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1
Jurič, Dionis, and Mihaela Braut Filipovič. "Limited Liability Companies in Croatia." Central European Journal of Comparative Law 1, no. 1 (June 30, 2020): 69–85. http://dx.doi.org/10.47078/2020.1.69-85.
Анотація:
This article aims to provide an overview of the main features of the limited liability company (hereinafter: LLC) in Croatia. LLCs are the most common company type in Croatian business practices. This is because of low amounts of minimum sharecapital, limited liability of shareholders, freedom of shareholders to regulate own internal relations and the LLC’s internal organization, which is regulated by the articles of association and holds fewer formalities to function. Interestingly, most LLCs are established as a single shareholder LLC, followed by two and three shareholders LLCs. This supports the finding that Croatian LLCs are often closely held companies, whose founders also act as directors and employees of the company. Since 2012, it is possible to form a simple LLC for a minimum share capital of 10 KN (cca. 1.32 EUR), and as of 2020, LLCs can even be established online. Thus, the simplicity and cost effectiveness to establish an LLC remain its primary advantage. Mandatory provisions that shareholders must respect are inter alia capital requirements and capital maintenance, formation, and competencies of the management board and shareholders’ meeting. The shareholders’ meeting is superordinate to other LLC bodies, allowing directors to be appointed and dismissed at any time. Shares are alienable and inheritable, but their transfer may be limited by the LLC’s articles of association. In certain cases, shareholders can be held personally liable for the LLC’s obligations (e.g., in the event of abuse of limited liability, partial payment of capital contributions, and the LLC’s dissolution without liquidation). Further specifics and current challenges of LLCs in Croatia will be analysed in detail.
2
Tanaya, Velliana. "BENTUK KETERLIBATAN PEMEGANG SAHAM DALAM PERBUATAN MELAWAN HUKUM PERSEROAN TERBATAS YANG DAPAT MEMPERLUAS PERTANGGUNGJAWABANNYA." Law Review 17, no. 3 (May 4, 2018): 175. http://dx.doi.org/10.19166/lr.v17i3.834.
Анотація:
<p><em>Limited Liability Company is the most popular form of business entity in Indonesia because law acknowledges the principle of limited liability of its shareholders, which gives advantages for entrepreneurs running a business. Article 3 Subsection 1 Law No. 40 Year 2007 concerning Limited Liability Company stated that company’s shareholders are not personally liable for agreements made on behalf of the Company and are not liable for the Company’s losses in excess of their prospective shareholding. However, in Article 3 Subsection 2 there are some waivers of the principle, one of the exceptions is if the relevant shareholders are involved in illegal actions committed by the Company. It is interesting because in fact, usually, shareholder do not get involved in company’s management. Through normative research with Statute and Conceptual Approach on Piercing the Corporate Veil, shareholders can be accountable for personal responsibility if shareholders in giving his/her voting rights in General Meeting of Shareholders neglect his/her duty of care, or if besides of being shareholders he/she also become Board of Directors and/or Board of Commissioners who runs the Company’s management, or if the shareholders give order or command to Board of Directors or Board of Commissioners or company’s employee to perform actions that causing the Company committed an unlawful act and harm others (tort). Personal liability can be requested if injured party filing a tort lawsuit and set the relevant shareholders as a defendant besides the Company.</em></p>
3
Janků, Martin. "Liability of statutory organs in limited liability companies." Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis 59, no. 2 (2011): 121–28. http://dx.doi.org/10.11118/actaun201159020121.
Анотація:
Statutory organs of business companies (and similarly of co-operatives) have numerous obligations imposed by generally binding provisions; relied with these is the liability for non-fulfilment of the latter. Some of the obligations are imposed directly by the laws, some are assumed on contractual basis. Their infringements may lead to the liability for the situation and consequences occurred. The regulation of the liability of persons engaged in the company’s bodies covers persons that are entrusted by the management of foreign assets. Sometimes these are in fact not entirely foreign assets because, although the assets are legally owned by the business company, persons acting as statutory organs are mostly partners (shareholders) in these companies as well. As such they manage the foreign assets but the company properties were created by their contributions or through the business by themselves. The paper analyses the requirements laid down for the function of managing directors (jednatel) in the limited company. Consequently it analyses the scope of the liability of managing directors firstly, in relationship to the company’s creditors (persons standing outside the company) and, subsequently, in relationship to the shareholders. It also presents and characterises the recent trends in the Commercial Court’s judgement of the conditions required for the liability for damage and claims for damages put forward by action to recover damages by the managing directors. De lege ferenda the paper recommends that the legal regulation will be amended by provisions limiting the scope of persons to be appointed as executive director and/or extending the liability for damages for the partners of the company in cases where the damage in such cases can not be compensated by the executive director and the partners should bear consequences for their culpa in eligendo.
4
van der Pas, Jurian. "Getting Personal." European Journal of Comparative Law and Governance 1, no. 4 (November 14, 2014): 337–56. http://dx.doi.org/10.1163/22134514-00104002.
Анотація:
Pursuant to article 149 Company Law of the People’s Republic of China 2013 (clc), directors will be liable for the damages of the company if their actions violate the law, administrative regulations, or the company’s statutes. According to article 152 clc, directors will also face liability towards the company’s shareholders in case of a violating action that caused direct damages to the shareholders. Unfortunately, however, these provisions and their corresponding legal obligations are general and offer no procedural guidance, nor do they elaborate on the scope and extent of the directors’ personal liability. Furthermore, it is by and large ambiguous what the directors’ responsibilities are towards the creditors of the company. This article discusses this grey area of the clc by critically comparing it with the Dutch system of directors’ liability. Upon analysis, the author proposes to introduce a standard of fault in China to determine the scope and extent of the directors’ personal liability. In addition, the author argues that China should provide the company’s creditors with a direct action against the directors for compensation of their real damages.
5
Kurniawan, Mr. "TANGGUNG JAWAB PEMEGANG SAHAM PERSEROAN TERBATAS MENURUT HUKUM POSITIF." Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 26, no. 1 (June 25, 2014): 72. http://dx.doi.org/10.22146/jmh.16055.
Анотація:
Limited Liability Companies have completeness instrument called organ corporation which consists of General Meeting of Shareholders (GMS), the board of directors, and the board of commissioners. According to Commercial Law (KUHD), Act No. 1 of 1995 jo. Act No. 40 of 2007 on Limited Liability Companies, the principle liability of General Meeting of Shareholders (GMS) is limited on their share. But, if it is proven that, among others, there has been a mixing of the shareholder’s personal assets and the Company’s assets, so the limited liability turns into unlimited liability or personal liability. Perseroan Terbatas (PT) memiliki alat kelengkapan yang disebut organ perseroan terdiri dari Rapat Umum Pemegang Saham (RUPS), Direksi dan Dewan Komisaris. Menurut Kitab Undang-Undang Hukum Dagang (KUHD), UU PT No. 1 Tahun 1995 jo. UU PT No. 40 Tahun 2007, tanggung jawab Pemegang Saham (RUPS) pada prinsipnya adalah bersifat terbatas pada saham yang dimiliki. Akan tetapi, apabila dapat dibuktikan bahwa telah terjadi pembauran harta kekayaan pribadi Pemegang Saham dengan harta kekayaan perseroan, maka tanggung jawab terbatas tersebut akan berubah menjadi tanggung jawab tidak terbatas atau tanggung jawab pribadi.
6
Hendrawan, Daniel, Emilia Fitriana Dewi, Subiakto Sukarno, and Isti Raafaldini Mirzanti. "Application of the Principles of Business Judgment in the Authoritative Function of Directors of Limited Liability Company in Singaporean and Indonesian Legal Perspectives." Academic Journal of Interdisciplinary Studies 9, no. 3 (May 10, 2020): 93. http://dx.doi.org/10.36941/ajis-2020-0044.
Анотація:
The purpose of this study is to analyze the functions and authority of the director of limited liability company in applying business judgment principles, by taking comparative law studies in Singapore's common law and in Indonesia's civil law. By taking emphasis on the authority of directors in representing limited companies both in and out, there are several authorities that are regulated in it. This study was conducted with a comparative law approach, with descriptive qualitative analysis. The results showed that sometimes directors act outside their authority and can harm a limited liability company. On the other hand, that there are actions of the board of directors that are in accordance with their authority but still harm the limited liability company. In this case, the shareholders often hold accountable. In corporate law there is a principle of business judgment where a director cannot be held accountable if the directors are proven to have good faith. The difference between Singapore law and Indonesian law in regulating the authority of directors is the good faith assessment held by directors.
