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Theoretical View on Liability for Acting with Due Managerial Care

Summary/Abstract: The Civil Code lays down the duty of a governing body member to act with due managerial care in the discharge of their office. In case of breach of this duty governing body members are liable to the juristic person for any damage caused in the discharge of their office. The aim of this article is to analyse, whether liability for acting with due managerial of members of governing bodies of juristic persons is fault-based or strict. The question of whether liability of members of juristic persons’ governing bodies is concieved as fault-based or strict liability is then decisive in terms of the criteria based on which these persons will or will not be liable. The author recalls first the legal regulation of liability of members of companies’ governing bodies which applied before the recodification of private law and which is necessary for understanding the core of the current dispute on the concept of liability, and discusses the impact of the recodification of private law on the provisions governing the position of governing body members and their liability. The author outlines the thesis that, to resolve the issue of liability for a breach of due managerial care, it is first necessary to answer the questions of how a juristic person acts, how acts of a juristic person are influenced by various theories of juristic persons, and in what way these theories are manifested in the applicable law; therefore, she deals with the theories of juristic persons and their recent understanding. On this theoretical basis she discusses the recent contradictory views in jurisprudence and case-law on the nature of representation of a juristic person by a governing body member and the nature of liability for acting with due managerial care.

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