Varstvo delničarjev in upnikov pri spremembah osnovnega kapitala delniške družbe : doktorska disertacija

slovenian

doktorska dela

2015

Univerza v Mariboru, Pravna fakulteta

Money and various property rights flow together into the Assets of a Company. On the other side of the company's presentation on its financial condition (balance sheet) these are opposed to in summarized amounts presented allocation of these Assets respectively its value to its sources. Speaking over simplified, amongst long-term financing sources may be ranked equity as own source of financing and (appropriate) foreign capital comprised of obligations. Between these two the first one is especially valuable as no time criteria is attached to it while on the other hand the company eventually will have to fulfil its obligations with its own Assets. Equity is comprised especially of the capital (the value of Assets) given by the shareholders as a contribution into the company and the capital generated by the company itself (gains). Contributions that present the engagement of Shareholders in the entrepreneurial undertaking on risky grounds build the basic and existential principal (condition) of stock company and in most cases the only source of its financing when the company is established. From the Share received in return for the given Contribution the Shareholders derive their position as a member of Stock Company. Therefore the Law also states that a Stock Company is the company which has subscribed capital, that capital has to be divided into Shares (ZGD-1 first paragraph of Article 168), the company is liable to creditors for its obligations with all its Assets (ZGD-1 second paragraph of Article 168), while the contributions may not be returned (ZGD-1 first paragraph of Article 227). This elementary foundation of Stock Company's capital structure at the same time reveals the key Aspects of changes in Subscribed Capital relevant for the position of Shareholders and Creditors. Change in Subscribed Capital may reflect in value of Company's Assets by which Company's Creditors are paid up and it can also reflect on Shares from which Shareholders' rights are derived. While the increase of Subscribed Capital bears the potential for increasing the Company's Assets andis therefore a welcome measure for the Creditors, the reduction of Subscribed Capital harms Company's main principal and as a consequence almost presumes that Creditor's claims are being threatened. Because the contributions normally mustn't be returned, safeguarding of the Creditor's takes place prior to possible disbursement of released Assets previously boundby the Subscribed Capital. Nevertheless the increase of Subscribed Capital is not without danger for the Creditors as it has to be assured that the promised contribution is rightfully transferred to the Company and that itreaches the value assigned to it by the Company and Contributor. Capital fortification of "their" Company is welcome also for the Shareholders and a successful placing of new shares at the same time signalizes economic attractiveness for new investors. However these are the ones who enter in the "friendship" between existing Shareholders whose shares thus change and with them also the power of their main member-rights. This effect of increasing theSubscribed Capital is usually not welcomed by the existing Shareholders andon principle they aren't forced to embrace it. The Law grants them the pre-draw by assigning Shares and to differ from that main principle of the Lawdemands a special decision of existing Shareholders. Consistently executedmeasure of change in Subscribed Capital means that many smaller comprehensive steps were rightfully performed. It can later on come to be that decision of Shareholders was invalid. Although the Effects of the change in Subscribed Capital have to be abolished "turning back the clock" turns out to be to "frightening". Thus this kind of restoration of unsuccessful measure has to be rethinked and weight up whether a different solution is in place.

08.08.2023