Article | Corporate Agreement as an Effective Legal Remedy in the Mechanism of Corporate Governance, its Essence and Legal Nature |
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Authors |
VIKTORIIA RIEZNIKOVA
Doctor of Law, Professor, Head of the Department of Business Law and Business Process Institute of Law, Taras Shevchenko National University of Kyiv (Kyiv, Ukraine) ORCID ID: https: //orcid.or/0000-0003-0149-0710 Researcher ID: http://www.researcherid.com/rid/O-4799-2018 reznikova.vv78@gmail.com
LINA DOROSHENKO
Ph.D. in Law, Associate Professor, Associate Professor of the Department of Economic Law and Economic Jurisdiction of the Educational and Scientific Institute of Law of Taras Shevchenko Kyiv National University (Kyiv, Ukraine) ORCID ID: https://orcid.org/0000-0001-9748-6358 doroshenkoln1@gmail .com
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Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
Issue | 4 / 2022 |
Pages | 13 - 28 |
Annotation | The article analyzes the issues that arise in the process of applying a corporate agreement as a tool for improving corporate governance processes. The purpose of the article is to determine the nature and legal nature of the corporate agreement, its role as a legal tool in the mechanism of corporate governance for improving the organization of corporate legal relations and promote the effectiveness of corporate organizations. The principle of freedom of a corporate agreement, the subject of such agreement, was analyzed, the conditions that are prohibited to include in a corporate agreement by law were determined. It was proved that a corporate agreement is mostly a source of additional responsibilities for members of corporate organizations, and restricts the freedom to realize corporate rights, so it is advisable to consider the terms of a corporate agreement not only as a group of corporate rights but also as responsibilities. It was proposed to divide into groups corporate rights (obligations), which are the subject of the corporate agreement, according to such criteria as content and direction, namely: 1) corporate rights (obligations) to participate in the governance of the company; 2) corporate rights (obligations) to acquire and (or) alienate shares (stocks) in the authorized capital (its parts) at a certain price or in case of certain circumstances or abstinence from alienation of shares (stocks) before their occurrence; 3) corporate rights (obligations) to perform actions related to the termination of the company as a subject of law or the separation of a new company from it. It was argued that a corporate agreement is a legal means of organizing relations between business entities, namely directly by the company itself, as well as by other participants in corporate relations as a type of economic relations – founders, participants, third parties. It was substantiated that a corporate agreement by its legal nature is a business agreement, which reflects a combination of organizational and property elements that is inherent in business agreements, that’s – it is a regulator of rights and obligations arising from interrelated and interdependent organizational-economic and property-economic relations that exist in inseparable unity. The advantages of the corporate agreement and its significance in the system of optimally high-quality management of a joint-stock company, limited and additional liability companies were highlighted. Based on the research done, it was concluded that the corporate agreement can be considered as: 1) the institution of economic law, as a set of economic law governing relations in the field of conclusion, execution and termination of a corporate agreement, 2) legal tool (instrument) in the corporate governance mechanism , which serves as a way of self-regulation of the rights and obligations of the parties to the corporate agreement; 3) local act, one of the main sources of regulation, although not normative in nature, but those that establish rules of governance, created for repeated use by the members of the corporate organization and whose task is to construct the internal structure of the corporate organization.
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Keywords | corporate agreement; agreement between the company’s shareholders; legal nature; parties to the agreement; corporate governance |
References | Bibliography
Authored books 1. Belianevych O, Hospodarske dohovirne pravo Ukrainy (teoretychni aspekty) (Iurinkom Inter 2006) (in Ukrainian).
Edited books 2. Sibilov M, ‘Do pytannia pro pravovi zasoby sfery pryvatnoho prava’ v Aktualni problemy pryvatnoho prava Ukrainy: Zbirnyk statei do yuvileiu doktora yurydychnykh nauk, profesora Natalii Semenivny Kuznietsovoi (Maidanyk R, Kokhanovska O red, Yurydychna praktyka 2014) (in Ukrainian).
Journal articles 3. Bodnar T, ‘Dohovirni zobov’iazannia yak katehoriia tsyvilnoho prava’ (2004) 61 Visnyk Kyivskoho natsionalnoho universytetu imeni Tarasa Shevchenka. Yurydychni nauky 74, 75 (in Ukrainian). 4. Bratus’ D, ‘Ponjatie “juridicheskaja priroda”: aktual’nye problemy teorii i praktiki’ (2009) 8 Jurist 23 (in Russian). 5. Doroshenko L, ‘Poniattia ta sutnist korporatyvnoho dohovoru’ (2018) 2 Chasopys Kyivskoho universytetu prava 154 (in Ukrainian). 6. Shtym T, ‘Pravova pryroda aktsionernoi uhody’ (2013) 1 Yevropeiski perspektyvy 146–150 (in Ukrainian). 7. Shtym T, ‘Rol aktsionernykh uhod u poperedzhenni ta vyrishenni korporatyvnykh konfliktiv’ (2012) 93 Visnyk Kyivskoho natsionalnoho universytetu imeni Tarasa Shevchenka 104–7 (in Ukrainian). 8. Syhydyn M, ‘Korporatyvnyi dohovir v systemi tsyvilno-pravovykh dohovoriv’ (2013) 33 Aktualni problemy vdoskonalennia chynnoho zakonodavstva Ukrainy 146 (in Ukrainian). 9. Vinnyk O, ‘Aktsionerni uhody’ (2010) 5 Yurydychna Ukraina 20–7 (in Ukrainian). 10. Vyhovskyi O, ‘Dohovory mizh aktsioneramy v mizhnarodnomu pryvatnomu pravi’ (2014) 10 Vdoskonalennia pravovoho rehuliuvannia korporatyvnykh vidnosyn 167–74 (in Ukrainian). 11. Zhabskyiv, ‘Aktsionerni uhody yak sposib vrehuliuvannia korporatyvnykh vidnosyn’ (2010) 3 Ekonomika ta pravo 75–9 (in Ukrainian).
Conference papers 12. Doroshenko L, ‘Predmet dohovoru mizh aktsioneramy tovarystva v zakonodavstvi Ukrainy ta anhliiskomu pravi’ v Korporatyvne pravo Ukrainy ta krain Yevropeiskoho Soiuzu: novely zakonodavstva: Zbirnyk naukovykh prats za materialamy XVI Mizhnarodnoi naukovo-praktychnoi konferentsii (Luts V red, NDI pryvatnoho prava i pidpryiemnytstva imeni akad F H Burchaka NAPrN Ukrainy 2018) (in Ukrainian). Websites 13. Slovnyk ukrainskoi movy (SLOVNYK.ua) <https://slovnyk.ua/index.php?swrd> (accessed: 25.04.2022) (in Ukrainian).
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