U radu se raspravlja o problemu potkapitalizacije trgovačkih društava francuskog prava. Daje se pregled polazišta u francuskom pravu društava o pitanju potkapitalizacije. Posebice se istražuje tko ...odgovara i kome za slučaj potkapitalizacije društva. Nadalje, istražuje se pravni položaj voditelja posla. Razmatra se i pitanje odgovornosti člana društva za potkapitalizaciju a u tom kontekstu raspravlja se o odgovornosti člana za proboj, odgovornosti člana za naknadu štete te njegovu odgovornost zbog povrede dužnosti lojalnog ponašanja prema društvu. Rezultati istraživanja o problematici potkapitalizacije trgovačkih društava uspoređuju se s odgovarajućim rješenjima u hrvatskom i njemačkom pravu društava.
The issue of undercapitalization of companies of capital is discussed in French literature, but also in court practice. If the company founders furnish their company with insufficient capital, i.e. ...capital that is not adequate to the scope of the planned entrepreneurial undertaking, the company members could be liable to the company creditors. The topic of responsibility for undercapitalization is particularly discussed in regard of the standing point that the introduction of 1-euro SARL will result in application of rules on responsibility of the management (manager of the business operation), so that factually (even if only indirect) the principle of non-responsibility of members for the liabilities of a company is neglected. The company management is responsible for an adequate ratio of the company capital and the volume of the business operations. If the management fails to take care of this, there is a risk that creditors will appeal before court for indemnification of caused losses. Such a conclusion is disputed, since the justified question appears, whether the furnishing of a company is the duty of the company members and not the management. Based on prevailing opinions in French literature and the court practice, the manager of a certain business operation is responsible because he manages an undercapitalized company and undertakes business activities that are not in compliance with the financial possibilities. Review of the court practice in the sense of applicability of appeals for indemnification of losses caused to a company in cases of material undercapitalization shows that the French law doesn’t take a common standing point on the threshold of such material undercapitalization, i.e. factual preconditions for an individual case to define a material undercapitalization. The main objection against such an appeal is that creditors. Besides this legal aid have no other way to appeal based on general rules on management responsibility, nor can they appeal for indemnification of damages. On the other side, the possibility that a court can award a higher amount than the one appealed on account of a mistake in managing the company businesses than the manager is liable for, seems to be subject to criticism and is considered an overly and inadequate responsibility.
International uniform law envisages a number of situations in which a breach is said to have occurred prior to the time agreed upon for performance. In the area of international sales contracts, ...arts. 71, 72, and 73(2) of the United Nations Convention on Contracts for the International Sale of Goods (hereafter "CISG"), applicable to both the buyer and the seller, lay down, on the one hand, the situations in which an anticipatory breach is deemed to have occurred and, on the other hand, the remedies available to the aggrieved party. In other words, these provisions designate the circumstances in which, even though no breach of contract has yet been committed and the time for performance of the obligation has not yet elapsed, a party may, in order to protect his own interests, temporarily stop complying with his contractual obligations or completely free himself from those obligations. In this respect, arts. 71, 72, and 73(2) CISG differ from arts. 49 and 64 CISG, which govern the right of the aggrieved party to avoid the contract when performance is overdue, that is when the other party has actually committed a fundamental breach of contract. Under art. 71 CISG, if it becomes apparent that one party will not perform a substantial part of his obligation, the other party may suspend performance of his obligations. The innocent party is however compelled to restore performance if the other party provides adequate assurance of performance. Such assurance may be considered adequate even if it shows that performance might not be complete and perfect. Furthermore, the failure, by one party, to provide adequate assurance of performance does not constitute, in itself, a fundamental breach, and consequently does not authorize the other party to declare the contract avoided. In turn, the conditions that ought to be satisfied, under art. 72 CISG, for the innocent party to be entitled to declare the contract avoided, are more onerous than those of art. 71 CISG. They require that the future occurrence of the breach be objectively "clear" (rather than just "apparent") and that the suspected breach be of fundamental nature. Furthermore, in the case of art. 72 CISG, the innocent party must give notice to the other party prior to the declaration of avoidance, in order to allow the latter party to provide adequate assurance of performance.
Ventures in the field of exploitation of hydrocarbons are expensive and complex operations. They require the participation of partners who have sufficient financial resources, special expertise and ...skills. The paper discusses major issues that should be regulated by these contracts. The aim of the joint venture in the field of oil exploitation consists, in simple terms, of the research phase, of drilling and well completion phase and of setting up the production plant, i.e. the production phase. Undertaking is conducted in the form of partnership or in form of capital company. Thus, the initial articles of the contract provide definitions of terms. Then the agreement regulates the issue of partners shares entered into a joint venture and in particular the value of each share. In the agreement, the partners must identify all the essential information about the exploration field and wells. The agreement should regulate the legal status of operators, insurance funds, the standard of quality in the performance the right to information and monitoring. Partners must accept the financing plan and set rules for the case that one of the partners does not meet its obligations under the financing plan. Partners must decide on the right to transfer shares to other partners or third parties. Furthermore, the contract must regulate the issue of termination and legal consequences of such a declaration but also set the conditions for a valid termination. The contract must also provide a mechanism to resolve conflicts and must specify which law applies in the event of a dispute.
Simple Private Limited Liability Company is already more than a year a part of Croatian legal system. Statistical data show that this company enjoys relatively high popularity and it can be concluded ...that it meets the practical needs of its founders. However, numerous legal issues arising in connection with this type of limited company are not fully clarified. This legal form is a reasonable choice for founders who do not have the necessary capital and who does not want to give up the privilege of irresponsibility for liabilities of the company. Given the fact that this is actually a transitional form that precedes the classic form of limited liability company, it only strengthens position of the latter. The main feature of this company is that it can be established with a ground capital of just 10 Kuna and solely monetary inserts are allowed. On the other hand, it must form the legal capital reserves that can later be transformed into the ground capital of the company.
