Many trading companies have had problems with restrictions in the past resulting from the 196a Business Act. It sets limits for transactions between related parties, especially companies of the same holding company or companies and members of their bodies. There are also some restrictions for transactions between companies that are not part of one holding company, but one for the same person. The change in the business balance, which took place from 1 January 2012, removed some restrictions. He then removed the case law – e.g. widely discussed decision of the Supreme Court file no. 31 Cdo 3986/2009.
Clause 196a of the Commercial Code, which deals with the conditions of internal trading in joint-stock companies and limited liability companies, has made two difficult interpretations in practice. The removal of these deposit ambiguities was one of the objectives of the amendment to the Commercial Code. 351/2011 Coll., Inn from 1 January 2012. The changes in 196a and this amendment concern both the condition of a secure relationship between related parties and the introduction of the principle of protection of the good faith of persons.
The original rights of the business agreement relating to the provision of collateral between related parties are until 31 December 2011.
According to the original law, the general meeting of the company and the conditions usual in business relations were required to provide a secure relationship between related parties. The original paragraph 5 196a of the Commercial Code according to reference, in the case of a transfer, to the fulfillment of the conditions set out in the provisions of paragraphs 1 and 3. Accordingly, it was possible to infer, except in that case when the value reached at least one tenth of the subscribed share capital of the company.
The new first right is granted between related parties and from 1 January 2012
As of January 1, 2012, the company may provide a secured union of related parties, ie members of the Board of Directors of joint stock companies, executives of limited liability companies, members of the supervisory board, procurators, or other persons acting on behalf of the company, resp. for her or persons close to them, and other persons on their behalf, these persons are entitled to act, only with the consent of the General Meeting. In addition, the consent of the General Meeting is not required in the case of a secured volume of control by the controlling person. It is therefore not required for the prior consent of the general meeting of the company. According to the new law, the provision of security between related parties may be granted as follows. Until the approval of the General Meeting is granted, the tax would only be inactive, not invalid.
According to, it is not required to “maintain the conditions usual in business relations”, which were two checks for free provision of collateral (the possibility of free provision of collateral was disputed). Since the arrest of this year, it is therefore possible for the company to secure the bundles of related parties free of charge. Only the change of approval of the General Meeting will be required.
When transferring guarantees reaching at least one tenth of the subscribed share capital of the company as of the date of transfer of guarantees, it is not necessary to set the “price” of the guarantee by an expert-appointed expert (two bags were similarly judged by the Supreme Court in Resolution No. 29 Cdo 3276/2008). In such a volume, the bottom is the content of the ruin.
Protection of good vry tetch people
Pursuant to the Commercial Code, the new entity 196a para. There is thus a possibility of acquiring ownership of the first owner. A necessary precondition, however, is that the buyer did not know at the time of the acquisition of ownership and did not know and could not and could not say that the seller is not the owner, and thus is not entitled to dispose of the goods for the first time. The burden of proving the existence of good faith lies with the person who will be able to claim it in the company.
In view of the above, it is possible that the amendment, on the one hand, weakens the protection of the company, its assets were in the past solidified in violation of the provisions of 196a of the Commercial Code. If the property is illegally transferred from the property of the company to this person and this thing is transferred by this person, the company will lose the ownership of the book and the opportunity to demand its release. On the other hand, the positive aspect of the amendment is, as far as the protection of creditors in connection with transactions between related parties is concerned, at least in a straightforward ratio arising from the stated invalid contracts.
The rule concerning the good faith of persons is applicable to the acquisition of property in good condition and after the acquisition of the amendment, ie after 1 January 2012.