فهرست مطالب مصطفی کوشکی

This article, through a qualitative and analytical research method, discusses both the principle of company’s shareholders’ interests’ priority over the interests of other stakeholders and also the ownership-oriented approach to the shareholders. The above mentioned approach, referred to as the “Theory of Shareholders as Company Owners”, has been reflected in some of the awards previously issued by Iran’s courts. By focusing on traditional definition of ownership right, alongside the basis of the priority of shareholders’ interests indicated in economic theories including nexus of contracts theory, agency theory and ownership theory, it is concluded that the traditional definition of ownership right and its characteristics such as being exclusive and absolute, is not applicable in Corporate Law as it is applied in other legal areas. Furthermore, economic theories supporting the priority of shareholders’ interests are all based on the presumption that shareholders of a company bear more economic risks, compared to other stakeholders of the company. Therefore, conferring exclusive ownership right to them will increase efficiency. While criticizing above theories, this article argues that rights conferred to the shareholders are merely a means of representing the coalition that constitutes the company. This Article argues that the principle of shareholders’ interests’ priority and recognition of shareholders as owners of the company are remainders of the primary versions of partnerships and are based on an outdated concept of commercial company.

Can a shareholder recover a personal loss resulting from a loss suffered by the company? Unfortunately, that apparently simple question has no simple answer.  The company lawyer may argue that the answer lies in basic company law-as a separate legal entity, it is the company itself that must sue to recoup its own losses. That leaves the shareholder with no cause of action and no standing to sue. The shareholder derivative action, available under certain conditions, is still a corporate action, seeking relief for the company itself. Simply, that means that a shareholder cannot recover damages suffered by the company. A comparative approach is relevant to this investigation as it could provide invaluable insights which could enrich Iranian jurisprudence in case where shareholders will seek to claim for reflective loss. This article, from a comparative law perspective explores whether shareholders should be able to claim such a loss which is merely reflective of the company’s loss. The results of the article show that in the UK corporate law, the direct action of shareholders to claim a reflective loss is limited to exceptional cases (such as where the company is unable or unwilling to pursue the claim) due to the important rule of "no reflective loss". The origins of the rule come from the decision in Prudential Assurance v Newman Industries, in which the court said: “what [the shareholder] cannot do is to recover damages merely because the company in which he isinterested has suffered damage. He cannot recover a sum equal to the diminution the market value of his shares, or equal to the likely diminution in dividend, because such a “loss”  is merely a reflection of the loss suffered by the company. The shareholder does not suffer any personal loss. His only “loss” is through the company, in the diminution in the value of the net assets of the company. The plaintiff,s shares are merely a right of participation in the company on the terms of the articles of association . The share themselves, his right in the participation, are not directly affected by the wrongdoing . The plaintiff still holds all the shares as his own absolutely unencumbered property”.In the Iranian corporate law, despite the doubts about the claim for damages resulting from the reduction of shares and its profits in the decisions of the arbitration board of stock exchange and securities, it seems that such a loss is compensable. Because on the one hand, by examining the conditions of compensable loss in Iran's civil liability system, the loss caused by the diminution in the value of shares and dividends is a personal and independent loss for the shareholders, and any restriction in this field is a violation of the rights of the shareholders, and the person causing the loss must pay all the losses caused for his actions , and on the other hand, the argument that the shareholder's personal right ought to be subordinated so as to protect the interests of the company's creditors and  the autonomy of company would seem somewhat less compelling. Ironically, respecting the principle of company autonomy demands the recognition that shareholders are separate from the company, which in turn forms the premise upon which rights and obligations of shareholders are distinguished from those of the corporate entity. If indeed the shareholder’s right is an independent personal right, the fact that the loss suffered is reflective of the company's loss should not lead to a destruction of that right. Of course, some practical considerations such as the possibility of multiple shareholder lawsuits and efficiency (cost-benefit evaluation) lead us to consider the company as a priority in the litigation without limiting the personal right of shareholders to claim personal loss.

