Dreptul societăților comerciale
Înființarea societăților, obligațiile directorilor, insolvența și dreptul asocierilor.
Introducere
Dreptul societăților reglementează crearea, managementul și dizolvarea întreprinderilor.
Principii fundamentale
Separate Legal Personality — A company incorporated under the Companies Act is a legal entity separate from its members (Salomon v A Salomon & Co [1897]). The 'corporate veil' is only rarely pierced (Prest v Petrodel [2013]).
Limited Liability — Shareholders' liability is limited to the amount unpaid on their shares (for companies limited by shares) or the amount of their guarantee (for companies limited by guarantee).
Directors' Duties — Codified in ss.171–177 CA 2006: duty to act within powers (s.171), duty to promote the success of the company (s.172), duty to exercise independent judgment (s.173), duty to exercise reasonable care, skill and diligence (s.174), duty to avoid conflicts of interest (s.175), duty not to accept benefits from third parties (s.176), and duty to declare interest in proposed transactions (s.177).
Shareholder Remedies — Minority shareholders can petition for unfair prejudice under s.994 CA 2006 (the most common remedy, typically resulting in a buy-out order) or bring a derivative claim under ss.260–264 on behalf of the company for wrongs done to it.
Corporate Governance — The UK Corporate Governance Code (applicable to listed companies on a 'comply or explain' basis) sets standards for board composition, audit, remuneration, and shareholder engagement.
Insolvency — When a company cannot pay its debts, it may enter administration, liquidation, or a company voluntary arrangement (CVA). The Insolvency Act 1986 governs the process, including wrongful trading (s.214) and fraudulent trading (s.213) provisions imposing personal liability on directors.
Partnership — The Partnership Act 1890 governs general partnerships (unlimited liability). Limited partnerships are governed by the Limited Partnerships Act 1907, and Limited Liability Partnerships by the LLP Act 2000, which combines partnership flexibility with limited liability.
Company Formation — A company is formed by registration with Companies House, requiring a memorandum and articles of association. The articles (usually based on the Model Articles) form a statutory contract between the company and its members (s.33 CA 2006).
Statute cheie
Companies Act 2006
Insolvency Act 1986
Partnership Act 1890
Limited Liability Partnerships Act 2000
Corporate Insolvency and Governance Act 2020
Cazuri de referință
O'Neill v Phillips
[1999] 1 WLR 1092
Re Barings plc (No 5)
[2000] 1 BCLC 523
Scenarii comune
Director uses company funds for personal expenses
This likely breaches the duty to avoid conflicts of interest (s.175 CA 2006), the duty to promote the success of the company (s.172), and may constitute a breach of fiduciary duty. The company can recover the funds, and other shareholders could bring an unfair prejudice petition (s.994) or derivative claim (s.260).
Minority shareholder excluded from management
In a quasi-partnership company, exclusion from management may constitute unfairly prejudicial conduct under s.994 CA 2006. The usual remedy is a buy-out order at fair value (O'Neill v Phillips [1999]). The petitioner must show the conduct complained of was unfairly prejudicial to their interests as a member.
Company trading while insolvent
Directors who allow a company to continue trading when they knew or ought to have concluded there was no reasonable prospect of avoiding insolvent liquidation may face personal liability for wrongful trading under s.214 Insolvency Act 1986. The defence is that the director took every step to minimise potential loss to creditors.
Business partner takes clients to a competing firm
In a general partnership, partners owe fiduciary duties including a duty not to compete (s.30 Partnership Act 1890) and to account for profits from competing activities. In a company context, this would breach s.175 CA 2006 (conflicts of interest). Remedies include an account of profits and injunctive relief.