The dissertation is one of the first in the domestic science of civil law a special comprehensive comparative legal study of the liability of members of business partnerships under the laws of Ukraine and some foreign countries.
The purpose of the dissertation research is to carry out a comparative legal analysis of civil and corporate liability of members of business partnerships under the laws of Ukraine and some foreign countries, as well as to formulate theoretically sound proposals to improve existing regulations in this area.
It is determined that the participants of business associations in the emerging relationships are subject to civil or corporate liability. It is stated that corporate liability cannot be reduced to civil liability, cannot be identified with it or recognized as a kind of such liability, as civil liability is inherently an impact on the property of the offender, while corporate liability is as property, and (to a greater extent) organizational influence associated with the implementation of corporate rights.
The legal bases of participation in joint-stock companies, in limited and additional liability companies, general and limited partnerships are described. It has been established that the right to participate in business partnerships is usually associated with a set of corporate rights.
It is established that the participants of business partnership as subjects of civil liability are liable for the obligations of the company with third parties, as well as for their own obligations to the company and other members. In order to be liable, members of business partnership must have civil legal personality, which includes civil legal capacity, civil capacity and tort capacity. The moment of origin and features of civil legal personality of individuals and legal entities as subjects of civil and corporate responsibility are analyzed.
An updated concept of civil liability of participants of business partnerships is proposed. Civil liability of members of business partnerships is defined as the application of authorized (jurisdictional) body or creditor property sanctions against the offender in order to compensate for property and/or moral damage caused by the offender to the victim.
It is established that civil liability occurs before the emergence of the company; and in the case of damage in relations with third parties with whom the subjects of the damage are not in a corporate relationship, but it is related to the exercise of corporate rights; in relations between the parties to the shareholder agreement.
In accordance with the current legislation, the classification of civil liability of participants of business partnerships according to such criteria as: type of business partnership; legal basis of civil liability; the amount of civil liability of participants of business partnerships; type of violated right; the number of participants who violated their rights and responsibilities; composition of a civil offense as a factual basis; the presence of guilt as a condition of civil liability, etc.
The concept of corporate responsibility is defined as a sanction applied within the framework of corporate legal relations and are negative (adverse) additional consequences of property, moral or organizational nature for violation of corporate rights, abuse of such rights, violation of legally protected interests, as well as for non-performance (improper performance) of obligations under the law, corporate agreement, statute, local legal acts.
It was found that the signs of corporate responsibility of participants in business partnerships are as follows: it is a sanction; entails for the violator additional negative consequences of property, organizational, moral nature; has a factual basis for a corporate or managerial offense; applies to members of business partnerships and corporate entities; the range of persons to whom participants are corporately responsible includes participants in corporate relations, creditors and other stakeholders; its purpose is to punish the violator and ensure the protection of the rights of corporate parties, creditors and other stakeholders; has its own measures of responsibility and the procedure for their application.
It is established that the participants of business partnerships are corporately liable to the company, other members of the company, creditors of the company. The current legislation of Ukraine provides for cases where the depositor (in a limited partnership) must be liable both to the creditors of the company and to the company itself if the depositor has not fulfilled or improperly fulfilled its obligation to make deposits.
Specific scientifically substantiated proposals on improvement of acts of the current legislation of Ukraine in the part of legal regulation of responsibility of participants of business partnerships are formulated.