7
Casper, Matthias. "Liability of the Managing Director and the Shareholder in the GmbH (Private Limited Company) in Crisis." German Law Journal 9, no. 9 (September 1, 2008): 1125–40. http://dx.doi.org/10.1017/s2071832200000353.
Анотація:
The insolvency of a company does not arrive suddenly. Normally, insolvency precedes a crisis. At present, the term “crisis” is defined in § 32 a sec. 1 of the Gesetz betreffend die Gesellschaften mit Beschränkter Haftung (GmbHG – Private Limited Companies Act) as the point when the company does not receive any credits according to the usual conditions in the particular market and when the shareholders provide the company with further shareholder capital instead of debt capital. Besides the rules governing shareholder capital substitution, which will be omitted due to the upcoming reform of private limited companies, there are few legal guidelines that regulate the standards of conduct for managing directors and shareholders in the case of a crisis. In particular, § 49 sec. 3 GmbHG needs to be singled out. This paragraph establishes an obligation to call a shareholder meeting if more than half of the capital stock is lost. If an adverse balance arises because of the payouts to the shareholders, the protections of §§ 30, 31 GmbHG will intervene. An adverse balance results when there is insufficient capital to cover the liabilities, ownership's equity, and guaranteed capital. However these protections often do not suffice.
8
Poiedynok, V. V., and I. V. Kovalenko. "RESPONSIBILITY OF DIRECTORS IN BANKRUPTCY PROCEDURES UNDER EU LAW AND INDIVIDUAL MEMBER STATES OF EU." Economics and Law, no. 1 (April 15, 2021): 48–60. http://dx.doi.org/10.15407/econlaw.2021.01.048.
Анотація:
The Bankruptcy Proceedings Code of Ukraine provides for the possibility of imposing liability under the obligations of the debtor – a legal person on the founders (stakeholders, shareholders) or other persons who have the right to give mandatory instructions to the debtor or have the opportunity to otherwise determine his actions. As a result, "comfortable" organizational forms of companies, such as LLCs and JSCs, have become risky for investors; managers, who may be employees, bear risk too. The article analyzes the legislation of the EU and some EU member states (Germany, France, Spain, the Netherlands, Latvia, Romania), concerning the liability of individuals in insolvency proceedings. We find that the rules on such liability are not harmonized at the EU level; as for individual countries, their laws do provide for the possibility of holding both de jure and de facto directors, whereas the latter may include the founders (stakeholders, shareholders) of the company, for the debts of the company. At the same time, the legislation of European countries describes in great detail the conditions and procedure for imposing such liability, which makes the risks for the individuals concerned predictable. Moreover, special rules on liability in insolvency proceedings are systematically linked to the provisions of company law, which establish the obligation of directors to act with due diligence in the interests of the company and liability for knowingly making business transactions with the knowledge that the company is insolvent (wrongful trading). In Ukraine, there are absolutely no specific legal provisions on the conditions and procedure for holding even de jure directors to liable in insolvency proceedings, not to mention the founders (stakeholders, shareholders) of companies, which creates a situation of legal uncertainty. To eliminate it, the legislation of Ukraine should define: the range of individuals on whom such liability may be imposed; a specific list of actions, the commission of which may give rise to liability; the need to prove the guilt of such individuals; forms of guilt sufficient to be held liable (only intent or also negligence); procedural rules for establishing guilt, including the issue of the burden of proof; who may lay claim to a director (insolvency administrator, creditor, court); statutes of limitations on the liability of directors, etc.
9
NINGRUM, LESTARI. "The Linkage of the Board of Directors and the Status of Aviation Industry Licensing Law." JURNAL MANAJEMEN TRANSPORTASI DAN LOGISTIK 3, no. 1 (July 25, 2017): 1. http://dx.doi.org/10.25292/j.mtl.v3i1.138.
Анотація:
Aviation business is a capital intensive and high risk in terms of safety. Legislation in force in Indonesia requires enterprises should cost in the form of a limited liability company that is obliged to deposit the basic capital of 500 billion rupiah. The capital cannot be made in working capital which is useful for the collateral to a third party. The regulations for a limited liability company are to be established by at least 2 people. The purpose of this research is to analyze the linkage of the board directors and the status of aviation industry licensing law. The position of the legal status of business entities where shareholder is only one person is to be studied in this descriptive study. The result shows that the airlines company should provide the capital risk and high insurance of the third party. UUPT also has given the authority of the shareholders (who owns 20 % of the share) to be decision makers in the company. However, without independent surveillance, it is possible that the shareholders do some mistakes in making decisions. Some mistakes are related to the policy, the using of authorized capital, and others. Aviation business is a capital intensive and high risk in terms of safety. Legislation in force in Indonesia requires enterprises should cost in the form of a limited liability company that is obliged to deposit the basic capital of 500 billion rupiah. The capital cannot be made in working capital which is useful for the collateral to a third party. The regulations for a limited liability company are to be established by at least 2 people. The position of the legal status of business entities where shareholder is only one person is to be studied in this descriptive study.
10
Nuranda, Bima, Anita Afriana, and Holyness N. Singadimedja. "STATUS HUKUM PEKERJA YANG DIANGKAT MENJADI ANGGOTA DIREKSI PADA PERSEROAN TERBATAS TANPA ADANYA PENGAKHIRAN PERJANJIAN KERJA." Perspektif Hukum 19, no. 1 (July 5, 2019): 33. http://dx.doi.org/10.30649/phj.v19i1.189.
Анотація:
<em>The appointment of a director in a Limited Liability Company can be chosen from its own workers. In reality, this raises a legal problem when the worker appointed to the Board of Directors is dismissed by the General Meeting of Shareholders (GMS), while the termination has been regulated in Law Number 40 of 2007 concerning Limited Liability Companies, but when workers appointed as members of the board of directors do not accept such dismissals, the aforementioned directors choose to submit the fulfillment of their workers’ rights as stipulated in Law Number 13 of 2003 concerning Employment. From this problem, it can be inferred that there is a lack of clarity regarding the legal status of a worker who is appointed as a board of directors through GMS and the legal consequences when the worker appointed as director is dismissed.</em>
11
Stanley, C. "The personal liability of directors to third parties and shareholders." Trusts & Trustees 19, no. 5 (June 1, 2013): 388–429. http://dx.doi.org/10.1093/tandt/ttt079.
12
Rajak, Harry H. "Director and Officer Liability in the Zone of Insolvency; A Comparative Analysis." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 1 (June 26, 2017): 30. http://dx.doi.org/10.17159/1727-3781/2008/v11i1a2751.
Анотація:
It is the duty of the directors of a company to run the business of the company in the best interests of the company and its shareholders. In principle, the company, alone, is responsible for the debts incurred in the running of the company and the creditors are, in principle, precluded from looking to the directors or shareholders for payment of any shortfall arising as a result of the company's insolvency. This principle has, in a number of jurisdictions undergone statutory change such that in certain circumstances, the directors and others who were concerned with the management of the company may be made liable to contribute, personally, to meet the payment – in part or entirely – of the company's debts. This paper aims to explore this statutory jurisdiction. It also seeks to describe succinctly the process by which the shift from unlimited to limited liability trading was achieved. It will end by examining briefly a comparatively new phenomenon, namely that of a shift in the focus of the directors' duties from company and shareholders to the creditors as the company becomes insolvent and nears the stage of a formal declaration of its insolvent status – the so-called 'zone of insolvency'.
13
Andy Hartanto, Joseph, and Sulaksono Sulaksono. "Applications of good corporate governance relating to shareholders, commissioners, and directors of limited liability companies in Indonesia." Problems and Perspectives in Management 17, no. 3 (September 23, 2019): 410–20. http://dx.doi.org/10.21511/ppm.17(3).2019.33.
