Intervenção judicial nas sociedades limitadas em face da liberdade de iniciativa

The judicial intervention in limited liability company goes through several issues of legislative and hermeneutics origin, based considerably on the small importance given to freedom of economic initiative by the participants in the process of formation and application of the law. In addition, Brazilian law, due to incompleteness, inconsistency or lack of valid grounds, put the judge in a procedural delicate situation. Being forced to judge, the judiciary faces severe uncomfortable interpretive situations, of which derive solutions of dubious constitutionality and affecting, significantly, the dynamics of business activity. In this context, and considering the limited liability company as an expression of free enterprise, corresponding to a lawful association of people in order to undertake economically, in exercise of his freedom of contracting and professional action, intended to be offered safe parameters of constitutionality for judicial intervention in limited liability company in the hypothesis of (i) transfer of corporate shares, (ii) attachment of corporate shares, (iii) dismissal of directors, (iv) appointment of judicial stakeholders, (v) exclusion of shareholders and (vi ) trespass. The hypothetical-deductive approach was adopted, building hypotheses to overcome the gaps and unconstitutionality of the law and subjecting them to tests, reviews, and comparisons with hypothetical facts and case law in order to determine the constitutional validity of the proposed solutions. The procedure aimed to reconcile the historical, comparative, dialectical and scientific methods. The roots of temporal institutes were researched as well as current solutions provided by national and compared law. From problematizations point, addressed by the constitutional interpretation of the law and jurisprudence, responses that bring out the unconstitutionality of certain conceptions were headed

Why should Restrictive Clauses be applicable in Cases of Forced Selling of Limited Liability Company Shares?

In many European countries, one of the most complex and widely discussed issues addressed by legal systems with respect to forced selling of limited liability and public limited company shares is the impact of possible statutory restrictions on transfers . Thus, while some authors deny the applicability of such provisions (as a possible avenue for commission of creditor fraud) , others support their validity (on the basis of prevention of possible fraudulent actions affecting interests protected by restrictive causes). In my opinion, a solution must be found in which prosecution of creditor fraud co-exists with respect for the rights scheme. As a general rule, this solution would call for applicability of restrictive clauses to cases of forced selling, regardless of whether such statutory provisions are viewed in terms of order or alienation.

The Illinois Limited Liability Company Act.

Description based on: June 1994; title from cover.

Limited liability corporations : administrative rules.

This booklet was published to help citizens to understand the rights, requirements, availability, and the use of names for registering a Limited Liability Company in Illinois and to explain what must be done to keep a limited liability company in good standing with the Office of the Secretary of State.

Legal liability, government intervention, and auditor behavior : evidence from structural reform of audit firms in China

This paper investigates how legal liability influences audit quality and audit fees, particularly in the presence of government intervention. Since 2010, all Chinese audit firms were required to transform from a structure of limited liability company (LLC) to limited liability partnership (LLP), which removes the cap on the liability exposure of negligent auditors. By adopting this natural experiment, we document the following findings: first, after audit firms reorganize as LLPs, auditors are more likely to (1) issue modified audit opinions and going-concern opinions, (2) constrain clients’ earnings management, and (3) charge a premium in audit fees, which suggest that exerting unlimited legal liability on negligent auditors improves both audit quality and audit fees. Second, the effect of the LLP adoption is more pronounced when auditors are from local audit firms, and clients are controlled by local governments. Further analyses suggest that the stock prices of clients positively react to the reform event, which indicates that LLP adoption improves the overall value of audits. In summary, our empirical findings are consistent with the argument that legal liability is able to effectively shape auditor behavior in emerging markets where the other institutional mechanisms are relatively weaker and government intervention is heavy.

Limited Liability Act of 1855

Examines the Limited Liability Act 1855 and highlights its significance in the formation of the modern company's legal framework. Looks at the background to the Act, which was repealed after a few months and incorporated in the Joint Stock Companies Act 1856 in an amended form. Considers the Act's legacy in extending the general principle of limited liability for corporate debts to shareholders of registered companies, including its implications in allowing a greater diversification of shareholders.

The special rights other than shares in cross-border mergers of limited liability companies within the European Union. A perspective from the Spanish Law

The present research aims to study the special rights other than shares in Spanish Law and the protection of their holders in cross-border mergers of limited liability companies within the European Union frame. Special rights other than shares are recognised as an independent legal category within legal systems of some EU Member States, such as Germany or Spain, through the implementation of the Third Directive 78/855/CEE concerning mergers of public limited liability companies. The above-cited Directive contains a special regime of protection for the holders of securities, other than shares, to which special rights are attached, consisting of being given rights in the acquiring company, at least equivalent to those they possessed in the company being acquired. This safeguard is to highlight the intimate connection between this type of rights and the company whose extinction determines the existence of those. Pursuant to the Directive 2005/56/CE on cross-border mergers of limited liability companies, each company taking part in these operations shall comply with the safeguards of members and third parties provided in their respective national law to which is subject. In this regard, the protection for holders of special rights other than shares shall be ruled by the domestic M&A regime. As far as Spanish Law are concerned, holders of these special rights are recognized a right of merger information, in the same terms as shareholders, as well as equal rights in the company resulting from the cross-border merger. However, these measures are not enough guarantee for a suitable protection, thus considering those holders of special rights as special creditors, sometimes it will be necessary to go to the general protection regime for creditors. In Spanish Law, it would involve the recognition of right to the merger opposition, whose exercise would prevent the operation was completed until ensuring equal rights.

