scholarly journals Companies and the Constitutional ‘Right to Life’: A Critical Analysis of the Companies Act 71 of 2008

2021 ◽  
Vol 12 (6) ◽  
pp. 107
Author(s):  
Siphethile Phiri
Keyword(s):  
Corporate Law ◽  
Bill Of Rights ◽  
Right To Life ◽  
Legal Research ◽  
Legal Personality ◽  
Constitutional Right ◽  
The Republic ◽  
Novel Concept ◽  
The Right ◽  
A Company

Corporate law is founded on the fictitious principle of the separate legal personality of a company. This principle entails that a company is a juristic person, separate and distinct from any persons involved with the company. Because of their juristic nature, companies can acquire rights and incur liabilities in their own capacity. This corporate-law principle is rooted in section 8(4) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) which expressly provides the Bill of Rights applies to juristic persons subject to the stated considerations. The fact that companies as juristic persons, similar to natural persons, are entitled to the rights and freedoms contained in the Bill of Rights reveals that the Constitution recognises companies as ‘persons’. In this light, the article investigates how the Companies Act 71 of 2008 (hereafter the Companies Act) has embraced the constitutional right to life of companies as juristic persons as provided for in section 11 of the Constitution. To achieve this aim, the author applies the doctrinal legal research methodology – a legal research model which entails an examination of so-called ‘black-latter law’ with the Companies Act being the principal instrument. The results show that, although companies to do not enjoy the right to life in the same manner as natural persons, the literature examined reveals that the Companies Act recognises company’s constitutional right to ‘life’. In many instances, the right to continued existence of companies is promoted in various ways, including the introduction of the novel concept of business rescue by the Companies Act as a way of promoting the right to ‘life’ of companies.   Received: 20 August 2021 / Accepted: 7 October 2021 / Published: 5 November 2021

scholarly journals Wybrane regulacje Kodeksu spółek handlowych w świetle konstytucyjnego modelu ochrony własności

2019 ◽  
pp. 115-136
Author(s):  
Paweł Ochmann
Keyword(s):  
Constitutional Law ◽  
Prima Facie ◽  
Point Of View ◽  
Company Law ◽  
Commercial Law ◽  
Squeeze Out ◽  
Constitutional Right ◽  
The Republic ◽  
The Right ◽  
A Company

The article confronts specific solutions adopted in the Code of Commercial Compa-nies and Partnerships with the patterns of the constitutional control of law resulting from the Constitution of the Republic of Poland in the form of the right of ownership. Its aim is to answer the question whether the constitutionality of commercial law institutions should be assessed autonomously, taking into account the specificity of commercial companies law. The author puts forward a thesis that just as there is a principle of autonomy of commercial law within the principle of unity of civil law, within the framework of constitutional law, the regulations of law and commerce also have autonomy which influences the process of assessing the conformity of particular subjects of control with the models defined in the Constitution of the Republic of Poland. As one of the specific elements of commercial law in relationto the Constitution, the necessity of weighing the opposing interests of the same good, i.e. the right to ownership is pointed out. The paper discusses in detail the institution of forced buyout (squeeze-out) in the context of the judgment of the Con-stitutional Tribunal (Case No. P 25/02). The issue of legitimacy to appeal against the resolution of the General Shareholders Meeting of a company from the point of view of the right of ownership is also discussed. In the author’s opinion, the right to appeal against the resolution, which prima facie at the constitutional law level could be associated with the constitutional right to a court, takes the form of a corporate right of a shareholder resulting from a constitutional right of ownership, of which a share is one of the forms. Therefore, it has a derivative character. The considerations contained in the text lead to the recognition of the admissibility of an autonomous interpretation of company law regulations when assessing their compliance with the Constitution. When assessing constitutionality, the legal char-acter and specificity of the subject of control should be taken into account.