Анотація:
This critical analysis seeks to explore the inclusivity and feasibility of the legal application of organizational governance principles related to limited liability companies (LLCs) in Indonesia, which are considered essential pillars of Indonesia’s economic stability. The investigators employed the non-probability purposive sampling to select 150 study participants from a population of 250 administrative panel members working in PT Bank Rakyat Indonesia and PT Bank Mandiri. Structured and semi-structured questionnaires were constructed and distributed online through emails. The subjects’ responses were coded manually, using the NVivo software for ease of analysis. The result showed that (1) 84.5% of participants believed that ineffective relationship building approaches, corruption, and inadequate information disclosure mechanisms among internal and external shareholders formed the main challenges to implementation of corporate governance principles in Indonesian LLCs, (2) 97.8% of the respondents believed the Indonesian Company Law (ICL) had achieved significant milestones in guiding the application of sound corporate governance principles by explicitly outlining the roles and responsibilities of stakeholders and providing sufficient protection for minority stakeholders, and (3) 78% of participants agreed that the ICL has introduced and reinforced critical rights and protections to shield shareholders from unfair regulations internally formulated by a company. In its findings, the investigation confirmed that poorly structured information sharing systems, fraud, and ineffective relationship building were the main factors that contributed to current inadequacies. 84.5% of the respondents believed that ineffective relationship building approaches, corruption, and inadequate information disclosure mechanisms among internal and external shareholders formed the main challenges, trends, and issues to the implementation of corporate governance principles in Indonesian LLCs. The study also confirmed that the implementation of GCG related legislations had reinforced the professional duties and obligations of stakeholders, alongside offering legal protections for minority business actors.
14
Lubis, Ikhsan, and Neneng Oktarina. "PERLINDUNGAN HUKUM TERHADAP DIREKSI YANG DIBERHENTIKAN TANPA MELALUI RAPAT UMUM PEMEGANG SAHAM (Studi Pada PT. Sumber Andalan Mandiri (SAM))." UNES Law Review 1, no. 2 (December 26, 2018): 172–83. http://dx.doi.org/10.31933/law.v1i2.25.
Анотація:
One of the most incorporated legal entities as a business entity by business people today is a Limited Liability Company. In practice the mechanism for the appointment, replacement, and dismissal of the Board of Directors is not always adhered to properly by the Company's organs. In the case of PT. SAM with Phiedi as Director of PT. SAM has permanently and permanently dismissed one member of the Board of Directors from his position as a director without going through the GMS. Legal facts, the existence of e-mail dated April 22 and 24 2014 which essentially contained the dismissal of the Directors of PT. SAM is permanent or permanent. This paper discusses several problem formulations, namely: 1) What is the legal protection of directors who are dismissed without going through a general meeting of shareholders according to the positive legal framework in Indonesia? 2) What is the legal effort made by the directors who are dismissed without going through a general meeting of shareholders? This research is a descriptive research. The approach used in this study is a normative juridical approach supported by an empirical juridical approach. The data used in this study are secondary data and primary data. Against all data and materials obtained from the results of the study will be compiled and analyzed qualitatively. The results of the study explain that legal protection against directors who are replaced by directors who are dismissed without going through the GMS then: 1) Each member of the board of directors is personally responsible for the loss of the company; 2) Personal responsibility is attached to the member of the board of commissioners if he is guilty or negligent in carrying out the duties of supervision or giving advice; 3) Although the loss arises from the management of the board of directors, the members of the board of commissioners remain personally responsible if in the supervision of the implementation of the management of the board of directors there is an element of error or negligence of the board of commissioners; and 4) The extent of personal responsibility of the members of the board of commissioners, limited to their mistakes or negligence, and fifth, if the members of the board of commissioners consist of 2 (two) or more, personal responsibility, is jointly responsible for each member of the board of commissioners. Legal efforts made by directors who are dismissed without going through a general meeting of shareholders, then upon dismissal of the Board of Directors without the GMS, the Commissioner must immediately convene an Extraordinary General Meeting of Shareholders to follow up on the temporary dismissal of the Board of Directors by the Board of Commissioners, then as soon as possible the Board of Commissioners calls the shareholders in the framework of the Extraordinary GMS to strengthen its decision. Considering that the Director is a majority shareholder, of course the ordinary GMS will not succeed because there is a quorum rule and the validation of the vote
15
Mohd-Sulaiman, Aiman Nariman, and Mohsin Hingun. "Liability risks in shareholders’ engagement via electronic communication and social media." International Journal of Law and Management 62, no. 6 (June 19, 2020): 539–55. http://dx.doi.org/10.1108/ijlma-06-2019-0137.
Анотація:
Purpose This paper aims to examine the potential liability of companies and their board members arising from the use of digital technology and social media as communication and engagement tools with investors and shareholders. Design/methodology/approach The research relies on a qualitative study using legal analysis of corporate and capital market laws as well as the outcome of legal proceedings and regulatory actions to ascertain conduct that could expose companies and boards to liability risks. Findings Social media characteristics expose unwary directors and companies to potential liability for oppressive conduct, selective disclosure or misleading statements. Research limitations/implications This paper informs boards and companies of the types of conduct that could expose companies and boards to liability when social media is relied on to communicate with shareholders and investors. Originality/value The paper contributes to the literature on social media, capital market and corporate communication by presenting the legal perspective concerning reliance on social media as shareholders’ engagement and corporate communication tool.
16
Nowland, John. "Shareholder rights, telecommunications and director attendance around the world." Accounting Research Journal 32, no. 2 (July 1, 2019): 221–35. http://dx.doi.org/10.1108/arj-03-2018-0047.
Анотація:
Purpose This study aims to document the variation in director attendance rates around the world and investigate the influence of cross-country differences in law and infrastructure on director attendance practices. Design/methodology/approach Director attendance data are hand-collected from company annual reports and are related to differences in shareholder rights, director liability and transportation and telecommunications infrastructure across countries. Findings Using a hand-collected data set of 4,344 directorships from 33 countries, the results indicate that director attendance is significantly lower in emerging markets and is positively related to the extent of shareholder rights and the quality of telecommunications infrastructure. Originality/value For policymakers and shareholders, the findings of this study indicate that there is substantial variation in director attendance practices around the world. Across all markets, director attendance is higher when the telecommunications infrastructure better enables the potential for virtual attendance, thereby allowing directors to participate in meetings when they cannot be physically present. In emerging markets, director attendance is also higher where there is a stronger emphasis on shareholder rights, highlighting an avenue for improved director attendance by strengthening shareholder involvement in major corporate decisions.
17
Ugoani, John Nkeobuna Nnah. "Effective board management and good corporate performance in nigerian public liability companies." Independent Journal of Management & Production 11, no. 1 (February 1, 2020): 110. http://dx.doi.org/10.14807/ijmp.v11i1.1013.
Анотація:
The need for effective board management and good corporate performance lies at the heart of good corporate governance theory because as the agency theory contends the managers’ interest and the interest of shareholders are not almost always the same. Good corporate performance is the basis of the business as reflected through enhanced shareholder value measured by return on investment, return on assets or return on equity. Effective board management necessary for good corporate performance requires significant dose of emotional intelligence competencies such as integrity, transparency and loyalty. Such will ensure that the board of directors exercises internal control through effective monitoring roles aimed at protecting shareholders’ interest as contemplated by the principles of good corporate governance. Ninety seven individuals participated in the study conducted through the exploratory research design. Data were analyzed through descriptive and regression statistical techniques and it was found that effective board management has significant positive correlation with good corporate performance. There is need for more understanding in this area, therefore further study could examine the relationship between corporate fraud and incessant bank failures in Nigeria despite various regulatory interventions. Consequent on the result of this study, it was suggested that the appointment of members of the board of directors of public liability companies in Nigeria must not be done without consideration to relevant experience.
18
Knapp, Vanessa. "Sustainable Corporate Governance: A Way Forward?" European Company and Financial Law Review 18, no. 2 (April 1, 2021): 218–43. http://dx.doi.org/10.1515/ecfr-2021-0010.
Анотація:
Abstract This article looks at proposals to improve sustainable corporate governance of companies. These include: how to deal with shareholder primacy; a proposed requirement for companies to have an overarching purpose “to create sustainable value within planetary boundaries;” a directors’ duty to promote the undertaking’s interests to fulfil its overarching purpose; a directors’ duty to balance stakeholders’ interests; a duty to undertake a due diligence sustainability assessment; company and director liability for breaches; stakeholder enforcement of directors’ duties and public enforcement of directors’ duties. It considers problems with the proposals. It suggests alternative ways to make companies’ corporate governance more sustainable, including: improved corporate reporting relating to engagement with key stakeholders and how this contributes to the company’s long-term sustainability; better viability reporting by companies; reporting on capital allocation; better stewardship similar to the UK Stewardship Code 2020; more collaborative engagement by shareholders with companies in a manner similar to that promoted by the UK Investor Forum; making requisitioning of resolutions work better in practice; and, possibly, a vote on whether the company is creating sustainable value in the long term (a say on sustainability).
