MAJETKOPRÁVNÍ SAMOSTATNOST KAPITÁLOVÉ OBCHODNÍ SPOLEČNOSTI A VYBRANÉ ASPEKTY OCHRANY JEJÍCH VĚŘITELŮ

Proprietary separation of the capital companies from their members is one of the consequences of their legal personality. The fact that the company’s property and the property of the members exist as two separate entities has ambivalent consequences for creditors. Positive is that it prevents the members of the company from using the company’s property to pay their own debts, negative is that it takes away from the creditors the possibility to satisfy their title from the property of its members. The protective institutes of the Civil Code, both the special provisions of protective character (ss. 630 (2), 1315 (3), 1963 and following, ss. 2629 (2), 2898 of the act no. 89/2012, the Civil Code) and the general clauses (s. 3 and s. 433 of the Civil Code) are applicable in order to protect the creditor who is the weaker party. Also the Company Act contains provisions of protective character. In the widest meaning, it is the regulation that a company should have its “starting” capital and that it should not distribute this and other property which will be produced among the members of the company at the expense of paying its debts to the creditors. The protection of creditors in narrower sense and with greater protective potential is provided by the provisions of the company law which enable the creditors to satisfy their claims from the property of the members of the bodies of the company (if they breached their duty of care and fiduciary duty) or of the members of the company (if they breached their duty of loyalty). The liability has penal character and arises from the law or from a decision of a court. The text considers in particular also the consequences of non compliance with the balance-sheet test and the test of solvency which are new institutes of the Czech company law.