<<
>>

voluntary and compulsorily applied responsibility

There is an alternative sight at the limited liability nature in the corporate relations, recognising that imperativeness of such principle is not so obvious [122]. According to it the question on possibility of attraction of participants of the legal person to responsibility on its debts dares also.

Such position originates in the negative answer to a question on, whether the rule about limited liability of participants is imperative? If this rule is imperative, why participants of corporation can take voluntary up additional responsibility, having specified on it in the corporate charter, or having given a personal guarantee/guarantee of execution of the obligation of the company? Besides, founders of the legal person initially can select voluntary the corporate form with unlimited (additional) responsibility of participants, or transform limited liability company to the company with additional responsibility. Such possibility exists in many developed legal systems.

Differently, if the nature of a discussed rule dispozitivna there are no bases to support the creditors who have voluntary entered the relations with corporation with limited liability and to involve its participants in compulsory responsibility. After all the creditor owing to contract freedom has diskretsiju abstention from creation of the legal bond with the subject bearing limited liability, or, concluding the contract to demand granting of collateral security in the form of a guarantee of execution of obligations from participants, than the credit organisations almost always use by financing granting to the commercial organisations.

As is known, the bank directly ahead of extending credit takes of a strong trunk-call position when it is capable to impose to the borrower the conditions and to demand maintenance granting. After loan granting the credit organisation turns to weakness of the contract which requires additional protection of the law. Meanwhile there are the creditors taking of a weak position in dialogue initially (consumers, small businessmen, workers) and creditors from the tort which in essentialibus [123] have no effective levers of influence on participants of corporation - of the debtor and consequently always are weakness in relations. At such decision of a question when the law takes of a neutral position concerning responsibility of participants, not supposing attraction of participants when they deserve it, such creditors will necessarily suffer, as the public formation having the requirements on payment of obligatory payments if only the law and order does not give additional privileges to fiscal bodies at collecting of taxes and tax collections will suffer also.

Besides, possibility of a choice of the organisation-legal form at all does not transform imperative requirements into the optional. After all at purchase and sale making contract in loco [124] turnkey contracts of the party cannot neutralise action of mandatory provisions if only they do not change the contract to such degree, that relations of the parties will turn in qualitatively others, falling under regulation of other contractual type. Differently, there are no bases for a conclusion about optionality of a rule about limited liability, as well as for qualification of responsibility of participants as voluntary which exists in parallel with compulsory and falls under other legislative regulation though economically the end result and is similar. Besides, it is impossible to be guided by the conclusion of any transactions exclusively with the companies with unlimited or additional responsibility for in any developed law and order they constitute insignificant minority [125]. As to a choice and the maintenance of ways of maintenance of appropriate execution of contractual obligations (pledge, a guarantee etc.) it at all the question of the corporate right and such arguments are hardly pertinent at discussion of a question on the imperative nature of a rule about limited liability of participants of corporation.

1.3.

<< | >>
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 voluntary and compulsorily applied responsibility:

  1. § 2. Direct (voluntary) realisation of subjective legal responsibility
  2. 2.3. Obligatory and voluntary insurance of professional responsibility
  3. 5. APPLIED POSSIBILITIES OF THE THEORY OF SOCIAL RESPONSIBILITY OF THE INTEGRATED SUBJECTS OF ECONOMIC RELATIONS
  4. § 1. Features of voluntary execution of the decision and recommendations.
  5. § 1. Rules of the voluntary and obligatory offer
  6. stages of voluntary execution of recommendations
  7. tendencies of voluntary execution of recommendations
  8. 2.2.1. International legal regulation of voluntary migration of the persons moved as a result of adverse consequences of change of a climate
  9. Tugushev Rustam Rashidovich. Diminished responsibility: criminally-legal value and problems otgranichenija from responsibility and the limited responsibility. The dissertation on competition of a scientific degree of the master of laws. Saratov -,
  10. 1.2. Professional responsibility as a civil responsibility version, its concept, signs and kinds
  11. similarities and differences of administrative responsibility for infringements in sphere of taxes and tax collections in the Russian Federation from other kinds of legal responsibility
  12. §3. Criteria of responsibility. Legal (psychological) criterion. The intellectual moment. Responsibility and free agency: history and the present.