Duty of loyalty of a member of a limited company The thesis focuses on the issue of the duty of loyalty which has been imposed on the members of capital companies by the newly adopted private law legislation as enshrined in the new Civil Code, No. 89 / 2012 Coll., and in the Business Corporations Act, No. 90 / 2012 Coll., as amended and supplemented up to now. The paper compares the newly adopted legal framework which is already in force with the previous legal regulation and describes the most significant changes and differences as brought by the new legislation. Attention was also given to the relevant case law and to the issue of its possible application when connected with the new legal framework. It can be stated that the conclusions derived from the existing case law which has been based on the previous legal framework are applicable also to the newly recodified system. A summary of the overall impacts of the new legal rules shows that the imposition of the duty of loyalty on the members of capital companies in civil law strengthens the principle of legal certainty and eases the determination of those member duties which are not literally imposed by the law or by a memorandum. Albeit the duty of loyalty is a rule of conduct created by the written law, it is general enough to evaluate on its basis...

The thesis focuses on the concept of the duty of due managerial care as regulated in the legal framework of the Czech Republic and the Federal Republic of Germany; in particular, the comparison is aimed at the application of this duty against the members of the board of directors and the supervisory board of the joint-stock company and the executives of the limited liability company. The thesis first describes the duty of due managerial care as a standard of conduct. Chapter 3 describes the particular consequences of said duty for the conduct of the members of the board of directors and the supervisory board of the joint-stock company. Chapter 4 is focused on the reflection of this duty on the legal relationships within the limited liability company. Chapters 3 and 4 each include a partial conclusion concerning the most important differences as well as the effectiveness of the respective legal regulation. Chapter 5 is divided into two parts, differentiated according to the legal form of the company in question, and concerns itself with the liabilities following from the breach of said duty. Particular attention is paid to the possibilities of shareholders (members) to influence - whether ex ante or ex post - the said liabilities, as this area is marked by the most significant differences when...

This paper argues that the despite the apparent rejection of the shareholder primacy model by the Supreme Court of Canada in Peoples Department Stores Inc. (Trustee of) v. Wise and BCE Inc. v. 1976 Debentureholders, there is a strong tradition of shareholder primacy in Canada that has persisted in jurisprudence and legislative materials. The dislodging of shareholder primacy as the guiding force in directors’ duties is discordant with this tradition and per incuriam. As such, at the moment, the duty of loyalty of directors to the corporation is adrift, lacking substantive guidance from the Supreme Court. This guidance, this paper argues, can be found in the “enlightened shareholder value” model embodied in s. 172 of the United Kingdom’s Companies Act 2006 which holds to shareholder primacy while exhorting directors to adopt an inclusive approach to the interests of non-shareholder stakeholders.

This paper argues that the despite the apparent rejection of the shareholder primacy model by the Supreme Court of Canada in Peoples Department Stores Inc. (Trustee of) v. Wise and BCE Inc. v. 1976 Debentureholders, there is a strong tradition of shareholder primacy in Canada that has persisted in jurisprudence and legislative materials. The dislodging of shareholder primacy as the guiding force in directors’ duties is discordant with this tradition and per incuriam. As such, at the moment, the duty of loyalty of directors to the corporation is adrift, lacking substantive guidance from the Supreme Court. This guidance, this paper argues, can be found in the “enlightened shareholder value” model embodied in s. 172 of the United Kingdom’s Companies Act 2006 which holds to shareholder primacy while exhorting directors to adopt an inclusive approach to the interests of non-shareholder stakeholders.

Freedom of expression and the right to criticize are important prerequisites in the Swedish labor market. In fact, the freedom of expression is regulated in a long chain of protection, and not at least for the public employees which have the ECHR’s protection and the Swedish constitution embedded in their employment contracts. For the private employees, on the other hand, the legal situation looks completely different. A private employee does not receive equal opportunities to invoke the ECHR or the Swedish constitution when criticizing the employer. The main purpose of this paper is thus to investigate the legal situation for each sector, after which the legal situation must be compared and discussed in light of the duty of loyalty.  As the right to criticize has become a major issue for discussion, Sweden received a whistleblower regulation in 2017 which came to protect workers from reprisals. Nonetheless, a couple of years have passed, and a new EU-directive has been introduced with a number of new requirements. In December 2021, Sweden will introduce a more comprehensive whistleblower regulation and replace the current regulation. The second purpose of this paper is accordingly to investigate the new protection and examine the possible impact of the protection in each sector.  The conclusions of the paper were not entirely easy to summarize. What is clear is that there is no uniform protection in the sectors, and the enhanced protection may result in a smaller gap between the sectors, despite different interests.

