Creditors

2020 ◽  
pp. 223-260
Author(s):  
Paul Davies
Keyword(s):  
Limited Liability ◽  
Creditor Protection ◽  
Company Law ◽  
Going Concern ◽  
Wrongful Trading ◽  
Ex Ante ◽  
Mandatory Rules ◽  
The Creation ◽  
The Law

Because of limited liability, creditor protection has always been a feature of company law. Large creditors can contract ex ante for customised protection and the law facilitates this in various ways, notably by the creation of the floating charge. Non-adjusting creditors require the protection of mandatory rules, at least in some situations. Creditor protection in relation to companies in the vicinity of insolvency is now well established, not only through ‘wrongful trading’ but also via transaction invalidity rules and directors’ disqualification. For going-concern companies the emphasis is on rules restricting the shifting assets to shareholders via distributions and associated rules relating to the maintenance of capital.

7. Creditors

2020 ◽  
pp. 223-260
Author(s):  
Paul Davies
Keyword(s):  
Limited Liability ◽  
Creditor Protection ◽  
Company Law ◽  
Going Concern ◽  
Wrongful Trading ◽  
Ex Ante ◽  
Mandatory Rules ◽  
The Creation ◽  
The Law

Because of limited liability, creditor protection has always been a feature of company law. Large creditors can contract ex ante for customised protection and the law facilitates this in various ways, notably by the creation of the floating charge. Non-adjusting creditors require the protection of mandatory rules, at least in some situations. Creditor protection in relation to companies in the vicinity of insolvency is now well established, not only through ‘wrongful trading’ but also via transaction invalidity rules and directors’ disqualification. For going-concern companies the emphasis is on rules restricting the shifting assets to shareholders via distributions and associated rules relating to the maintenance of capital.

La protection des actionnaires minoritaires En droit tunisien des sociétés

2006 ◽  
Vol 13 (1) ◽  
pp. 107-133
Author(s):  
Ahmed Ouerfelli
Keyword(s):  
Limited Liability ◽  
Company Law ◽  
Shareholder Rights ◽  
Political Rights ◽  
Minority Shareholders ◽  
Minimum Capital ◽  
The Creation ◽  
The Law ◽  
The Right ◽  
A Share

Abstract The Law on the Economic Initiative, promulgated on December 27th, 2007, amended several laws at the same time. Among these laws, is the modifi cation of certain provisions of the Commercial Companies Code of November 3rd, 2000. The Law aims at the impulse of the creation and the transmission of fi rms. In the field of company law, it reinforces the rights of shareholders in limited companies, listed or not, and abolishes the minimum capital, required for the constitution of limited liability companies. It also allows the shareholders to have a contribution in services (apport en industrie) in these companies. This study focuses on the consolidation of the shareholders’ rights under the new provisions. The shareholder rights are of two kinds: the right to participate in the taking of the decisions in the company (called “political rights”), and the right to a share of the profi t generated by the company’s activity. The Law on the Economic Initiative consolidated these two kinds of rights for minority shareholders.

scholarly journals Tanggung Jawab Direksi atas Terjadinya Pailit Perseroan Terbatas

2020 ◽  
Vol 4 (1) ◽  
pp. 83
Author(s):  
Antonius Faebuadodo Gea ◽  
Hirsanuddin Hirsanuddin ◽  
Djumardin Djumardin
Keyword(s):  
Limited Liability ◽  
Company Law ◽  
Limited Liability Company ◽  
Conceptual Approach ◽  
The Board Of Directors ◽  
Approach Method ◽  
Separate System ◽  
Accountability Mechanism ◽  
The Law ◽  
Legal Consequences

