Article | On the Correlation of Corporate Rights, Business Organization Powers and Organization Incorporation Powers of the Owner |
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Authors | ANDRII SMITIUKH |
Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
Issue | 6 / 2018 |
Pages | 132 - 142 |
Annotation | The article offers a generalized view on the correlation of such categories of economic law as corporate rights, business organization powers and organization incorporation powers of the owner. The Economic Code of Ukraine provides for three distinct categories, namely, the categories of corporate rights, organization incorporation powers and business organization powers. The first two categories are used in and defined by the Civil Code of Ukraine; however, there is no clear understanding of the correlation of these categories in the doctrine as well as in positive law. The author demonstrates that business organization powers cover the organizational rights of members of unitary enterprises, as well as organizational (non-property) corporate rights in case their scope allows exercising a decisive corporate influence on corporate enterprises. Therefore, it seems expedient to amend the Civil Code of Ukraine and incorporate into it a provision according to which business organization powers in respect of an enterprise already established should be understood as powers of the enterprise’s member and not as that of the property owner. The concept of the owner’s organization incorporation powers should be reconsidered as the property owner’s right, solely or jointly with other owners, by virtue of the property owned by the owner (-s), to establish business organizations or carry out business activities via other legal forms of business incorporation not prohibited by law, and to determine, at own discretion, the goal and objective and the structure of a business entity thus established, as well as the composition and competence of its governing bodies, and other issues relating to incorporation of an enterprise. In this context, the owner’s organization incorporation powers undoubtedly are a type of business organization powers. As soon as an enterprise has been established, the owner’s organization incorporation powers are realized and exhausted, and this entails the onset of corporate rights in respect of corporate enterprises. |
Keywords | property; enterprise; corporate rights; business organization powers; organization incorporation powers |
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