Zákaz konkurence členů představenstva akciové společnosti: „uvolněné“ mravy zákona o obchodních korporacích?

Abstract

This article analyzes the duty of non-competition as concerns directors in a Czech joint-stock company. The relevance of this issue has become more evident following the adoption of the new Business Corporations Act (No. 90/2012 Coll.), which eases the burden by allowing the duty to be breached, provided the director informs the joint-stock company and does not receive an explicit instruction to refrain from the competing activity. However, the liberal approach taken by Czech lawmakers raises some very serious questions, such as it conforms to the mandatory rules governing the fiduciary duties of directors, most importantly the obligation of loyalty. Throughout this article, legal analyses of the Czech legislation in force are enriched by the comparative approach of the authors, who support their arguments by giving examples of similar issues in Great Britain, France, Spain and Germany. The conclusion aims to synthesise the problem and argues that even a legally permitted breach of a duty of non-competition cannot free directors from their fiduciary duties, which represent the cornerstone of modern corporation law.