Publication details
Rozsah pravidel a omezení vyplácení zisku pro uplatnění nároku na jeho vrácení
| Authors | |
|---|---|
| Year of publication | 2023 |
| Type | Article in Proceedings |
| Conference | Cofola 2023: Část 1 - „Financování obchodních korporací“ |
| MU Faculty or unit | |
| Citation | |
| Web | Open access sborníku |
| Keywords | Joint Stock Company; Payment of Profit Share; Rules for Distribution of Profit; Return of Profit Share; Principle of Maintenance of equity Capital; Right to Profit |
| Description | Claim under Section 348(4) of the Business Corporations Act for reimbursement of illegally paid profit share is a last resort option within the framework of the mechanisms for maintaining the equity capital of a joint stock company. It only comes into effect when the other mechanisms have failed – the rules and restrictions on the distribution and payment of profit shares have already been breached. Although the determination of exactly what rules and restrictions must be breached so that the claim is triggered is crucial, the scope of such conditions has not yet been determined. The lawmaker constructs the hypothesis of the provisions of Section 348(4) of the Business Corporations Act in the following way, that its consequences are intended to take effect if the payment violates “the conditions provided for by this Act”. On this, the doctrine at most cursorily states, that these conditions are the rules for the distribution and payment of profits in section 34 and 40 Business Corporations Act. However, the definition of these conditions can be viewed in two ways. Either a restrictive method of interpretation is applied and these are merely conditions for the distribution and payment of profits (the aforementioned provisions of Sections 34 and 40 Business Corporations Act), or on the other hand, an extensive method of interpretation is applied and then all the predispositions and other conditions for the distribution of profits are considered. In my article I try to justify why these conditions should be viewed in a sensu largo manner and why they do not have to be only the conditions contained in the Business Corporations Act. At the same time, I point out the corrective of the inviolability of the right to shareholders‘ profits, which applies when the claim under section 348(4) of the Business Corporations Act is invoked. |
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