"The Bermuda triangle" of company, bankruptcy and law on takeover of joint stock companies: Three subjects of protection: Company, creditor and shareholder

Abstract

Company, bankruptcy and the law on takeover of joint stock companies, by regulating the duties (obligations - debtor of the obligation) of members of the management of the public joint stock company (first of all), do not have the same approach in determining the subject of protection to which there is a prescribed duty (creditor of the prescribed obligation). On the other hand, the regulation of this issue is not uniform in the relevant comparative laws of these branches of law, both at the level of legal ("hard") law as well as at the level of autonomous ("soft") law. In this paper, the author seeks, first of all, to determine the dominant position of comparative regulations regarding the determination of the subject of law (the subject of protection) of the prescribed duty of the management of a company, as well as the reasons for such determination. The author takes the position, based on the appropriate argumentation that in the company law the subject of protection is a joint stock company (company as a legal entity), in the bankruptcy law it is an unsecured creditor while in the takeover law it is a shareholder. Since there is no unique position on these issues in legal theory, legislation and jurisprudence, the author refers to this situation as a kind of "Bermuda triangle".

Keywords

• management duty
• interest of a company
• creditor's interest
• shareholder's interest
• company law
• bankruptcy law
• takeover law