ON THE PROBLEM OF DETERMINING THE PLACE OF NON-PROPERTY RIGHTS OF THE MEMBERS OF BUSINESS COMPANIES IN THE SYSTEM OF CIVIL RIGHTS
Abstract
Problem setting. Civil law regulates personal non-property and property relations based on legal equality, free will, property independence of their members. It may seem that the presented axiom enshrined in legislation, has been increasingly in the recent years criticized in the context of extending the object of legislative guaranteeing civil relations. Particularly acute there are discussions between the civil and legal, economic and legal schools in regard to the feasibility of inclusion of corporate relations into the object of regulation of civil law. Therefore, special attention is paid on a number of unresolved issues that are essential in clarifying the legal nature of corporate relations. One of such problematic aspects is their content. The urgency of choosing this problem is caused by different approaches both within the legislation and among scholars to ascertain the legal nature of the rights of business companies’ members in general and each right or power in particular.
Analysis of recent researches and publications. The issue of the study of legal nature of subjective corporate rights was the interest of O. B. Babaiev, V. A. Belov, V. M. Kravchuk, V. V. Dolynska, I. V. Spasibo-Fatieieva and others. However, the papers of these professionals do not contain an exhaustive answer to the question regarding the place of non-property corporate rights of the members of business companies in the system of civil rights.
Target of research. The objective of the article is to determine the place of non-property rights of business companies in the system of civil rights.
Article’s main body. The legislation of Ukraine does not provide a clear answer to the question what subjective corporate law is (even considering the fact that the relevant rights in normative cohort are used in the plural form) because the legislator has replaced the fundamental content elements – the rights and powers. Corporate rights, which have the members of corporate relations and which are not regulated in the Civil Code of Ukraine as civil and legal, face the term «the right to participate» used in this Code.
Herefrom, the right to participate is defined in the Art. 100 of the Civil Code of Ukraine as the personal non-property right, while it is, first, not like this according to its legal nature; secondly, contains other rights of both property and non-property (but not personal, but organizational) character. That is, generic concept (broader) is reduced to the species one (narrower) and still not quite right. In fact, the right to participate is a complex right, which can not exist by itself without its components. It is a symbiosis of property and non-property rights and is essentially corporate right. Thus, participation in a business company has a manifestation together (in the system) of these rights of business companies’ members.
It should be noted that non-property rights of the members of business companies is a guarantee of keeping property rights of these persons, besides their main purpose – mediation of non-property participation within the activity of a business company. It is due to the fact that the management is intended to solve the main task: to organize activities in such a way that a company can effectively exercise their powers of an owner, operate profitably and thereby ensure the profitability of the property rights of the members. Therefore, it is appropriate to recognize the existence of non-property rights, which are not of a personal nature, resulting with a statement: a member does not have the «personal non-property rights»; to mark a group of rights that he owns along with property ones it is correctly to use the term «non-property rights» because civil and legal doctrine understands under personal non-property rights inalienable, absolute rights, which do not have property content, inextricably are linked to an individual – a carrier of these rights.
Conclusions and prospects for the development. Based on a comparative analysis of the categories of «property and non-property» right and «non-property and personal» right the author makes a conclusion about the impossibility of studying corporate rights as personal, i.e. those that can belong only to individuals. The result of conducted study is the conclusion that the civil law does not provide grounds to define definitely the place of non-property rights of the members of business companies in the system of civil rights.