The right to life: A comparative analysis of the relevant norms of the Constitutions of the Republic of Azerbaijan and Russian Federation

2020 ◽  
Vol 10 (1) ◽  
pp. 28-32
Keyword(s):  
Comparative Analysis ◽  
Death Penalty ◽  
Russian Federation ◽  
Practical Implementation ◽  
Right To Life ◽  
Human Right ◽  
The Russian Federation ◽  
The Republic ◽  
The Right ◽  
Criminal Legislation

The relevance of the work is determined by the fact that the right to life belongs to the basic constitutional human rights, therefore, its observance and protection is the duty of the state. Despite its undeniable importance, today the right to life anywhere in the world is not really ensured in sufficient quantities. The constitutional consolidation of the right to life raises a number of issues related to the concept, nature, legislative and practical implementation of this right. It should be noted that various aspects of the human right to life were considered in the scientific works of G.B. Romanovsky, O.G. Selikhova, T.M. Fomichenko, A.B. Borisova, V.A. Ershov and other Russian authors. The aim of the study is to study and comparative analysis of the legal content of the constitutional norm that defines the right to life, to comprehend and identify possible problems of the implementation of this right. To achieve this goal, this article discusses relevant issues of ensuring the right to life, proclaimed by Article 20 of the Constitution of the Russian Federation and Article 27 of the Constitution of Azerbaijan Republic. The results of a comparative analysis of these constitutional norms and the relevant norms of industry law allow us to determine, that there is no contradiction between Article 20 of the Constitution of the Russian Federation and the norms of the criminal legislation of the Russian Federation, which imply the death penalty as an exceptional measure of punishment, because a moratorium has been imposed on the death penalty in the Russian Federation since April 16, 1997. However, after the abolition of the death penalty in the criminal legislation of the Republic of Azerbaijan in 1998, there was a discrepancy between parts II and III of Article 27 of the Constitution of the Republic of Azerbaijan and the criminal legislation of Azerbaijan Republic that requires the introduction of the necessary changes in the content of the analyzed constitutional norm. The value of the work is determined by the fact that the introduction of appropriate changes will contribute to the further improvement of the Constitution of the Republic of Azerbaijan and the effective implementation of the right to life of everyone.

QUO VADIS HUKUM ISLAM (ANTARA IDEALITAS DAN REALITAS INDONESIA)

2020 ◽  
Vol 8 (2) ◽  
pp. 97-108
Author(s):  
Dinda Izzati
Keyword(s):  
Political Rights ◽  
Right To Life ◽  
Economic Rights ◽  
Christian Communities ◽  
Basic Assumptions ◽  
Eastern Indonesia ◽  
The Republic ◽  
Quo Vadis ◽  
The Right

Evidently, a few months after the Jakarta Charter was signed, Christian circles from Eastern Indonesia submitted an ultimatum, if the seven words in the Jakarta Charter were still included in the Preamble to the 1945 Constitution, then the consequence was that they would not want to join the Republic of Indonesia. The main reason put forward by Pastor Octavian was that Indonesia was seen from its georaphical interests and structure, Western Indonesia was known as the base of Islamic camouflage, while eastern Indonesia was the basis for Christian communities. Oktavianus added that Christians as an integral part of this nation need to realize that they also have the right to life, religious rights, political rights, economic rights, the same rights to the nation and state as other citizens, who in fact are mostly Muslims. This paper aims to determine and understand the extent to which the basic assumptions of the Indonesian people view the role of Islam as presented in an exclusive format.

scholarly journals Company Changing Status and Its Linking to Competitiveness

2015 ◽  
Vol 53 (1) ◽  
pp. 1-17
Author(s):  
Dragana Radenković-Jocić ◽  
Ivan Barun
Keyword(s):  
Mergers And Acquisitions ◽  
Legal Framework ◽  
Decision Makers ◽  
Economic Activities ◽  
Economic Interests ◽  
Eu Legislation ◽  
The Republic ◽  
The Right ◽  
A Company ◽  
The Eu