19
Khan, Shereen, Nasreen Khan, and Olivia Swee Leng Tan. "DIRECTORS’ DUTY AND LIABILITY IN INSOLVENT TRADING." International Journal of Law, Government and Communication 5, no. 21 (December 6, 2020): 130–37. http://dx.doi.org/10.35631/ijlgc.5210010.
Анотація:
The effect of the novel coronavirus (Covid-19) pandemic has resulted in current and future liquidity, balance sheet, and cash flow problems. There is an anticipated decline in the profitability of the businesses during this uncertain period and attention has been turned to the directors’ ‘duties and liabilities’ to creditors when the company is on the verge of insolvency. Directors have to strike a balance among the shareholders, creditors, and workers in the corporate restructuring process. In engaging with these stakeholders during the transformation process, the directors play a key role. It is about quick choices and decisions to be taken to save a business on the verge of insolvency, and it is therefore vital that directors act at the first sign of financial distress. There is a general duty for directors not to trade when insolvent or close to the point of insolvency. Directors also have a contractual obligation to avoid insolvent trading. This article discusses the duties of directors under the Companies Act 2016 (CA 2016) to avoid insolvent trading. It further discusses by analysing based on the comparative study with other selected jurisdictions. This article proposes that while it is important to protect creditors’ interest by making the directors personally liable for insolvent trading, for the best interest of all stakeholders, there should be a balance between the security of creditors and the rescue of the company.
20
Ridyard, Richard. "Carrots and sticks in bank governance: time for a bigger stick?" Journal of Financial Regulation and Compliance 28, no. 4 (June 7, 2019): 527–39. http://dx.doi.org/10.1108/jfrc-05-2018-0084.
Анотація:
Purpose This paper aims to investigate how bank governance can be altered to reduce risk taking and engender greater financial stability. Design/methodology/approach The paper reviews existing bank governance arrangements, contemporary challenges and alternative reforms. Findings It is argued that recent reforms are incomplete. Greater countervailing incentives for bank managers and shareholders are required. This prompts an inquiry into the merits and demerits of four types of reform: changes to executive compensation arrangements; the introduction of a liability standard for directors; the removal of limited liability for bank shareholders; and a criminal offence for managers. Originality/value Discussion illumines several problems with the current approach to bank governance and provides insights that can help direct future reform.
21
Murphy, Deborah L., and J. Edward Murphy. "Protecting the Limited Liability Feature of Your Family Business: Evidence from the U.S. Court System." Family Business Review 14, no. 4 (December 2001): 325–34. http://dx.doi.org/10.1111/j.1741-6248.2001.00325.x.
Анотація:
One of the benefits cited for the organizational structure of a corporation or limited liability company is the limited liability feature associated with these forms of organization. However, our legal system contains a judicial doctrine known as piercing the corporate veil, which essentially asks the courts to disregard the limited liability feature of the organization and impose personal liability on the shareholders, officers, andqor directors. This study provides evidence regarding the extent to which the U.S. courts have ruled to pierce the corporate veil and suggests steps that family-owned businesses can take to minimize this potential risk.
22
Herzberg, Abe, and Helen Anderson. "Stepping Stones — from Corporate Fault to Directors' Personal Civil Liability." Federal Law Review 40, no. 2 (June 2012): 181–205. http://dx.doi.org/10.22145/flr.40.2.3.
Анотація:
Several recent cases have seen the courts approving ASIC's employment of a ‘stepping stone’ approach that applies directors‘ statutory duty of care as well as their other statutory duties in a novel context. The first ‘stepping stone‘ involves an action against a company for contravention of the Corporations Act 2001 (Cth). The establishment of corporate fault may then step stone to a finding that by exposing their company to the risk of criminal prosecution, civil liability or significant reputational damage, directors contravened one or more of their statutory duties in ss 180-2 of the Corporations Act, particularly their statutory duty of care, with the attendant civil penalty consequences. The effect of the ‘stepping stone’ approach is that directors may face a type of derivative civil liability for corporate fault. In this paper we analyse the stepping stone approach and assess the justification for imposing civil liability on directors for their company's misbehaviour. This paper also examines whether an extension of the stepping stone approach could make directors liable for their company's contraventions of non-Corporations Act laws as well as open the floodgates to make directors personally liable to shareholders, creditors, employees, or others affected by corporate fault.
23
Farrington, Matthew. "A Closely-Held Companies Act for New Zealand." Victoria University of Wellington Law Review 38, no. 3 (November 1, 2007): 543. http://dx.doi.org/10.26686/vuwlr.v38i3.5534.
Анотація:
This paper examines the law relating to closely-held companies. It concludes that the Companies Act's regulatory requirements imposed on directors to ensure accountability to shareholders do not have any benefit where companies are closely-held. The costs arising from such regulatory requirements are therefore unjustified. The paper therefore argues that New Zealand should adopt a new flexible and accessible statute designed to meet the needs of closely-held companies. This statute should be in addition to the existing Companies Act, and should be informed by comparative precedent. This paper argues that the key features of this statute should include removing the distinction between shareholders and directors. This in turn removes the need to impose regulatory requirements on directors in favour of shareholders. The other features relating to defining a closely-held company, limited liability, protections for creditors, and relations between "principals" are also considered in this paper. The net result is a simple, straightforward set of requirements suitable for closely-held companies in New Zealand, without onerous or unjustified compliance requirements.
24
Lennarts, Loes. "Directors’ and Shareholders’ Liability as a Means of Protecting Creditors of the BV." European Business Organization Law Review 8, no. 1 (March 2007): 131–41. http://dx.doi.org/10.1017/s1566752907001310.
25
Ziegel, Jacob S. "Is incorporation (with Iimited Iiability) too easily available ?" Les Cahiers de droit 31, no. 4 (April 12, 2005): 1075–94. http://dx.doi.org/10.7202/043055ar.
Анотація:
The incorporation of new businesses in Canada is remarkably cheap and easy, both under the Canada Business Corporations Act and under the provincial corporations statutes. The benefits conferred on shareholders by incorporation are obvious and well known, particularly the advantage of limited liability. Easy incorporation however also imposes significant burdens on the corporation's voluntary and involuntary creditors if the corporation cannot meet its liabilities. The author examines the various statutory and judicially created techniques for restraining the abuse of the corporate form, and finds them seriously deficient. Nevertheless, he sees no likelihood of the legislature reversing a century old trend either by making incorporation much more difficult or by denying directors or shareholders in closely held corporations the protection of limited liability. He concludes therefore that ''second order'' remedies are much more realistic, even if less efficient. He also recommends several new remedies, including the requirement that all corporations must file a copy of their financial statements in a public office and that directors will be held personally responsible for the corporation's debts if the corporation continues to trade when it is clear that it is insolvent and likely to remain so.
26
Wahab, Bella Mutiara. "PROGRESIFITAS HUKUM PENGEMBALIAN DEVIDEN SAHAM INTERIM PERSEROAN TERBATAS PADA UUPT NO.40 TAHUN 2007." Legal Standing : Jurnal Ilmu Hukum 5, no. 1 (January 23, 2021): 1. http://dx.doi.org/10.24269/ls.v5i1.3552.
Анотація:
AbstractProgressive law must place the law in a very close position with the law's community or stakeholders. This position is called responsive, progressive law and is always associated with stakeholders' reality and needs to create justice and happiness as law aspired itself. Also, progressive law emphasizes social integration to overcome public moral insularity.Starting from the viewpoint of progressive law, the author looks at the laws and regulations that discuss the return of interim dividends as stated in the Limited Liability Company Law No. 40 of 2007, article 72, article 72 states that companies allow rules related to dividend distribution in a temporary (interim) way. The article is then interpreted as that if the company has positive profits, the company is allowed to distribute dividends before the company closes the book at the end of the year, provided that the board of directors officially announces the distribution with the approval of the GMS that the positive profits obtained by the company before closing the book will come as dividends interim. As a result, the company competes to distribute interim dividends to increase and show its credibility to investors. It was recorded on the Indonesian stock exchange (IDX) that in September 2020, 73 companies distributed interim dividends.However, article 72 paragraph 5 of the Limited Liability Company Law No. 40 of 2007 explains that if after the company distributes interim dividends to shareholders and at the end of the closing of the annual book the company suffers a loss, the shareholders must return the dividends they have received. If the shareholder does not return it, the directors and commissioners are jointly responsible for covering the company's losses.This viewpoint is the basis for finding the location of the value and form of legal progressivity regarding the mechanism of interim share dividends in limited liability companies as stated in UUPT No.40 of 2007 Article 72 using a normative research method with a conceptual approach.
