SOME ASPECTS OF PROTECTING THE RIGHT TO PARTICIPATE IN THE MANAGEMENT OF A BUSINESS ENTITY
Journal Title: Право та інновації - Year 2017, Vol 3, Issue 19
Abstract
Problem setting. One of the most important tasks of the law on business entities is the defense and protection of the rights and legitimate interests of their members (shareholders), regardless of their share in the charter capital. The rights of shareholders have traditionally been recognized by a special kind of securities – shares, that is, documents. These documents by their nature and purpose, provided for their presence within authorized persons – shareholders. However, the Laws of Ukraine “On Securities and Stock Market”, “On Joint Stock Companies’ stipulate the possibility of issuing shares only in a non-documentary form. The rights of the members of the rest of business entities have also a specific form of certification – to consolidate the share of the participant in the statute (constituent agreement), i.e. also have no material form. This led to a number of problems related to the protection of the right to participate in the management of a business entity. Analysis of recent researches and publications. The problems of protecting corporate rights were at various stages of the development of the legal doctrine on legal persons under the scope of interests of V. A. Belov, V. A. Vasiliev, V. M. Kravchuk, I. V. Spasibo-Fatieieva and others. However, the specifics of protecting the right to participate in the management of a business entity as one of the non-property corporate rights was not paid enough attention. Target of research. The objective is to establish the mechanism of protecting the right to participate in the management of a business entity. Article’s main body. Being one of the fundamental rights of the members of business entities, the right to participate in the management of a business entity may be violated both by the corporation itself and by its other participants. A group of violations of this right may be quite diverse and concern: a) violation of the procedure for registering shareholders to participate in general meetings, including nonadmission of shareholders for registering; b) decision-making on matters not included in the agenda; c) holding of the general meeting of members (shareholders) in the absence of a quorum; d) violation of the procedure of voting and counting of votes, etc. However, neither the legislation nor the legal doctrine nor the judicial authorities give an unambiguous answer to a number of unresolved problems, and sometimes contain contradictory norms, propositions and decisions. The realization of the right to protection is not limited to only one possibility of appealing to the competent authorities in order to protect the violated right. The use of methods of self-defense of their rights, as well as measures of operative influence by a member (shareholder), also takes place, but as a rule in exceptional cases. The conducted analysis demonstrates that law enforcement practice in Ukraine does not allow in the full sense to provide adequate protection of the right to participate in the management of a business entity by means of a non-jurisdictional form or by using methods of self-defense by the members (shareholders). Hence, almost the only option is to appeal to the court. Conclusions and prospects for the development. Judicial protection nowadays in Ukraine is an effective way of protecting the right to participate in the management of a business entity, since actions related to self-defense do not have an effective content, and persons whose mentioned right is violated still appeal to the jurisdictional authorities. However, the legislator and court practice should develop mechanisms for extrajudicial procedure to protect the right to participate in the management of a business entity, as well as to expand the scope of self-defense of such a right.
Authors and Affiliations
V. H. Zhornokui
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