Abstract The authors present the issues and challenges related to the changes in status of a company and its impact on competitiveness. Status changes of companies, mostly mergers and acquisitions of companies, are one of the ways in which capital owners and management direct economic activities with the aim of maximizing profits. In order to make the right and justified decision, in terms of achieving the economic interests of the company, it is essential to know the laws and regulations in this area. This paper should provide answers on various questions which will be presented to decision makers in every company, considering status changes. Bearing in mind that the question of status changes often associated with an international element, the authors will pay special attention on the EU legislation and current legal framework in the Republic of Serbia.

scholarly journals EKSISTENSI HUKUMAN MATI DITINJAU DARI ASPEK HAM SIPIL DALAM PERSEPEKTIF HAK UNTUK HIDUP

2021 ◽  
Vol 3 (2) ◽  
pp. 72-91
Author(s):  
I Gusti Bagus Hengki
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Research Methodology ◽  
Scientific Paper ◽  
Human Rights Law ◽  
Right To Life ◽  
The Republic ◽  
Perpetrators And Victims ◽  
The Right

This scientific paper is expected to find out how the existence of the death penalty is viewed from the aspect of Civil Human Rights in the perspective of the right to life and whether the existence of the death penalty is contrary to the ideology of the Pancasila State and the 1945 Constitution of the Republic of Indonesia and the Human Rights Law with a normative research methodology with using a statutory approach. From the results of the discussion that the existence of the death penalty in terms of the Civil Human Rights aspect in the perspective of the right to life still needs to be maintained, because it does not conflict with the ideology of the Pancasila State and the 1945 Constitution of the Republic of Indonesia, the Human Rights Law, UDHR and ICCPR, as well as religion. in Indonesia, as long as it is not carried out arbitrarily, in accordance with the provisions of the legislation. This needs to be done because to provide protection for individual perpetrators and victims against acts of revenge, emotional, uncontrollable, vigilante, so that it does not guarantee that the death penalty is abolished. Indeed, there are parties who are pro and contra about the death penalty by both underpinning Pancasila, all of which is to make Pancasila a "Justification".   Tulisan ilmiah ini diharapkan dapat mengetahui bagaimana eksistensi  hukuman mati  ditinjau dari aspek  HAM Sipil dalam perspektif hak untuk hidup  dan apakah eksistensi  hukuman mati bertentangan dengan  ideologi Negara Pancasila dan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 serta  Undang-Undang HAM dengan metodologi penelitian normatif dengan menggunakan jenis pendekatan perundang-undangan (statute Approach). Dari hasil pembahasan bahwa eksistensi hukuman mati ditinjau dari aspek HAM Sipil dalam perspektif Hak untuk hidup  masih perlu dipertahankan, karena tidak bertentangan dengan ideologi Negara Pancasila dan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945, Undang-Undang HAM, UDHR dan ICCPR, maupun agama yang ada di Indonesia, asal dilaksanakan  tidak sewenang-wenang, sesuai dengan ketentuan peraturan perundang-undangan. Hal ini perlu diadakan  karena untuk memberikan perlindungan terhadap individu pelaku dan korban terhadap tindakan balas dendam, emosional, tidak terkendali, main hakim sendiri, sehingga tidak menjamin bahwa kalau hukuman pidana mati ditiadakan.  Memang ada pihak yang pro dan kontra tentang hukuman mati dengan sama-sama mendasari Pancasila, semuanya itu untuk menjadikan Pancasila sebagai “Justification“.

Rights, Liberties, Freedoms: A Reappraisal

1963 ◽  
Vol 57 (4) ◽  
pp. 841-854 ◽  
Author(s):  
Carl J. Friedrich
Keyword(s):  
Thomas Hobbes ◽  
Natural Rights ◽  
The Self ◽  
Bill Of Rights ◽  
Bodily Harm ◽  
Pursuit Of Happiness ◽  
Right To Life ◽  
Governmental Power ◽  
The Individual ◽  
The Right