27
Brook, Yaron, and Ramesh K. S. Rao. "Shareholder Wealth Effects of Directors' Liability Limitation Provisions." Journal of Financial and Quantitative Analysis 29, no. 3 (September 1994): 481. http://dx.doi.org/10.2307/2331341.
28
Dewi, Sandra. "MENGENAL DOKTRIN DAN PRINSIP PIERCING THE CORPORATE VEIL DALAM HUKUM PERUSAHAAN." Soumatera Law Review 1, no. 2 (October 31, 2018): 380–99. http://dx.doi.org/10.22216/soumlaw.v1i2.3744.
Анотація:
Business entities in the business world are well-known that are already in the form of companies or those that are not yet companies. Based on its legal form, the company is divided into two, namely companies with legal status and those that are not legal entities. As an independent legal entity pursuant to Article 3 paragraph (1) the Limited Liability Company Law stipulates that the responsibility of PT shareholders is limited to the value of shares held in the company. Economically, the element of limited liability of the company's shareholders is an important factor as a motivating bait for the willingness of prospective investors to invest in the company. The formulation of the problem in this paper is: 1) how the piercing doctrine of the corporate veil in corporate law and 2) how to apply the principle of piercing the corporate veil in Indonesia. The type of writing used in this writing is a type of normative legal research. The doctrine of piercing the corporate veil in corporate law can be seen from: a) piercing the corporrate veil; b) the doctrine of fiduciary duty; c) self dealing transaction doctrine; d) doctrine corporate opportunity; e) doctrine businnes judgment rule; f) ultra vires and intra vires. Application of the Piercing Principles of the Corporate Veil in Indonesia: a) company shareholders; b) company founder; c) company directors; and d) commissioners of limited liability companies.
29
Phiri, Siphethile. "Piercing the corporate veil: A critical analysis of section 20(9) of the South African Companies Act 71 of 2008." Corporate & Business Strategy Review 1, no. 1 (2020): 17–26. http://dx.doi.org/10.22495/cbsrv1i1art2.
Анотація:
When a company is incorporated it becomes a juristic entity with rights and obligations of its own and is distinct from its shareholders and directors. Hence, company liabilities are not those of its shareholders and directors. However, section 20(9) of the Companies Act 71 of 2008 grants the court the discretion to disregard the corporate veil where there is an unconscionable abuse of the juristic personality so as to impose personal liability upon directors or any other person involved in that transaction. However, the section fails to define what constitutes “unconscionable abuse” which is the key to the application of that provision. This research thus seeks to discover what constitutes unconscionable abuse of the juristic personality. Simply put, this research aims to identify the circumstances under which the corporate veil may be pierced. The results from this extensive inquiry are that the term ‘unconscionable abuse’ is a legislative derivate from the various terms used by the courts at common law to justify the disregarding of the separate legal personality of the corporate entity. Therefore, the inescapable conclusion reached is that just as those terms used at common law are confounding, so shall this rather legislative innovation remain to be confounding until a specific meaning is assigned to it by the parliament.
30
Hansen, David. "Sustainable Corporations in Non-Financial Sectors Through Optimal Design of Executive Pay." German Law Journal 14, no. 7 (July 1, 2013): 715–48. http://dx.doi.org/10.1017/s2071832200002005.
Анотація:
It is commonplace in current legal scholarship that pay packages for executives that were not tied to the impact of these executives' policies on shareholder wealth maximization often caused harm to shareholder interests and their companies, especially in the long term. The no-pay-without-performance postulate is as old as the first global economic crisis of the 20thcentury – the deep depression. Since then, this postulate has been repeated and substantiated innumerous times by the majority of experts in corporate law and business economics, but without real success. There are, however, commentators who deny the existence of a link between skewed incentive pay, excessive risk-taking, and financial losses. They instead insist on the superiority of the traditional director-centric model of corporate governance, which would allegedly preserve the balance that has generally worked well between the limited role and limited liability of shareholders and the active role, fiduciary duties, and potential liability of managers, which allegedly renders additional executive pay regulation unnecessary.
31
Mashdurohatun, Anis, Lenny Mutiara Ambarita, and Gunarto. "Reconstruction of Roles and Responsibilities of The Board of Directors in Share Repurchase in Limited Liability Company Based on Fair Values." JOURNAL OF SOCIAL SCIENCE RESEARCH 15 (January 25, 2020): 27–33. http://dx.doi.org/10.24297/jssr.v15i.8527.
Анотація:
This research aims to find out the roles and responsibilities of the board of directors in repurchasing shares in limited companies that have not been fair and to reconstruct the roles and responsibilities of the board of directors in repurchasing shares in limited companies based on fair values. This research is a sociolegal research, that is, an alternative approach that tests doctrinal studies of law. The word 'socio' in sociolegal represents the correlation between the context in which the law is located (an interface with a context within which law exists). It was found that the Board of Directors is jointly and severally liable for losses suffered by shareholders in good faith, arising from repurchases that are null and void due to the law. This does not provide fair/balanced legal protection for the parties. The fair values in buying shares are to provide balanced and proportional legal protection. Reconstruction of the roles and responsibilities of the Board of Directors in the repurchase of shares in a limited company based on fair values by carrying out reconstruction of Article 37 paragraph (3) and (5) of Law Number 40 Year 2007 concerning Limited Liability Companies.
32
Alanazi, Badar Mohammed Almeajel. "Piercing the corporate veil in various jurisdictions – Principled or unprincipled?" Corporate Board role duties and composition 16, no. 2 (2020): 47–53. http://dx.doi.org/10.22495/cbv16i2art4.
Анотація:
The principle of limited liability of a company has been uniformly adopted by developed countries. In order to ensure a fair balance, the courts agree on occasion to ‘pierce’ or ‘lift’ the corporate veil, which involves imposing liability on the mother company for actions of its subsidiary or individual shareholders, directors, and other involved persons for actions of the company. In this regard, there have been several studies arguing the legal issues associated with the limited liability of a company and piercing the corporate veil such as Schall (2016) and Michoud (2019). This paper compares current veil-piercing practices in three jurisdictions: the UK, the US, and Australia in order to outline the advantages and limitations of the approaches taken by the courts in each country as well as to identify best practices in terms of veil piercing. For that purpose, an analytical approach to the examination of the relevant legal rules, principles, and court cases has been adopted in undertaking the present paper. The paper comes up with a number of specific suggestions and recommendations for improving the regulatory role in regard to the subject of piercing of the corporate veil.
33
Tokhadze, Ana. "Transforming Georgia’s regulations on Shareholders’ right to interim dividend Confronting the European Company Law." TalTech Journal of European Studies 10, no. 2 (September 1, 2020): 57–74. http://dx.doi.org/10.1515/bjes-2020-0015.
Анотація:
Abstract The article provides a critical legal analysis of Georgia’s regulations on the interim dividend payment and highlights the necessity of proper amendments to comply with European company law. Since having an EU-Georgia Association Agreement signed, the dynamic process of Europeanization has put various legislative changes on the agenda, which also regard shareholders’ proprietary rights. This article briefly gives a novel insight into the distribution of interim dividends from a comparative point of view. It suggests the possibly scrutinized coverage of the legal preconditions along with liability consequences for the interim dividend declaration from the perspective of both shareholders and joint stock companies in Georgia. The article emphasizes the structure of the corporation, which naturally bedrocks the potential conflict of interests between the shareholders and creditors. The topic also endorses questioning Georgia’s rules on capital maintenance in relation to the interim dividend distribution. Hence, the study reveals prevailing regulatory lapses and makes pertinent recommendations on the alignment of the financial interests of those mentioned. Last but not least, the article exposes how directors on the credible basis of their fiduciary duties are assigned to divert assets of the corporation since their rationality in decision-making is expected to meet the best interests of the company.
34
Borselli, Angelo, and Ignacio Farrando Miguel. "Corporate Law Rules in Emergency Times Across Europe." European Company and Financial Law Review 17, no. 3-4 (September 14, 2020): 274–317. http://dx.doi.org/10.1515/ecfr-2020-0015.
