of rendering of services by the workers, and the under control company — to transfer the property.

Meanwhile, as correctly it is underlined in the literature, qualification of any contract begins taking into account how are meted between the right and duty parties. The contract of the special partnership is among in what each of counterparts possesses simultaneously both the rights, and duties, and the contract in all cases assumes vstrechnost such obligations [175]. It is obvious, that when one of such "companions" possesses own will (the dominating participant), and at other "companion" (the dependent company) that is absent, it is not necessary to speak seriously about any mutual duties and the rights, and furthermore about them vstrechnosti.

Told concerning flaws in the will, on representation of the author, it is actual and concerning Anglo-American model of the special partnership which, as is known, differs bolshej flexibility and can be established not only owing to the contract, but also in force estoppelja and on the basis of other proofs of existence of relations of association (proof of existence). Hence, the similar approach cannot be used in view of the ineradicable conceptual contradictions arising with t.zr. The continental European right.

The unjust enrichment theory. According to such approach which is defended by some scientists, «getting responsibility» can be considered in borders of institute of unjust enrichment. At least, konditsionnoe the requirement is staticized, with this t.zr., at a conclusion of property of the company [176]. Appointment kondiktsii about return is groundless the received is based on a postulate of inadmissibility of reception of benefit for another's account [177]. The dominating participant who deprives the company of its property with a damage for it and its creditors, but with benefit for itself or the persons connected with it unreasonably increases the property sphere, being enriched thereby at the expense of creditors of corporation. In the specified sense considered institutes really find out certain similarity.

At the same time the stated position is vulnerable for criticism. Even if to admit, that not company, and its creditors at the heart of transactions on a conclusion of property of corporation the actions lay, intentionally causing a damage to creditors (see § 1.3.1) will be the claimant in the action from unjust enrichment in the specified case, and the fault enriched, as is known, excludes application of institute of unjust enrichment [178] which besides has subsidiary character in Russian [179], French [180], Netherlands [181] and the German right, where also carries out filling function (erganzende Funktion) [182].

The theory of contractual responsibility. As the adjusted actions of corporation-debtor and its supervising participant are present, and the main sign of the contract, i.e. will of the guarantor and the creditor on contract creation is absent, how it is represented, more correct name for such approach — «the quasi-contractual concept».

The economic benefit equivalent to "getting responsibility», can come at "voluntary" «removal of corporate covers» and granting by the supervising participant of the guarantee or a guarantee of execution of obligations for the under control corporation. In that case infringement of guarantee certificates certainly generates contractual responsibility on the party of the supervising participant, i.e. the guarantor or the guarantor. As follows from the above-stated, such contractual responsibility cannot be defined as "getting" because of absence at the parties animus obligandi [183] and noted above features of its legal nature (see § 1.2.2). Besides, by granting of guarantees the matter of form frequently plays more important role and even in the English conventional law which traditionally takes of a liberal position: Granting of guarantees is here again supposed only in written form, in difference, for example, from assurances which is admissible to give and in the oral form [184].

The theory of absolute protection of liability laws. In property sphere of persons supervising corporation-debtor it is possible to look at an intervention problem ex adverso [185] — from a position of absolute protection of liability laws. Though a question on absolute protection of such relations diskussionen, however in some foreign laws and orders such statement of a question is possible and in certain cases courts and scientists suppose claims against the third parties which have interfered with relative legal relation, so-called "interventionists" (for example, to France, the USA, the Netherlands, Germany). Intervention of "interventionist" in another's obligation is a special and independent wrongful act — the tort [186]. Character of actions of such person and their consequence do not allow to consider action of "interventionist" by a version of infringement of the obligation which exists between the parties [187].

Advantage of such approach that he not only allows to keep a principle of an autonomy of corporation, but also, on the contrary, strengthens it, placing emphasis on independence of corporation and its participants from each other, focusing attention that between the participant and corporation there are no special relations.

At the same time an underside of this t.zr. There will be an infringement of a principle of a relativity of the obligation — a victim who, probably, is even less justified as generates variety of other problems about an admissibility of absolute protection and in other obligations relations. Besides, finally the rule about division of property of corporation and its participants will be deformed by final economic result of attraction of the participant to responsibility. Besides, even if the dominating participant had intention to destroy the concrete contract between the under control legal body and the creditor [188], the substantiation of exceptions of a rule about relative force of the obligation will demand the reference to corporate relations between the participant and corporation which have abused. Therefore it is represented, that such approach is incorrect, and discording impact on other institutes of civil law, anything, as a matter of fact, not giving in exchange makes.

Differently, theories of agency service, the special partnership, unjust enrichment, contractual responsibility and absolute protection of liability laws do not approach for a nature explanation to "getting responsibility» the persons supervising corporation. Application attempts in judiciary practice of some countries of such approaches have led to the proved criticism from scientists and judges. Meanwhile studying of these concepts allows to understand better legal essence of an investigated category, having narrowed a circle of search of the correct decision «penetration problems».

1.3.4.

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A source: BYKANOV DENIS DMITRIEVICH. «GETTING RESPONSIBILITY» In the FOREIGN And RUSSIAN CORPORATE RIGHT. The dissertation on competition of a scientific degree of the master of laws. Moscow — 2018. 2018

More on topic other theories about the nature of "getting responsibility»:

  1. LEGAL NATURE OF "GETTING RESPONSIBILITY»
  2. "identification" of corporation with other connected persons ("identity") and «getting responsibility»
  3. understanding of the legal person as "target" or "subjectless" property. Theories of "the subjectless rights» or «target property».
  4. "behavioural" responsibility and responsibility owing to the fact Prevailing participation
  5. "internal" and "external" responsibility of participants of corporation
  6. § 3. The basic theories of legal nature of the international commercial arbitration.
  7. Use of conceptual positions of theories “nesover - shennoj” and a "monopolistically" competitiveness in a modern economic science and economic practice
  8. "horizontal" and "vertical" responsibility
  9. "direct" and "return" responsibility
  10. theories of "the humanistic organisations»
  11. §2. The legal nature of insurance of professional responsibility. A parity with indemnity against liability under the contract and otgranichenie from insurance of non-contractual responsibility of subjects of professionalwork
  12. 4.2.3. Kontsept "trees" as key substantiv nature spheres
  13. 1.1. The legal nature and the maintenance of the constitutional category "state of health" of the person
  14. § 2. The legal nature of "judicial precedents"