Limitation of Internal Civil Liability of the Board of Directors of a Joint-Stock Company (De Lege Lata) Under German Law
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Abstract
Object: the study of topical issues of limiting the internal civil liability of members of the board of directors of a joint-stock company (de lege lata) under German law with justification of proposals for correcting the current legal norms.
Methods: are formed by various scientific and legal approaches to finding and solving problems using legal methods of formal, comparative, systemic and other analysis.
Findings: the control legal mechanisms of powers of the supervisory board of the joint-stock company are outlined, including: the procedure for establishing restrictions on the liability of members of the board of directors (management board) and agreeing on this procedure with the general meeting of shareholders in the event of a high entrepreneurial risk of the company's activities; the procedure for assessing the actions of members of the board of directors on risk management within the framework of compliance with general standard or special corporate requirements of the area of risk management based on the results of the annual audit of activities in this area.
Conclusions: the provisions of the Law on Joint Stock Companies (AktG) on the powers of the supervisory board in terms of establishing limits on the liability of board members in case of a high level of business risks are characterized by uncertainty, lack of clear rules as well as blanket rules on measures to establish and minimize such risks. At the same time, the content of judicial practice reflects the practical importance of limiting the liability of a member of the board of directors, taking into account the assessment of the results of risk management in his actions by other members of the board and members of the supervisory board on the basis of the current standards of the sphere of risk management. Therefore, substantiated proposals are presented to eliminate the uncertainty in the AktG standards (§ 91 s. 3; § 93 s. 2, § 107 s. 3, § 134с s. 4, § 171 s. 1) regarding the establishment of restrictions on the liability of members of the Board of Directors in case of a high level of business risks.