Анотація:
This paper explores corporate law rules adopted in some European states amidst the COVID-19 pandemic, in order to track the major reform trends and consider how corporate law in Europe has adjusted to the emergency. The analysis focuses primarily on the U.K., Germany, France, Italy and Spain; occasionally, depending also on the relevant rules actually introduced by the states, other systems are considered as well. The paper groups the emergency measures into three main categories that include rules aimed at facilitating shareholders’ meetings and meetings of the board of directors, rules relaxing directors’ duties and liability and giving directors some leeway as companies face unprecedented challenges and uncertainties, and rules designed to support corporate liquidity. The analysis shows that while some points of similarity exist among the emergency rules considered, there are nevertheless numerous differences in their nature, scope, technicalities, and also timing. These differences emphasize a lack of coordination at the European level. The discussion also sheds light on the potential of some emergency measures to call traditional corporate law rules into question and last in what will be the new normal after the crisis.
35
Mentari, Nikmah. "PERTANGGUNGJAWABAN INDIVIDU ATAS GANTI RUGI DISGORGEMENT YANG MELIBATKAN EMITEN." Arena Hukum 13, no. 3 (December 31, 2020): 501–27. http://dx.doi.org/10.21776/ub.arenahukum.2020.01303.6.
Анотація:
The Financial Services Authority (OJK) launched a discourse by issuing an RPOJK regarding the Disgorgement and Disgorgement Fund. The parties that can be subject to disgorgement are the perpetrators of the violations themselves, including the Issuer as a public limited liability company. However, if the Issuer commits a violation, it is reasonable for the order to be addressed to the in persona (private individual), considering the Issuer is an artificial person who has no will and cannot have a will without the party carrying out behind the scenes. Directors, Commissioners and major shareholders (controllers) are parties who are allowed to commit violations and at the same time enjoy illegal profits from the violation. However, affiliated parties may commit violations involving the Issuer, so if there is an illegal profit, those who enjoy the benefit should be obliged to compensate the disgorgement. The issuer as a public limited liability company has also received administrative sanctions by both the OJK and the stock exchange. It is very unfair for the Issuer to be responsible for paying disgorgement compensation.
36
Rissy, Yafet Yosafet W. "DOKTRIN PIERCING THE CORPORATE VEIL: KETENTUAN DAN PENERAPANNYA DI INGGRIS, AUSTRALIA DAN INDONESIA." Refleksi Hukum: Jurnal Ilmu Hukum 4, no. 1 (October 31, 2019): 1–20. http://dx.doi.org/10.24246/jrh.2019.v4.i1.p1-20.
Анотація:
This article discusses about provisions and application of the Piercing The Corporate Veil (PVC) doctrine in the United Kingdom, Australia and Indonesia. The main issue is when and how the courts apply the PVC doctrine, also whether the doctrine can be applied outside the courts or not. In some states such as the United Kingdom and Australia which exercise common law tradition, the courts may apply the PVC doctrine on share holders and directors when there is an exceptional circumstance which requires to apply the doctrine. Similar to both states, Indonesia, through the Indonesian Supreme Court, has already applied the doctrine long before the law on Limited Liability Company was enacted. In 1998, a unique legal case about the Liquidity Aid of Bank Indonesia shows a phenomenon that was beyond the normal understanding of the Law. In that time, the Indonesian Bank Restructuring Agency applied an out-of-court settlement model to hold shareholders' liability. Finally, this article recommends that a legal and economic study should be considered to examine the effectiveness of this approach.
37
Mentari, Nikmah. "PERTANGGUNGJAWABAN INDIVIDU ATAS GANTI RUGI DISGORGEMENT YANG MELIBATKAN EMITEN." Arena Hukum 13, no. 3 (December 31, 2020): 501–27. http://dx.doi.org/10.21776/ub.arenahukum.2020.01303.6.
Анотація:
The Financial Services Authority (OJK) launched a discourse by issuing an RPOJK regarding the Disgorgement and Disgorgement Fund. The parties that can be subject to disgorgement are the perpetrators of the violations themselves, including the Issuer as a public limited liability company. However, if the Issuer commits a violation, it is reasonable for the order to be addressed to the in persona (private individual), considering the Issuer is an artificial person who has no will and cannot have a will without the party carrying out behind the scenes. Directors, Commissioners and major shareholders (controllers) are parties who are allowed to commit violations and at the same time enjoy illegal profits from the violation. However, affiliated parties may commit violations involving the Issuer, so if there is an illegal profit, those who enjoy the benefit should be obliged to compensate the disgorgement. The issuer as a public limited liability company has also received administrative sanctions by both the OJK and the stock exchange. It is very unfair for the Issuer to be responsible for paying disgorgement compensation.
38
Chang, Ling-Ling, and Fujen Daniel Hsiao. "The determinants of the purchase of D&O insurance in Taiwanese firms: Corporate governance and management turnover perspectives." Corporate Ownership and Control 9, no. 3 (2012): 453–71. http://dx.doi.org/10.22495/cocv9i3c4art4.
Анотація:
Accounting scandals in recent years have exposed that a high risk in business operations and caught the public attention. Thus, the Taiwanese government has strengthened the necessary regulations to protect shareholders’ rights, emphasizing breach of trust by managers and irresponsibility by board of directors (BOD). Situations such as class action lawsuits filed by investors against firms for deficiency in disclosures revealed that firms could purchase directors & officers liability insurance (D&O insurance) to reduce and diversify the potential risks that result in severe harms by management and board decisions. Our study also shows that decisions to purchase D&O insurance may influence the decision making process of BOD and high-level management, and it may even impact the likelihood of management turnover. The purpose of the study is to examine the main determinants that would influence the firm’s decision on whether to purchase D&O insurance. From empirical evidence, we find the purchase of D&O insurance is more likely when firms are greater in BOD independence, higher BOD average compensation, with greater high level management turnover, larger in size, and in the electronics industry. On the other hand, firms are less likely to purchase D&O insurance when there are higher frequencies in change of external auditors, greater deviation of ultimate controlling shareholders cash flow rights and equity control rights, and when firms are with greater in BOD directors serving as firm managers. However, no relationship is found for firms’ D&O insurance purchase relates to information disclosure transparency, and duality of CEO and BOD chairman
39
Heffinur, Heffinur. "PERTANGGUNGJAWABAN PIDANA PEMEGANG SAHAM DAN DIREKSI TERHADAP KORPORASI YANG DIPIDANAKAN." Refleksi Hukum: Jurnal Ilmu Hukum 8, no. 2 (October 8, 2014): 133–52. http://dx.doi.org/10.24246/jrh.2014.v8.i2.p133-152.
Анотація:
AbstrakKejahatan korporasi merupakan salah satu tindak pidana yang timbul seiring dengan perkembangan perekonomian dan teknologi. Persoalan yang mengemuka yaitu bagaimana tanggung jawab perusahaan sebagai badan hukum, sementara dalam kaidah Hukum Pidana belum sepenuhnya menjangkau tindak pidana tersebut. Tulisan ini bermaksud menguraikan pertanggungjawaban pidana korporasi, utamanya pemegang saham dan direksi manakala ada tindak pidana yang dilakukan.AbstractCorporate crime is a category of crimes that emerge along with the economic and technological development. The issue raised in this article is how is the criminal responsibility for the company as a legal entity. This is crucial since the rules of the Criminal Law has not fully reach the criminal act performed by corporations. This paper intends to outline the criminal liability of corporations, particularly their main shareholders and directors when there is a criminal offense committed.
40
Pane, Manumpak. "PERANAN VISUM ET REPERTUM DALAM TINDAK PIDANA PENGANIAYAAN YANG MENGAKIBATKAN KEMATIAN." Refleksi Hukum: Jurnal Ilmu Hukum 8, no. 2 (October 8, 2014): 169–78. http://dx.doi.org/10.24246/jrh.2014.v8.i2.p169-178.
Анотація:
AbstrakKejahatan korporasi merupakan salah satu tindak pidana yang timbul seiring dengan perkembangan perekonomian dan teknologi. Persoalan yang mengemuka yaitu bagaimana tanggung jawab perusahaan sebagai badan hukum, sementara dalam kaidah Hukum Pidana belum sepenuhnya menjangkau tindak pidana tersebut. Tulisan ini bermaksud menguraikan pertanggungjawaban pidana korporasi, utamanya pemegang saham dan direksi manakala ada tindak pidana yang dilakukan.AbstractCorporate crime is a category of crimes that emerge along with the economic and technological development. The issue raised in this article is how is the criminal responsibility for the company as a legal entity. This is crucial since the rules of the Criminal Law has not fully reach the criminal act performed by corporations. This paper intends to outline the criminal liability of corporations, particularly their main shareholders and directors when there is a criminal offense committed.