This research was conducted to find out how the directors' accountability mechanism caused by an error or negligence caused the limited company to go bankrupt and how the legal consequences on the bankruptcy of a limited liability company. This type of research was classified as a normative legal research or also called doctrinal research, namely research that examined the law as a separate system that was separate from various other systems in society so as to provide a boundary between the legal system with other systems. The approach method used was the statutory approach; and Conceptual Approach. In principle, the Board of Directors was not personally responsible for acts committed for and on behalf of the company based on its authority. The scope of conduct that would be personally accounted for by the directors of the company was negligence because the directors did not fulfill the contents of the agreement and mistakes because the directors commit acts against the law. Bankruptcy of a Limited Liability Company was the bankruptcy of itself, not the bankruptcy of its management, even though the bankruptcy was due to the negligence of its management. So that management should not be held liable jointly for any losses due to negligence and could only be held accountable if the company's assets were not sufficient to cover losses due to bankruptcy Article 90 paragraph (2) of the Limited Liability Company Law).

scholarly journals ANALISIS KEKUATAN PERJANJIAN NOMINEE SAHAM DALAM PERSEROAN TERBATAS PENANAMAN MODAL ASING (PT.PMA)

Acta Comitas ◽  
2016 ◽  
Author(s):  
Sigit Teteki Triwis
Keyword(s):  
Capital Market ◽  
Limited Liability ◽  
Company Law ◽  
Analytic Approach ◽  
Limited Liability Company ◽  
Legal Research ◽  
Foreign Investors ◽  
The Law ◽  
Primary Materials ◽  
The Capital Market

The use of nominee shares through nominee shares agreement has grown and developed well in the investing world, especially within the investors who establish PT. PMA. In short, the concept of nominee shares are done by both localand foreign investors. One of the causes of the nominee shares usageis because there is no rules in the Company Law that regulate, prohibit, and unequivocally ban the nominee shares by making the stock agreement. The law of prohibition to make nominee shares agreement or stock statement can only be found in the Capital Market Law, Article 33 paragraph (1) and paragraph (2). This research is a normative legal research that moves from the void norm within our laws. The approach used in this study is the legislation and analytic approach. The legal materials in this study are taken from the primary materials, secondary legal materials, and tertiary legal materials. The results of this study indicate the cause of the nominee shares usage by making nominee stock agreement, has already stated in the Company Law. However, it only explainsthe requirement that the PT has to be founded by two (2) or more persons, it does not give any detail requirements of how to be the shareholders. Other than to fill the Company Law, by filling the requirement of the PT establishment,the use of nominee agreement is due to the restriction of the line business for PT. PMA. The void of the norm has resulted in the violation within the limited liability company, in which one of the shareholders in PT. PMA is not the actual owner or nominee, but only the registered owner from certain number of shares. The law of prohibition of nominee shares in UUPM is considered inefficient because there is no strict regulations and prohibitions in the Company Law, thus, in practice, the use of nominee shares by making the nominee shares agreementgrows and develops through the simulation or indirect agreement, known as the arrangement agreement.

scholarly journals Mewujudkan Keharmonisan Undang-Undang Perseroan Terbatas dalam Pendirian Perseroan Daerah

2020 ◽  
Vol 22 (2) ◽  
pp. 363-378
Author(s):  
Teuku Ahmad Yani ◽  
Teuku Muttaqin Mansur
Keyword(s):  
Legal Status ◽  
Limited Liability ◽  
Company Law ◽  
Regional Government ◽  
Limited Liability Company ◽  
Legal Basis ◽  
Liability Law ◽  
The Law ◽  
The Government ◽  
Business Entities

