جستجوی مقالات مرتبط با کلیدواژه « fiduciary relationship » در نشریات گروه « فقه و حقوق »

Simultaneous employment in companies and other competing agencies can be considered from different point of view. One of these is to examine it from the point of view of its conflict with competition, which is examined in competition law. Considering the important impact that competition has for the progress of society, supporting competition through the adoption of effective regulation is one of the duties of governments. Supporting competition through legislation is done in different ways, one of which is the introduction of anti-competitive behavior. In relation to simultaneous employment in competing companies, the main question that arises is whether this behavior is anti-competitive or not? And on the assumption of contradiction, is this contradiction enough to require prohibition by the legislator. Although the role of simultaneous employment in competing companies for commercial and industrial progress cannot be completely denied, there is no doubt that it increases the possibility of information exchange and collusion between competing companies in various fields such as product pricing and as a result, it causes the competition between these companies to be reduced or eliminated. Therefore, it has been recognized and prohibited as anti-competitive behavior in the laws of Iran and the United States of America. In addition to the main question above, several secondary questions are also raised in this context, which are: Should the ban be applied to all companies or some of them, which is more important? Should the prohibition only apply to directors and officers of the company or all employees? Should this be absolutely prohibited or only if it disrupts competition? What is the criteria for considering two companies as competitors? The basic principle in relationto determining the scope of prohibition of simultaneous employment is that the prohibition should be established as much as necessary and have a minimal aspect. Regarding this issue, regardless of some similarities, there are important differences between the two countries, some of the differences are due to the different approaches of the two countries to fight it and it is normal, but in Iran's regulations, on the one hand, the domain of agencies and individuals who are subject to the act , it is expanded in an unusual way, and on the other hand, the criteria provided for the conditions of competition realization and the concept of competing companies are not very precise, which makes it less effective. In addition to the point of competition, this issue can also be investigated from the point of view of the legal relationship of a person with the company in which he is employed. Because when a person is employed in a company, certain duties and obligations are created for him in order to strive for the success of the company and refrain from doing contrary behaviors, and the question is whether working at the same time in a rival company is contrary to these obligations? There is a possibility that in the employment contract, a person is prohibited from competing with the employer, in which case she will adhere to the condition, but if such a condition is not included, the matter needs to be investigated. There is no regulation in this regard in the studied countries. In American law, according to the rules of common law, this is contrary to the fiduciary relationship of a person with the company, as well as contrary to his duty of loyalty to it, and is prohibited. It should also be considered prohibited in Iranian law, because employment in a rival company can lead to behavior contrary to the interests of the first company. It is important to point out that there is a difference between the two mentioned states. Prohibition of simultaneous employment in competing companies due to its anti-competitiveness is intended to protect the community and is related to public order and has an imperative aspect and cannot be agreed upon. While it is prohibited from the point of view of conflicting with the relationship between the person and the company, it is to protect the rights of the company and is not related to public order, and an agreement against it is possible. Because this may have positive effects in some cases, such as when two companies cooperate in some fields.

The company is managed by its directors. The issue that arises is that is the director allowed to conduct a Transaction similar to the subject of the company's or not? In this regard, there are similarities and differences between the laws of the English and the United States and Iran. In English law, one of the things that contradicts the director’s duty of loyalty to the company and its duty to avoid conflicts of interest with the company, is the competition of the director with the company  through Conducting transactions Similar to the Company's Transactions. According to the absolute view accepted in this country, such a thing is forbidden. In US law, the director also has a loyalty duty to the company, but has a relative approach in this regard. Under U.S. law, the director is permitted to engage in activities similar to that of the company; unless done with bad faith. According to the law of this country, reliance on this duty should be done only to the extent necessary to protect the interests of the company. The advantage of this view is that it considers the interests of the company and the director and economic interests, but it is not suitable for preventing   director from abuse. In Iranian law, the relationship between the director and the company is agency and the director must consider the interests of the company. Under Iranian law, it is not prohibited for a company to engage in any activity similar to the subject of company, unless it is detrimental to the company. Ofcourse, a loss is not a condition for the competition to be realized, but as soon as this is typically detrimental to the company.Another issue that is raised in this regard is the sanction of the competition of the director   with the company. In this regard, the most important concern is that the sanction   is designed in such a way In addition to the aspect of compensation from the company, it also has a suitable deterrent aspect. Because one of the main approaches in the law of companies in the issue of sanction is the deterrent aspect. In English and American law, it’s  sanction  is: first, the director's duty to return all the benefits of the competition to the company, because from the point of view of these two countries, these interests belong to the company. The second sanction is the director's responsibility to compensate the company. In Iranian law, the main sanction is the director's responsibility to compensate the company. In some exceptional cases, there is also criminal sanction for it. These are cases in which the director has used the company's property and credit to compete with the company or has exercised its authority to compete.

Managers as a fiduciary have obligations for preserving the entity of the company and the interests of the shareholders, but these obligations have specific conditions that cannot be ideally justified all in accordance with the general rules of representation. Therefore, it is necessary that these obligations be specified in a special legal framework which, while recognizing the boundaries of the legal relation of the manager with the company and the shareholders, prevents them (the managers) from abuse. In British Law, the fiduciary relationship has defined the limits of powers and obligations of the managers. Iranian law has not expressly accepted the mentioned theory as a general principle, but, there are some indications in Iranian Commercial Law and the Law of Exchange Market that may be used to justify this theory. In particular, we may refer to the obligations to observe loyalty, care, good faith and providing information.