U radu se raspravlja o važnim pitanjima u svezi s pravnim položajem trgovačkih društava koja obavljaju energetske djelatnosti. Tu bi djelatnost mogli obavljati i trgovci- fizičke osobe, ali zbog ...osobne izloženosti razumljivo je da će glavni nositelji biti društva kapitala, a prvenstveno društvo s ograničenom odgovornošću. Iako je tu još uvijek riječ o pravnim oblicima uređenima Zakonom o trgovačkim društvima, na njih se kao lex specialis primjenjuju odredbe energetskih zakona. Odredbe tih propisa nameću trgovačkim društvima dodatna pravila ponašanja ili se njima zauzima drugačiji pristup nego se konkretno pitanje uređuje ZTD-om, na što je potrebno skrenuti pozornost. Utvrđuju se pretpostavke za dobivanje dozvole za obavljanje djelatnosti, pravila o ustroju tih trgovačkih društava, pretpostavke za članstvo u upravi i nadzornom odboru i dužnostima tih organa, problematici povezanih društava te posljedicama koje nastaju u slučaju statusnih promjena kod društava koja su nositelji energetskih djelatnosti. Problematika trgovačkih društava u energetskom pravu Republike Hrvatske sagledava se i kroz pitanje slobode djelovanja inozemnih trgovačkih društava kod nas.
The new Electricity Market Act, which was published in the official gazette “Narodne novine” no. 22/2013, entered into force in the beginning of March 2013. The new Act reaffirms the previous ...regulatory organisation of the energy sector in the Republic of Croatia, where the “basic” Energy Act (Official Gazette No. 120/12) exists concurrently with special acts which regulate particular energy sectors. The reasons for the passing of the new Electricity Market Act are closely related to the obligation of further harmonisation of the Croatian national energy legislation with the EU acquis. In addition to the harmonisation, the aims of the new Act are to ensure adequate and safe conditions for the energy supply of all consumers, further development growth of the market and competitive prices of the electricity. A significant change of the previous organization of the electricity market has been made in relation to transmission system operators, given that the autonomy of transmission system operator has been envisaged, i.e. its positioning outside of the structure of a vertically-integrated power operator. Regarding the area of renewable energy sources and cogeneration, the new Act does not guarantee the connection of all producers of electricity from renewable energy sources and cogeneration to the power grid. However, with the implementation of the new Act in practice and full market orientation of the separated transmission system operator, an increased efficiency of administrative procedures is expected with a view of their expeditious connection to the power grid and ensuring the efficient delivery of the produced electricity. Since the opening of Croatian energy market, privately own companies are encouraged to take part in such undertaking. The Croatian Companies Act regulates business entities as including also categories that, due to their different legal properties, are not always regarded corporate in some other legal systems (e.g. partnerships, as defined by Croatian law). Companies based on capital include a private limited company, simple private limited company, a public limited company, an economic interest association. Partnerships include a general partnership and a limited partnership. It is important to note that Croatian energy laws act as lex specialis towards the norms of the Croatian Companies Act.
The CISG requires buyers to inspect goods, and provide adequate and timely notice, with respect to any defects in the seller’s performance and preserve the goods in the event the buyer elects to ...reject the seller’s tender. These obligations are set forth in Articles 38, 39, 44 and 86. The initial obligation of all buyers is the duty of inspection. Article 38 provides that the buyer “must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.” Special rules apply in the event the contract involves the carriage of goods or their redirection in transit. Examination may be deferred until after the goods arrive at their destination in the event the contract involves carriage. By contrast, examination of the goods may be deferred until after their arrival at their ultimate destination in the event they have been redirected in transit or re-dispatched by the buyer. However, the inspection may be deferred under these circumstances only if the redirection or re-dispatch occurred without a “reasonable opportunity” for examination. In addition, the buyer must demonstrate that the seller knew or should have known of the possibility of such redirection or re-dispatch at the time of the conclusion of the contract. The failure to comply with the provisions of Article 38 deprives the buyer of the right to rely upon the defense of nonconformity of the goods in a future dispute with the seller.
U radu se raspravlja o problematici ustroja nogometnih klubova u SR Njemačkoj uz poredbeni prikaz rješenja koje nudi hrvatski Zakon o športu koji je temeljni propis u svezi s ustrojem nogometnih ...klubova u našoj zemlji. Središnje pitanje istraživanja su njemačka rješenja za ustroj klubova kojima je predviđeno da, uvijek kada je prednik udruga, klub ustrojen kao društvo kapitala mora dopustiti da spomenuta sportska udruga ima većinu u tom društvu (model 50 % dionica +1 dionica odnosno udjela). U tom smislu valja razmotriti sve prednosti i nedostatke takvog modela te se na kraju daje ocjena koje se pouke mogu izvući iz takvog pristupa pravnog uređenja ustroja klubova. Posebno se u radu obrađuje pitanje podjele (odvajanja) sekcije licenciranih igrača nogometne udruge i stvaranje (osnivanje) sportskog dioničkog društva. Njemački Zakon o preoblikovanju uređuje mogućnost da se ta statusna promjena provede i nad udrugom. Takva rješenja valja usporediti s propisima koji uređuju statusne promjene kod trgovačkih društava. U radu se također raspravlja o gospodarskim okolnostima u kojima posluju naši nogometni klubovi u odnosu na njemačke nogometne klubove.