Tujuan penelitian ini adalah menganalisis asas lex spesialis terkait dengan keharmonis-an Undang-Undang Perseroan Terbatas dalam Pendirian Perseroan Daerah. Perusahaan perseroan daerah merupakan salah satu badan usaha dari sejumlah badan usaha yang dikenal dalam sistem hukum di Indonesia. Ciri khas hukum perusahaan di Indonesia, masing-masing jenis perusahaan diatur dengan undang-undang yang terpisah. BUMD diatur dengan Undang-Undang Pemerintah Daerah, sedangkan perseroan terbatas diatur dengan Undang-Undang Perseroan Terbatas. Penelitian ini menggunakan metode yuri-dis normatif, dengan mendalami upaya harmonisasi hukum. Hasil penelitian menunjuk-kan bahwa perseroan daerah pada dasarnya juga perseroan terbatas yang dapat dimiliki sepenuh sahamnya oleh satu pemerintah daerah, namun dalam UUPT, tidak diakomodir sebagai perseroan terbatas dengan saham tunggal dapat didirikan oleh satu pemerintah daerah. Namun dalam praktiknya sebagian notaris berupaya melakukan terobosan yang kemudian diakui oleh pemerintah dengan memberikan status badan hukum pada perseroan yang didirikan sepenuhnya oleh satu pemerintah daerah sebagai satunya pendirinya Perseroda. Hal ini, menimbulkan pertanyaan hukum, apakah landasan hukum yang dapat digunakan oleh notaris dan pemerintah untuk menerobos UUPT untuk memenuhi kaedah yang terdapat dalam Undang-Undang Pemda. Bringing the Harmony of the Limited Liability Law in the Establishment of Regional Company The purpose of this study is to analyze the lex specialist principle related to the harmony of the Law on Limited Liability Companies in the establishment of regional companies. Regional company is one of business entities in Indonesia legal system. The characteristic of company law in Indonesia is each type of company regulated by a separate law. BUMD (regional company) is regulated by the regional government law while limited liability company is regulated by UUPT. This study uses a normative juridical method, by exploring efforts to harmonize the law. The results showed that the regional company is basically also a limited liability company that can be fully owned by regional government, but based on the company law, it is not accommodated as a limited liability company because the company has only a single share which is one local government. However, in practice some of notaries tried to make a breakthrough which was later recognized by the government by giving legal status to regional company. This raises the question of what legal basis can be used by notaries and the government to break through the company law so that it meets the methods contained in the regional government law.

scholarly journals CRIMINAL LIABILITY OF CORPORATE SHAREHOLDERS

2020 ◽  
Vol 5 (20) ◽  
pp. 69-79
Author(s):  
Rr. Dijan Widijowati ◽  
Halim Darmawan
Keyword(s):  
Law Enforcement ◽  
Criminal Liability ◽  
Limited Liability ◽  
Secondary Data ◽  
Company Law ◽  
Analysis Method ◽  
Piercing The Corporate Veil ◽  
The Law ◽  
Civil Recovery ◽  
Financial Losses

Corporations in the form of Limited Liability Companies in Indonesia are regulated in Limited Liability Company Law No. 40 of 2007 concerning Limited Liability Companies, this Law regulates the liability of corporations and/or shareholders who commit acts against the law, but the liability that can be asked of shareholders does not exceed existing shares. This study uses normative legal research methods. The data used are secondary data consisting of primary legal materials, secondary legal materials, and tertiary legal materials. For data analysis, the qualitative jurisdictional analysis method was used. From this research, it can be found that law enforcement against shareholders who commit acts against the law can be upheld and the outcome is that the action against the law which was originally a civil action and then turned into a criminal act. By using the Piercing, the corporate veil doctrine, shareholders who commit acts against the law can be sentenced to criminal and all their assets to cover the financial losses of the state due to their actions. It is universally applied on the basis of fraudulent acts carried out to rake in personal profit and by implementing civil forfeiture or civil recovery, the proceeds of crimes committed by shareholders are likely to be returned.

10. LLPs: An Introduction

2020 ◽  
pp. 317-328
Author(s):  
Geoffrey Morse ◽  
Thomas Braithwaite
Keyword(s):  
Limited Liability ◽  
Company Law ◽  
The Creation

This chapter explains the various commercial and legal justifications that gave rise to the creation of Limited Liability Partnerships (LLPs), and gives an overview of similar bodies in different jurisdictions. It explains the legislative scheme by which LLPs were introduced, and how the provisions of company law have been applied.