The Duty of Loyalty of a Director of a Company and the Duty of Loyalty of a Member of a Company in Their Mutual Comparison Abstract According to the valid legislation, both the member of a company and the director of a company are subject to the duty of loyalty. The duty of loyalty has different content in relation to these persons and affects them with different intensity. The aim of this thesis is to compare selected aspects of the duty of loyalty of the member of company and the director of company. The first part presents initial doctrinal and judicial evolution of the duty of loyalty of the member of company and the director of company in the legal order of the Czech Republic. Furthermore, the essence (creative elements) of the duty of loyalty of mentioned persons is discussed. In this context, legal doctrine concludes that the essence of loyalty of the member of company and the director lies, amongst other matters, in contract. However, each of these persons has a different obligation, which is associated with different rights and duties of the relevant members of company's bodies. The aim of the first part is to develop the issue, which I consider crucial for understanding arguments and conclusions presented in the thesis. In the second part, I try to identify the interest which the member of company...

In 2019 the European Union presented a new directive, Directive (EU) 2019/1937 of the European Parliament and the council of 23 October 2019 on the protection of persons who report breaches of Union law. An EU-directive needs to be implemented into the national law of every member state, which for Sweden resulted in a new law regarding whistle-blowing: Law (2021:819) about protection for persons reporting misconduct, or in Swedish, Lag (2021:819) om skydd för personer som rapporterar om missförhållanden. The directive is a minimum directive, which means that all of its content needs to be implemented into national law, but there is no stopping member states from giving further protection than the directive. This paper aims to analyse the new Swedish law, how it differs from the directive and earlier Swedish law regarding whistleblowing, how it interacts with other Swedish regulations and most importantly if and how the new law strengthens the protection of whistleblowers. Our focus will be on the perspective of the employee and what the new law can mean for them, along with discussing differences in protection between the public and private sector.  In order to fulfil our purpose we will in our legal investigation first present some background information surrounding whistleblowing to create an understanding of the concept and its importance. Then we will follow the legal hierarchy and firstly present information surrounding international and EU-law, then present relevant Swedish regulations that are of importance to whistleblowing. Furthermore there will be a presentation of both the old Swedish law regarding whistleblowing and the new Swedish law and how it is based off of the directive. During the legal investigation some case law, both from the European Court of Human Rights and the Swedish court, will be presented to explain some background to the origin of the EU-directive and to analyse if and how the new Swedish law could be of help in the Swedish case. Finally there will be an analysis based on our legal investigation where we answer and discuss our research question.

The diploma thesis is focused on the duty of loyalty of shareholders (members). Although some legal experts consider this duty as a basis of any private law relations, duty of loyalty remains mainly overlooked in the business law area. Firstly, the diploma thesis explores the duty in broader view and describes its functioning in other countries, where duty of loyalty is traditionally respected: United States of America and Germany. The thesis continues to the development of the duty of loyalty in Czech Republic. Before 2014, this duty was not explicitly included in Czech law or no wide consensus about the legal source of this duty. The loyalty principle has begun to be recognized in 2006, when legal experts started to work with this term and set theoretical basis for this duty. Even if there was no consensus about the scope and range of the duty of loyalty and the existence of this duty itself, the duty of loyalty has been established in the judicature of Czech courts. Even Supreme and Constitutional Courts accepted this duty in its decisions. The role of Judicature for the duty of loyalty and its contend is significant. The change of Czech private law has brought substantial changes of this duty. From the 1st January 2014, the duty of loyalty is explicitly part of the Czech law and may be found in...

The duty of loyalty of a member of a business company This thesis deals with the topic closely connected with the field of corporate governance which is a part of corporate law. According to the American legal theory is duty of loyalty one of the fiduciary duties. The traditional classification of fiduciary duties is based on dualism - duty of loyalty and duty of care. But this concept is changing over time mainly due to case law. There is no settled opinion on the basic question how many fiduciary duties there are. Current opinion of the respected authority in this field - Delaware' Supreme Court is based on dualism of fiduciary duties, but not in the traditional meaning. The duty of loyalty includes according to the opinion of the judges not only conflicts of interests and self-dealing situations, but breach of good faith as well. On the other hand the traditional point of view was settled on two fiduciary duties - loyalty and care as well. Duty of loyalty was connected with conflicts of interest situations between principal and agent, when the personal financial interest of the agent was present. Duty of loyalty protected the legal position of the principal when agent managed entrusted property. The duty of care was connected with the interest of the principal and due performance of the agent with the...

The dissertation is focused on research of the general duties of members of the board of directors in a capital company, in particular the duty of loyalty. Besides the duty of loyalty, members of the board of directors have a duty to act with due managerial care. The doctrine paid attention to the specification of the duty to act with due managerial care but there has, as yet, been no attention paid to the duty of loyalty. The new legislation contained in the Civil Code Act n. 89/2012 Sb. (CC) subordinates the duty of loyalty under the duty to act with due managerial care. The subject of the dissertation is research of the nature, origin, and function, of the duty of loyalty. The conclusion of the dissertation is the confirmation of the hypothesis, that the duty of loyalty by which a member of the board of directors is bound, is a fiduciary duty and an independent duty, which is not a part of the duty to act with due managerial care.