THEORETICAL AND LEGAL COMPARATIVE STUDY OF THE LEGAL NATURE OF A CORPORATE CONTRACT UNDER THE LAW OF FRANCE AND THE USA

Аннотация

The article provides a comparative analysis of theoretical and legal approaches and specific features of corporate agreement regulation under French and US legislation. The spread of mutual agreements between shareholders in France was facilitated by the participation of Anglo-American investors in French companies, who were more accustomed to contractual relations than to the use of strictly fixed forms of joint-stock companies. Despite the fact that one of the goals of such agreements was an attempt to get rid of excessive public-law control, such agreements could never contradict the imperative requirements of the law and the provisions of the company's charter. In the USA, the legislative consolidation of the right of shareholders to enter into various types of agreements among themselves is carried out by laws regulating the activities, procedure for the creation and management of entrepreneurial corporations. The content of and participation in a shareholder agreement is determined by the legal regime of the corporation. An agreement of members of a closed corporation may de facto change the provisions of the charter concerning the management of the corporation and the division of profits. The article considers all types of shareholder agreements concluded by members of an entrepreneurial corporation. State laws governing contractual relations do not apply to shareholder agreements, despite the doctrinal view that corporations are contractual in nature. A comparative analysis of the case law, doctrine, and provisions of the US and French laws leads to the conclusion that in the US, shareholder agreements are governed by corporate law, and not by the provisions of the law of obligations, as in France. Keywords: corporate agreement, agreement of members of the company, principle of freedom of contract, right to vote, rights of members of the corporation, disclosure of information, trade register, comparative corporate law, confidential information, joint-stock companies, limited liability companies, business corporation, contract law, obligation, civil law contract The principle of freedom of contract as a sacred foundation of contract law in the European civilistic doctrine of the 19th century acquires particular relevance in modern corporate law. This key principle of the individualistic philosophy of the Enlightenment, further developed in the works of Ch. 146 ACADEMIC RESEARCH IN MODERN SCIENCE International scientific-online conference Montesquieu, T. Hobbes, J. Locke, J. J. Rousseau, I. Kant, G. Hegel and many other representatives of the classical natural law doctrine, has been discussed by representatives of foreign and domestic science for two centuries. The analysis of principles in the philosophy of law is devoted to the works of Russian researchers - B. N. Chicherin, I. A. Ilyin, N. M. Korkunov. In addition, as R. A. Emrikh rightly notes, “the appeal to the idea of freedom of contract as a principle of justification of law is associated with the fact that modern Russian legal consciousness assimilates a number of ideas (the concept of human rights, civil society, the rule of law), which are born of the world, mainly Western legal culture” . Modern conditions of doing business, globalization, integration, creation of transnational corporations, national and international competition, emergence of new organizational and legal forms of legal entities, widespread use of corporate forms of management have determined the need to find flexible and effective methods of regulating relations between participants of corporations. That is why theoretical and practical comparative study of the legal nature of such a flexible legal instrument as a corporate agreement seems relevant and necessary from the point of view of protecting the rights of participants of corporations and third parties. The idea of concluding an agreement of participants of a company arose as a result of the development of the principle of freedom of contract. In the common law system, before the emergence of judicial practice containing interpretations of agreements of this kind and the further normative institutionalization of agreements of participants, freedom of contract served as the justification for such agreements. In Brown v. Pacific Mail Steamship Co (1867) , the court held that the parties were prohibited by the agreement from changing the mandatory provisions of statutory law establishing the system of governance of the company, but the court left the agreement without consideration as to the voting procedure, implicitly upholding its permissibility. Later, in Faulds v. Yates (1870) , the court upheld the legality of obligating the parties to vote in a certain way. Turning to the history of the emergence of corporate agreements in French law, one can notice a strong influence of Anglo-American approaches. In particular, the spread of mutual agreements between shareholders in France was largely facilitated by the partici