JSOU FUNDACE Z VENUŠE A KORPORACE Z MARSU? NĚKOLIK ÚVAH NAD PRONIKÁNÍM KORPORAČNÍCH PRVKŮ DO NADAČNÍHO PRÁVA
Are foundations from Venus, corporations from Mars? Reflections on intrusion of corporate law into foundation law
Languages of publication
The „intrusion“ of corporate law into foundation law is subject to critical review in contemporary foreign scholar literature. Reflections of this issue can also be found even in the decision-making practice of the highest courts of neighbouring countries. They repeatedly expressed and emphasized the special role of the founders will (expressed in foundation deed), transferability of rights of founder etc. In this paper, this issue is addressed in the broader jurisprudential and internationally comparative context with a special regard to the new Czech Civil Code. Firstly, the author focuses on the differences between corporations and foundations. In contrast to corporations foundations do not have the supreme organ (like a general assembly) and therefore, most of the structural checks and balances are missing. However, founders are free to establish such bodies as well as other controlling mechanisms within the foundation deed. Subsequently, different approaches to penetration of corporate law elements into the foundation law in selected European countries are illustrated and compared with the approach chosen by the new Czech Civil Code (incl. the possibility to change the purpose of the foundation) that might appear unclear. Particular considerations about the acceptance and defensibility of the chosen approach are included in the conclusion.
405 – 416
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