11. Limited Liability Partnerships—Membership

2015 ◽  
Author(s):  
Geoffrey Morse
Keyword(s):  
Limited Liability ◽  
Company Law ◽  
The Law ◽  
Limited Liability Partnership

This chapter considers the requirements needed to become a member of a limited liability partnership (LLP) under the Limited Liability Partnerships Act 2000 (LLP Act). The term ‘member’ of an LLP is used to distinguish them from partners, directors, or shareholders. Since the law applicable to LLPs derives mainly from adaptations from both company law and partnership law, members of an LLP are nevertheless treated as substituting for the role of partner, director, officer, or shareholder depending upon the relevant provision. For the various controls imposed on LLPs and for winding up, members can take the place either of shareholders, directors, or both. The chapter analyses members of an LLP as employees and workers. It then outlines the duties of members of an LLP and to each other as stated in Section 5 of the LLP Act.

Part IV Separation of Powers, Ch.23 Tribunals

2016 ◽  
Author(s):  
Thiruvengadam Arun K
Keyword(s):  
Legal System ◽  
Separation Of Powers ◽  
Company Law ◽  
Historical Background ◽  
Law Reform ◽  
Recent Criticism ◽  
Committee Report ◽  
Law And Policy ◽  
The Creation ◽  
The Law

This chapter examines the constitutional status of tribunals in India and how the law and policy on tribunals have evolved since 1950. It presents a brief historical background on the evolution of tribunals in India, starting from the origin of tribunals and debates among law reform bodies from 1950 to 1975 to the Swaran Singh Committee report recommending the creation of tribunals to combat delays in the Indian legal system. It then reviews constitutional litigation over tribunals during the period 1985–2014, focusing on the Sampath Kumar and other cases after it, along with the National Company Law Tribunals. It also considers the debate over the ‘tribunalisation’ of the Indian legal system and the constitutional arguments that have been raised to challenge the validity of particular tribunals. Finally, it looks at recent criticism of the growth of tribunals by practicing lawyers and argues that calls for their abolition are impractical.

scholarly journals Shareholders’ Draft Resolutions in Estonian Company Law: An Example of Unreasonable Transposition of the Shareholder Rights Directive

2018 ◽  
Vol 27 ◽  
pp. 69-78
Author(s):  
Andres Vutt ◽  
Margit Vutt
Keyword(s):  
Listed Companies ◽  
Company Law ◽  
Shareholder Rights ◽  
Small Companies ◽  
Central Question ◽  
Formal Approach ◽  
Private Companies ◽  
The Supreme Court ◽  
Mandatory Rules ◽  
The Law

One of the measures foreseen in the Shareholder Rights Directive for enhancement of the rights of shareholders is the regulation of draft resolutions. The article addresses the central question of whether the extent of the implementation of the requirements regulating draft resolutions and their disclosure in Estonian company law has been justified. Research was conducted to analyse whether the transposition of the rules on draft resolutions derived from the directive has contributed to the attainment of the objectives set out in the directive and in other European initiatives. The main conclusions presented in the article are that, as a result of the transposition of the Shareholder Rights Directive, Estonian small limited companies have a burdensome obligation to follow the formalised rules on draft resolutions and their disclosure, which, according to the directive, were initially meant only for listed companies. Although the Supreme Court of Estonia had an opportunity to interpret the respective regulations reasonably, it has chosen a rather formal approach instead and applied the law in quite possibly the most burdensome way for Estonian companies and contrary to the aims for the directive as the source of those regulations. The authors of the article take the stance that there is a need to change the rigid rules on draft resolutions that have been forced on Estonian small companies. The present mandatory rules on draft resolutions should be applicable to listed companies only. All other public limited companies should be given an opt-in option. As for private companies, the law should clearly set out the possibility of stipulating the appropriate rules in the articles of association of the company. 

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