When President Roosevelt proclaimed the “Four Freedoms” in 1941, he accepted a new conception of human rights far removed from the natural rights of the seventeenth and eighteenth centuries. The conception of rights which inspired the British Bill of Rights (1689), the Declaration of Independence (1776) and the Declaration of the Rights of Man and Citizen (1789) is grounded in simple natural law notions. Man was believed to have a fixed and unalterable nature, to be endowed with reason, which gave him certain rights without which he ceased to be a human being. These natural rights, summed up in the Lockean formula of “life, liberty and property” (later broadened to include the pursuit of happiness), were largely concerned with protecting the individual person against governmental power. Each man was seen as entitled to a personal sphere of autonomy, more especially of religious conviction and property; the inner and the outer man in his basic self-realization and self-fulfillment. These rights depended in turn upon the still more crucial right to life-that is to say, to the self itself in terms of physical survival and protection against bodily harm. This right to life was recognized even by absolutists, like Thomas Hobbes. It was believed immutable, inalienable, inviolable. Locke exclaimed at one point that these rights no one had the power to part with, and hence no government could ever acquire the right to violate them.

Directors’ Duties

2018 ◽  
Author(s):  
Victor Joffe QC ◽  
David Drake ◽  
Giles Richardson ◽  
Daniel Lightman QC ◽  
Timothy Collingwood
Keyword(s):  
Common Law ◽  
Corporate Law ◽  
Legal Analysis ◽  
Legal Personality ◽  
Reasonable Care ◽  
A Company ◽  
Normative Role

The general duties imposed upon directors are the corollary of their powers; they spring from the directors’ functional and normative role in conducting the company’s affairs and affecting its legal relations. Corporate law and the constitution of the company repose in them powers to act, within certain bounds, in the company’s name. And in doing so, they necessarily affect all those interested in the company’s fortunes: most fundamentally, its members. The separate legal personality afforded to a company serves, for the purposes of legal analysis, as a nexus for its members’ interests, and makes it possible to describe directors in the exercise of their powers as agents for the company. These tenets explain the origin of some of the basic duties that apply to directors in relation to the exercise of their functions: to promote the interests of the company; to exercise reasonable care, skill, and diligence; not to exceed the limits of their powers; not to profit from their position; and not to place themselves in positions where their own interests or other duties conflict with their duties to the company. In doing so, they draw on equitable and common law principles of wider application, to agents, trustees, partners, and professionals.

1. Introduction

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
Human Rights ◽  
International Human Rights Law ◽  
Bill Of Rights ◽  
Human Rights Law ◽  
Right To Life ◽  
International Human Rights ◽  
Human Rights Organizations ◽  
Protection Of Human Rights ◽  
The Right

This introductory chapter introduces the theme of this book, which is modern international human rights law. The book traces the unprecedented expansion in the internationally recognized rights of all people with acceptance of a human rights dimension to the quest for international peace and security following the formation of the United Nations in 1945. It examines the International Bill of Rights and the regional protection of human rights, and describes several human rights organizations including the Organization of American States and the African Union. The book discusses different types of rights, including the right to life, the right of liberty to persons, and the right to work, and also evaluates the monitoring, implementation, and enforcement of human rights laws.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

5. Corporate personality

2016 ◽  
Author(s):  
Derek French ◽  
Stephen W. Mayson ◽  
Christopher L. Ryan
Keyword(s):  
Human Rights ◽  
Corporate Law ◽  
Court Cases ◽  
Controlling Shareholder ◽  
Legal Personality ◽  
Legal Proceedings ◽  
Personal Rights ◽  
Piercing The Corporate Veil ◽  
A Company ◽  
Corporate Personality

This chapter deals with the legal personality of a company which is separate from its members, capable of owning property, entering into contracts, and being a party to legal proceedings. It considers the case Salomon v A Salomon and Co Ltd [1897] AC 22, in which the courts affirmed separate corporate personality by rejecting attempts, on behalf of creditors, to impose liability for a failed company’s debts on its controlling shareholder. The consequences of separate corporate personality are also discussed, particularly with respect to a company’s human rights (or personal rights). In addition, the chapter examines the process known as ‘piercing the corporate veil’ in relation to the evasion principle; how an artificial entity can have legal personality; and a number of particularly significant court cases. Finally, it looks at corporate law theory and the issue of company linguistics.

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