Report of the departmental committee appointed by the Board of trade to inquire what amendments are necessary in the acts relating to joint stock companies incorporated with limited liability under the Companies acts, 1862 to 1890 : with appendix.

At head of title: Companies acts 1862 to 1890 (Amendment).

Judicial intervention in the affairs of unincorporated religious associations in New South Wales

The leading Australian High Court case of Cameron v Hogan (1934) 51 CLR 358 confirmed that associations which are 'social, sporting, political, scientific, religious, artistic or humanitarian in character’, and not formed ‘for private gain or material advantage’, are usually formed on a basis of mutual consent. Unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of the association will not be treated as an enforceable contract in contrast to the rules of incorporated bodies. Australian unincorporated associations experiencing internal disputes, like those in most other common law jurisdictions, have found courts reluctant to provide a remedy unless there is a proprietary interest or trust to protect. This is further compounded by the judicial view that an unincorporated association has no legal recognition as a ‘juristic person’. The right to hold property and the ability to sue and be sued are incidences of this recognition. By contrast, the law recognises ‘artificial’ legal persons such as corporations, who are given rights to hold property and to sue and be sued. However, when a number of individuals associate together for a non-commercial, lawful purpose, but not by way of a corporate structure, legal recognition ‘as a group’ is denied. Since 1934, a significant number of cases have distinguished or otherwise declined to follow this precedent of the High Court. A trenchant criticism is found in McKinnon v Grogan [1974] 1 NSWLR 295, 298 where Wootten J said that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’. According to Wootten J at 298, if disputes are not settled by the courts, this would create a ‘legal-no-man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, and an arrogant disregard of rights’. Cameron v Hogan was decided in 1934. There is an increasing volume of first instance cases which distinguish or, in the words of Palmer J, ‘just pay lip service’ to this High Court decision. (Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278). The dissenting cases seem to call for a judicial policy initiative. This would require recognition by judges that voluntary associations play a significant role in society and that members have a legitimate, enforceable expectation that the rules of the association will be observed by members and in the last resort, enforced by the courts without the need to prove contractual intention, the existence of a trust or the existence of a right of a proprietary nature. This thesis asks: what legal, as distinct from political, redress does an ordinary member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of a large unincorporated religious association? My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of the constitutions of large, unincorporated, religious associations with particular reference to the Anglican Church in New South Wales. Given its numerical size, wide geographical spread and presence since the foundation of New South Wales, the Anglican Church in New South Wales, contains a sufficient variety of ‘real life’ situations to be representative of the legal issues posed by Cameron v Hogan which may be faced by other large, unincorporated, religious associations in New South Wales. In contemporary society, large, unincorporated, religious associations play an important community role. The resolution of internal disputes in such associations should not remain captive to legal doctrines of an earlier age.

Impact of economic, regulatory, and patent policies on innovation in cancer chemoprevention.

Chemoprevention agents are an emerging new scientific area that holds out the promise of delaying or avoiding a number of common cancers. These new agents face significant scientific, regulatory, and economic barriers, however, which have limited investment in their research and development (R&D). These barriers include above-average clinical trial scales, lengthy time frames between discovery and Food and Drug Administration approval, liability risks (because they are given to healthy individuals), and a growing funding gap for early-stage candidates. The longer time frames and risks associated with chemoprevention also cause exclusivity time on core patents to be limited or subject to significant uncertainties. We conclude that chemoprevention uniquely challenges the structure of incentives embodied in the economic, regulatory, and patent policies for the biopharmaceutical industry. Many of these policy issues are illustrated by the recently Food and Drug Administration-approved preventive agents Gardasil and raloxifene. Our recommendations to increase R&D investment in chemoprevention agents include (a) increased data exclusivity times on new biological and chemical drugs to compensate for longer gestation periods and increasing R&D costs; chemoprevention is at the far end of the distribution in this regard; (b) policies such as early-stage research grants and clinical development tax credits targeted specifically to chemoprevention agents (these are policies that have been very successful in increasing R&D investment for orphan drugs); and (c) a no-fault liability insurance program like that currently in place for children's vaccines.

Temporal causality and the dynamics of judicial appellate caseload, real income and socio-economic complexity in Australia

This study applies Granger causality tests within a multivariate error correction framework to examine the relationship between judicial caseload, real income and urbanization for Australia using annual data from 1904 to 2001. Decomposition of variance and impulse response functions are also considered. The Granger causality results as well as the decomposition of variance and impulse response functions suggest that urbanization is the most exogenous of the three variables in both the long run and short run while judicial caseload and real income are relatively exogenous in the short run.