Document Type : Original Article
Highlights
Non-judicial solutions to combat abuse of power: with emphasis on state-owned companies
Abstract
One of the most important issues in corporate law is the abuse of rights by partners. Meanwhile, according to the rule of majority, which is the law governing commercial companies, the majority play a pivotal role in the decisions and actions of companies, the result of which can be the abuse of rights and powers in the interests of the minority. In other words, the application of the majority rule involves concentrating the company's forces in the hands of the majority of shareholders, which it can abuse. However, the theory of abuse of rights is not introduced in Iranian law as it is in the law of countries such as France. But the “La zarar” rule, which is crystallized in Iranian law, including the constitution, can have the same function as the rule prohibiting the abuse of rights in commercial companies.
The research question is through what solutions restrictions can be imposed on the rule of law exercise by the majority so that this rule is not abused. The results of the research show that these solutions can be divided into judicial and non-judicial solutions and in this research only non-judicial solutions to combat abuse of rights in commercial companies have been examined. Non-judicial solutions refer to the agreements of the shareholders within the company, which are made according to the contract. This contract is approved in the form of articles of association in private and public companies, according to which the shareholders conclude agreements with each other and with the board of directors and the managing director. To answer the question, first the concept of abuse of rights and the rule of majority in commercial companies is examined and then non-judicial solutions to prevent abuse of rights are discussed.
Numerous cases show that the legislator has not allowed the abuse of rights, and especially in the commercial law and especially in the discussion of joint stock companies, this is well observed, although the legislator in many cases determines and approves It has taken over the affairs of the company from the majority, but has provided legal rights for minority shareholders who can defend their fraudulent rights and the value of their shares in the event of abuse by the majority or improper management of minority affairs. Among these cases, the right to file legal and criminal liability lawsuits by the beneficiaries or shareholders of the company in cases of violation or negligence of the General Assembly, directors, board of directors and inspectors. In various cases in commercial law, based on the harmless rule, solutions can be deduced to combat the abuse of the majority by the minority.
Keywords: abuse of rights, commercial companies, majority rule, non-judicial solutions