41
Satria, Hariman. "Environmental Pollution: Assessing the Criminal Liability of Corporations." Hasanuddin Law Review 4, no. 2 (September 1, 2018): 194. http://dx.doi.org/10.20956/halrev.v4i2.1421.
Анотація:
The Supreme Court sentenced PT Dongwoo Enviromental Indonesia (PT DEI) for disposing of hazardous and toxic wastes polluting the environment. Meanwhile, PT Adei Plantation & Industry (PT API) was charged with crime for the destruction of land damaging the environment. The research method used is normative legal research, which focuses on two approaches: case approach and conceptual approach. The results show that, first, PT DEI and PT API are charged criminally represented by the board as functioneel daderschap or directing mind and will. Second, PT DEI is charged with subsidized charges, while PT API is charged to alternative charges. Third, PT DEI and PT API are said to have committed a criminal act because management either the directors or regular employees commits a criminal offense for and on behalf of the corporation or in favor of the corporation. Fourth, to prove a corporation fault is through the aggregation of management mistakes or controlling personnel or regular employees in the corporation structure. Fifth, the principal penalty imposed on PT DEI is a fine of Rp 1.500,000,000. Similarly, PT API is fined Rp 650.000.000. Sixth; PT DEI is charged to additional crime in the form of deprivation of profits and closure of the company while PT API is an improvement due to crime. Seventh, with the closing of the company, the judges did not order the executors to liquidate the assets of PT DEI. Eighth, the imposition of the company's closing sanctions should take into account the impacts, such as the termination of employee relation and the interests of shareholders.
42
Joksović, Jovana. "GmbH and UG (Mini-GmbH): Protection of creditors in German law." Pravo i privreda 58, no. 4 (2020): 134–48. http://dx.doi.org/10.5937/pip2004134j.
Анотація:
One of the most widespread forms of companies, not only in our, but also in other jurisdictions, are limited liability companies. This form gives clear advantages to its founders, but at the same time endangers the creditor's settlement. In this paper, the author lists and describes the ways of protecting the company's creditors in the German law, namely the creditors of GmbH and the newer UG (Mini-GmbH) with brief reviews of Serbian law and d.o.o. First of all, there is a possible liability of shareholders and directors of German companies in the very stage of establishment. Furthermore, payments to shareholders from the assets that are necessary to cover the share capital are prohibited. In addition to its legal minimum share capital of EUR 25.000, GmbH contains further institutes for adequate creditor protection, which makes it attractive not only to the founders, but also to its creditors. In 2008, with the Law on Modernization of the Rights of Limited Liability Companies and the Fight against Abuses (MoMiG), the German legal system introduced a new legal form of simplified GmbH (UG), which has the same nature with a few special characteristics. This is primarily the possibility of founding a company below the prescribed legal minimum of the share capital, namely 1 Euro. This legal form should be an alternative to the English "Limited", which was "flooding" the German market back then. This advantage brings certain restrictions, first of all in terms of capital maintenance rules. Due to the fact that d.o.o. has significant similarities with the general rules that apply to these legal forms of the German system, primarily due to similarities with UG in the form of a minimum share capital of 100 dinars, the characteristics and solutions of German law for the protection of creditors of this legal form will be analysed. At the end comes a brief review of the institute "piercing a corporate veil" in the German law system.
43
Hartono, Rudi. "PELAKSANAAN PERATURAN MENTERI BUMN NOMOR:PER-01/MBU/2011 TENTANG PENERAPAN TATA KELOLA YANG BAIK (GOOD CORPORATE GOVERNANCE) PADA BUMN (Studi Kasus Di PT Perkebunan Nusantara IV)." JURNAL MERCATORIA 9, no. 2 (June 7, 2017): 86. http://dx.doi.org/10.31289/mercatoria.v9i2.432.
Анотація:
<p>Good Corporate Governance can be understood as a set of regulations governing Limited Liability relationship between shareholders, management companies and other stakeholders with regard to the rights and obligations, one of which is the decision-making at the Board of Directors and Board of Commissioners. The provisions stipulated in the Regulation of the Minister of SOE No. PER-01 / MBU / 2011,the publication of these regulations ultimately aims to create corporate governance that provides added value for all parties. Barriers to implementation of Good Corporate Governance is composed of several factors, among others, legal, corporate culture and human resources, but the implementation of PT Perkebunan Nusantara IV remain committed. As part of its commitment to the forming section, which is responsible for monitoring and encouraging implementation of application in accordance with the provisions of the Law.</p><p> </p>
44
Zou, Hong, Sonia Wong, Clement Shum, Jun Xiong, and Jun Yan. "Controlling-minority shareholder incentive conflicts and directors’ and officers’ liability insurance: Evidence from China." Journal of Banking & Finance 32, no. 12 (December 2008): 2636–45. http://dx.doi.org/10.1016/j.jbankfin.2008.05.015.
45
Stout, Lynn A. "On the Nature of Corporations." Deakin Law Review 9, no. 2 (November 1, 2004): 775–89. http://dx.doi.org/10.21153/dlr2004vol9no2art263.
Анотація:
Legal experts traditionally distinguish corporations from unincorporated business forms by focusing on such corporate characteristics as limited shareholder liability, centralised management, perpetual life, and freely transferred shares. While this approach has value, this essay argues that the nature of the corporation can be better understood by focusing on a fifth, often-overlooked, characteristic of corporations: their capacity to “lock in” equity investors’ initial capital contributions by making it far more difficult for those investors to subsequently withdraw assets from the firm. Like a tar pit, a corporation is much easier for equity investors to get into, than to get out of. An emerging school of theorists has begun to explore the implications of this idea for corporate law and practice. The idea is still novel enough to lack a uniformly- accepted label—in addition to the phrase “capital lock-in,” scholars have described this aspect of incorporation as “affirmative asset partitioning,” “the absence of a repurchase condition,” and “asset separation from shareholders.” Whatever label one chooses, the idea shows great promise for illuminating a variety of thorny problems that have long troubled corporate scholars and practitioners. In illustration, this essay considers how the idea of capital lock-in sheds light on three corporate mysteries in the United States: the sui generis nature of corporate directors’ fiduciary duties; the rise of the large modern service partnership; and lawmakers’ enthusiasm for meddling with corporate governance rules.
46
Hartono, Rudi, Marlina Marlina, and Muaz Zul Muaz Zul. "Pelaksanaan Peraturan Menteri BUMN Nomor: PER-01/MBU/2011 Tentang Penerapan Tata Kelola Yang Baik (Good Corporate Governance) Pada BUMN (Studi Kasus Di PT Perkebunan Nusantara IV)." ARBITER: Jurnal Ilmiah Magister Hukum 2, no. 1 (May 2, 2020): 23–32. http://dx.doi.org/10.31289/arbiter.v2i1.104.
Анотація:
Good Corporate Governance can be understood as a set of regulations governing Limited Liability relationship between shareholders, management companies and other stakeholders with regard to the rights and obligations, one of which is the decision-making at the Board of Directors and Board of Commissioners. The provisions stipulated in the Regulation of the Minister of SOE No. PER-01 / MBU / 2011, the publication of these regulations ultimately aims to create corporate governance that provides added value for all parties. The research method used is a normative legal research methods that are qualitative, such methods researchers conducted a discussion of the law in legislation through legal theories that found the answers to legal issues in accordance with applicable regulations. Barriers to implementation of Good Corporate Governance is composed of several factors, among others, legal, corporate culture and human resources, but the implementation of PT Perkebunan Nusantara IV remain committed. As part of its commitment to the forming section, which is responsible for monitoring and encouraging implementation of application in accordance with the provisions of the Law.
47
Arsan, Annora, and Hasniati Fahmi. "KEDUDUKAN HUKUM KOMISARIS BERDASARKAN UNDANG-UNDANG NOMOR 40 TAHUN 2007 TENTANG PERSEROAN TERBATAS." VERITAS 7, no. 1 (April 30, 2021): 72–88. http://dx.doi.org/10.34005/veritas.v7i1.1086.