Most legal systems to protect the property of a bankrupt merchant and creditors provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. Analysis of the legal and economic logic governing the invalidity of such transactions shows that in the Iranian legal system there are shortcomings such as no time limit regarding the length of twilight periods, the scope of avoidable transactions, the provision of remedies and the necessary conditions for the avoidance of perfectly valid transactions. Regarding the above shortcomings, it was suggested that a specific length of twilight periods (6 months to 2 years, as the case may be) be provided in the law And the criterion for insolvency should be permanent and incurable cessation, not the oldest cessation. from the date of cessation of the company The principle is the correctness of transactions and the invalidity is considered an exceptional matter, Use the Unenforceability (Inopposabilité) guarantee instead of the nullity guarantee And the effect of some requirements such as good / bad faith of persons in the invalidity of transactions due to its negative economic effects should be limited to specific cases.

The economic, social, psychological or intellectual superiority of some business enterprises has led them to impose their own favorite terms and conditions on the other enterprises. Therefore, this article intends to answer these main questions. From the point of view of law and judicial precedent, what are qualifications needs for the  terms between businesses to be considered unfair and what is the basis that justified control of unfair terms? The results of the research reveals that despite the advent of new theories such as the theory of transaction costs as a basis for dealing with unfair terms, it can still be argued that in the Iranian legal system, the basis for dealing with such terms is “No Loss Principle”. In addition, Couse of important principles such as freedom of competition and contractual security, there is less rigidity and more flexible enforcing guarantee in contracts between the businesses to such terms, which can be criticized. Thus, the and the legislator not only must provide more precise components to recognition of such terms, but also establish more strict enforcement guarantees such as annulation of those terms

Employees are the human capital of companies. Therefore, considering the interests of the employees and their participation in the management of the company can have a Positive impact on the survival and continuity of the company and in the long-term will increase the profit of the company. This paper, with a descriptive and analytical approach, examines the different approaches and theories related to employees' economic participation in the decision-making process of the company, and trying to answer the question, what is the position of employees in the system of corporate governance in Iran, and should they participate in the decision-making process in the corporate and should their interests be taken into account in corporate decisions? The paper concludes that the current situation of employees lacks an important and effective place in company decisions, but given the experience of other jurisdictions and the structure of Iranian business firms, it is possible to provide a regular and coherent mechanism to support employees. This can have a positive impact on the continued success of companies.

Companies supplies present and future needs of their employees. Therefore, the survival of the company is very important for its employees. However, in some cases the bankruptcy of the company and entry into the process of liquidation is inevitable. The present study uses a descriptive-analytic approach and comparatively, sought to answer the key questions that bankruptcy rules of Iranian commercial companies how much support to the workforce and are available tools in this context efficient or not? The results of the research show that the legal system of Iran in comparison with the French and British has poor regulations about the prevention of corporate bankruptcy and the preservation of employees' job position. Support mechanisms for employee claims (such as privileging employees' claims) are also ineffective and inefficient. Therefore it is necessary that in the new draft law on the commercial, in addition to strengthening the protection of employees' right to receive their claims, based on social interests an insurance institution be provided.

Anterior (prior) obligations for the formation of commercial corporations include obligations for incorporation and posterior (later) obligations for incorporation (assuming annulment of Commercial Corporation). Because these obligations are in association with the rights of third parties, the performance of obligation and liability of a committed person requires a detailed study. The main question of this paper asks who is responsible to carry out the abovementioned obligations. Results showed that the first ones (obligation before incorporation) cannot be analyzed based on the representation theory in the legal system of Iran because of the absence of the corporation at the time of signing contracts and other procedural and legal considerations. Hence, this is an independent obligation called “undertaking a third between founders and third parties” without imposing any obligation on the corporation unless the biding obligations for corporation formation. According to the current assumption, obligations are corporation commitments without any authorization when the corporation is formed. In the context of the second type of commitment (later to incorporation based on the assumption of commercial corporation annulment), such companies cannot be considered as partnership corporations and liabilities cannot be legally imposed on partners based on the commitment validity theory. Therefore, the liquidator is responsible to carry out obligations for third parties from incorporation to annulment. Hence, the effect of the inalienability of corporation annulment against third parties indicates that they can benefit from company assets and properties before distribution during the settlement process based on the contract procedure.