L'agrément en droit des sociétés - Contribution à une simplification du Droit

Abstract : When studying shareholder approval under company law, it appears that applicable rules are not free from lacunae or inconsistencies. The latter can in particular be found because norms are scattered in various statutory or regulatory texts issued on a case-by-case basis, individually for each type of company. In addition, applicable provisions are more difficult to understand, because a correlation is sometimes made between the specific situation in which an approval is required and the applicable procedural formalities. All of this leads to a certain complexity, incompatible with the legal certainty needed to apply any procedure. Freedom is undermined, not by the lack of formal protection, but quite paradoxically, by overly punctilious formalism, whose application fosters abundant litigation. However, the concept of personal agreement (intuitus personae) existing in all types of companies suggests that it would be possible to unify approval rules existing in different areas, while at the same time simplifying their implementation by defining common legal rules. To that end, the adoption of a contractual approach to corporate relationships provides numerous clues for solving the problems raised by the approval regime. However, this analysis of domestic law does not challenge the fair balance created by law in order to protect both the company and the transferring shareholder, for the purposes of corporate public policy. Very much to the contrary, this perspective heightens the effectiveness of the rule, as it makes it possible to define for the legislature scopes of action that harm neither the substance of shareholders’ rights nor any existing standard legal concept. By treating in this way any difficulties that may arise, it would be possible to rebuild the approval legislation and to make it clearer. This might per se open a concrete perspective of the creation of a French law of private companies, immune to any instrumentalisation by the legislature.
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Armel Le Ruyet. L'agrément en droit des sociétés - Contribution à une simplification du Droit. Droit. Université de Rennes 1, 2017. Français. ⟨tel-02276785⟩

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