Nasprotja interesov organov družbe v koncernu - razmerje med ZGD-1 in ZIntPK

slovenian

2021

volume 47, issue 3/4

Companies Act (ZGD-1)   conflicts of interest   double mandate   duty of loyalty   group privilege   Integrity and Prevention of Corruption Act

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

In this paper, the authors present the basic postulates of group privilege and the effects of such management in affiliated companies and the importance of dual (double) mandates and intertwining of functions. On the other hand, the legal question arises whether such management can at least in principle be "limited" by a conflict of interest, which may be exposed as a problem in the exercise of the Group` s privilege due to the interconnectedness of companies. As long as we are within the Companies Act (ZGD-1), the problem is only apparent, but in any case this problem is additionally highlighted in the operations of affiliated companies in which the majority share or dominant influence is the state or local community, where the provisions of the Integrity and Prevention of Corruption Act (ZintPK) and the Slovenian Sovereign Holding Act (ZSDH-1) are directly applicable. The authors thus emphasise the importance of the interpretation and use of corporate institutes and the uniform application of elimination of conflicts of interest by applying and also taking into account the newly adopted provisions of the ZGD-1K. Thus, they take the position that the provisions of ZGD-1 (and the related provisions of ZSDH-1 and ZIntPK) are about setting an abstract duty of loyalty to society and thus a kind of general clause, which should enable legal control of those conflicts of interest in companies whose dismissal is not provided for in advance by law. The duty of loyalty to the company is in itself an essential part of the unwritten legal order in company law, and consequently also represents a part of due diligence of members of management and supervisory bodies.

25.08.2021