Анотація:
Pursuant to Article 1 number 6 of Law Number 40 of 2007 concerning Limited Liability Companies, a Commissioner is an organ of the Company whose task is to carry out general and / or special supervision in accordance with the articles of association and provide advice to the Board of Directors. In principle, the role of the Commissioners is actually to supervise and provide advice to the Directors. However, individual commissioners do not have significant power in supervising directors. From the research results, it can be concluded that the Legal Position of Commissioners based on Law Number 40 of 2007 concerning Limited Liability Companies is that the Commissioners must be able to wisely manage various conflicts as a result of differences in the interests of shareholders. However, in practice, the responsibility of the Commissioner to manage these differences of interest can take various forms, for example making various agreements that benefit the company, not hiding information for personal gain, not abusing trust and not engaging in unfair competition. Commissioners are fully responsible for the management and operation of the company for the interests and goals of the company. In carrying out these duties, Commissioners are given full rights and powers, with the consequence that every action and action taken by the directors will be considered and treated as the company's actions and actions, as long as they act in accordance with what is stipulated in the company's articles of association.
Abstrak
Berdasarkan Pasal 1 angka 6 Undang-Undang Nomor 40 Tahun 2007 tentang Pereroan Terbatas, Komisaris adalah Organ Perseroan yang bertugas melakukan pengawasan secara umum dan/atau khusus sesuai dengan anggaran dasar serta memberi nasihat kepada Direksi. Secara prinsip, peran Komisaris sebenarnya adalah melakukan pengawasan dan memberi nasihat kepada Direksi. Namun, komisaris secara individu tidak punya kekuatan yang berarti dalam mengawasi direksi. Dari hasil penelitian dapat disimpulkan Kedudukan Hukum Komisaris Berdasarkan Undang-Undang Nomor 40 Tahun 2007 Tentang Perseroan Terbatas adalah Komisaris harus mampu mengelola secara bijak berbagai pertentangan sebagai akibat adanya perbedaan kepentingan para pemegang saham. Namun, dalam pelaksanaannya, tanggung jawab Komisaris pengelolaan perbedaan kepentingan ini dapat muncul dalam berbagai bentuk, misalnya membuat berbagai perjanjian yang menguntungkan perseroan, tidak menyembunyikan suatu informasi untuk kepentingan pribadi, tidak menyalahgunakan kepercayaan dan tidak melakukan kompetisi yang tidak sehat. Komisaris bertanggung jawab penuh atas pengurusan dan jalannya perseroan untuk kepentingan dan tujuan perseroan. Di dalam menjalankan tugasnya tersebut, Komisaris diberikan hak dan kekuasaan penuh, dengan konsekwensi bahwa setiap tindakan dan perbuatan yang dilakukan oleh direksi akan dianggap dan diperlakukan sebagai tindakan dan perbuatan perseroan, sepanjang mereka bertindak sesuai dengan apa yang ditentukan dalam anggaran dasar perseroan.
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Zen, Kiki Latifa, Ngadino Ngadino, and Anggita Doramia Lumbanraja. "TRANSAKSI BENTURAN KEPENTINGAN BAGI DIREKSI PERSEROAN TERBATAS TERHADAP KEGIATAN PASAR MODAL DI INDONESIA." NOTARIUS 13, no. 2 (August 6, 2020): 557–68. http://dx.doi.org/10.14710/nts.v13i2.31074.
Анотація:
Companies that have already gone public usually want a more substantial source of funds, one of which is by holding capital market activities (share investment), not a few for the Directors of the Company to make a conflict of interest transaction for their interests which results in a loss in a limited company. This paper aims to find out what is the basis for shareholders, Directors and The Board of Commissioners in conducting transactions of conflict of interest. Philosophical normative research approaches are used to analyze conflicts of interest referring to related regulations and principles of agreement in the capital market. As a result of the discussion, with the ambiguous regulations, if there is a conflict of interest by the Directors and other management, each Director must be fully responsible personally (if only one director) for the loss of a Limited Liability Company if the person concerned is proven guilty or negligent in carrying out their duties in accordance with applicable regulations, but in order to avoid conflicts of interest by the board of directors, the Company must establish a Limited Company Assistant and also form an Audit Committee to increase the effectiveness of the internal and external audit functions and the effectiveness of the internal control system to be protected from actions fraudulent company management, which can be detrimental to stock investments. Keywords: transaction; agreement; investation; capital marketAbstrak Perusahaan yang sudah mengalami go public biasanya meinginkan sumber dana yang lebih besar salah satunya yaitu dengan cara mengadakan kegiatan pasar modal (Investasi saham), tidak sedikit bagi Direksi Perseroan melakukan transaksi benturan kepentingan untuk kepentingan pribadinya yang berujung pada terjadinya kerugian dalam Perseroan terbatas. Tulisan ini bertujuan untuk mengetahui apa yang menjadi dasar bagi para pemegang saham, Direksi, maupun Dewan Komisaris dalam melakukan transaksi benturan kepentingan tersebut. Pendekatan penelitian normatif filosofis digunakan untuk menganalisis benturan kepentingan mengacu pada peraturan yang terkait dan asas-asas perjanjian dalam pasar modal. Sebagai hasil pembahasannya yaitu dengan Peraturan yang masih rancu maka apabila terjadi benturan kepentingan yang dilakukan oleh Direksi maupun pengurus lainnya adalah dengan tiap-tiap Direksi harus bertanggungjawab penuh secara pribadi (apabila direksi hanya satu) atas kerugian Perseroan Terbatas apabila yang bersangkutan terbukti bersalah atau lalai dalam menjalankan tugasnya sesuai dengan ketentuan yang berlaku, namun agar menghindari terjadinya benturan kepentingan yang dilakukan oleh pihak direksi maka Perseroan harus membentuk Asisten Perseroan Terbatas dan juga membentuk Komite Audit untuk meningkatkan efektivitas fungsi audit internal dan eksternal serta efektivitas sistem pengendalian internal agar terlindungi dari tindakan-tindakan curang yang dilakukan pihak manajemen perusahaan, yang mana dapat merugikan investasi saham. Kata kunci : transaksi; perjanjian; investasi; pasar modal
49
Ricks, Val D. "Fraud Is Now Legal in Texas (For Some People)." Texas A&M Law Review 8, no. 1 (May 2020): 1–62. http://dx.doi.org/10.37419/lr.v8.i1.1.
Анотація:
Three intermediate appellate courts in Texas have held that corporate actors— directors, officers, managers, shareholders, and probably common employees and agents—are immune from personal liability for fraud that they themselves commit as long as their deceit relates to or arises from a contractual obligation of the corporation. Similar actors in limited liability companies also enjoy immunity. These courts do not require that the business entities themselves be liable for the fraud. When the entities are not liable, these new holdings leave fraud victims no remedy at all, even if a jury would find fraud. One (or maybe two) Texas appellate courts have held otherwise. The Supreme Court of Texas will probably decide the issue, and one justice has already signed on. To date, these decisions have only been noticed in print by a few practicing attorneys. No commentator has questioned them. But the decisions are wrong. These courts claim to be following a statute, but the statute does not support the courts’ analysis. Nor does the statute’s legislative history. Surprising (and probably unnoticed) results strongly suggest the legislature never intended this reading. And what rationale could justify it? Fraud is the economic equivalent of theft. Practitioner comments on the decisions suggest that the cost of litigating fraud is too high. Texas’s reputation for pro-business policies might suggest this move is just helpful de-regulation, but it is not. Policing fraud is the only way to make markets safe for freedom of contract, and litigating fraud claims is the courts’ role. These decisions should be abandoned before they become the law in all of Texas and elsewhere.
50
Wynn, Michael T. "Chameleons at large: Entrepreneurs, employees and firms – the changing context of employment relationships." Journal of Management & Organization 22, no. 6 (November 2016): 826–42. http://dx.doi.org/10.1017/jmo.2016.40.
Анотація:
AbstractCurrent labour markets are witnessing a proliferation of hybrid or quasi-employment status whereby company directors and limited liability partners are gaining access to employment rights. At the same time, legislation is creating new forms of employee shareholder status, where employees trade employment rights for shares in the company. New corporate structures are being developed to promote one-man companies, small and medium sized enterprises and hybrid company/partnerships. This paper examines some of these developments in the light of the theory of the firm and the jurisprudence of company and employment law and considers the implications for workers, employers and the self-employed.