Abstract
The conference was introduced with the contribution on the topic "De facto and shadow director in the Czech and selected foreign legislation" by Mgr. Ing.
Tomáš Černý. In his contribution, the author evaluated the current legislation and case law of the Supreme Court of the Czech Republic (file no. 29 Cdo 4095/2016 and 29 Cdo 1436/2014) and the Constitutional Court of the Czech Republic (III. ÚS 3251/10 and II. ÚS 2132/10) related to the de facto and shadow leader.
The author subsequently pointed to the wording of Section 62 of the Business Corporations Act, which will be effective from 1 January 2021 and which should affect de facto and shadow leaders. The author stated that this provision should appropriately complement the existing legislation, so that even those who actually act as members of elected bodies, although not formally, should bear the same responsibility as de iure members.
The author further focused his contribution on the members of the statutory bodies and pointed out the English regulation of the de facto and shadow director (§ 250 and 251 Companies Act 2006) and the case law in the cases of Secretary of State v. Elms, Secertary of state v.
Tjolle and Re Kaytech International plc. (Secretary of State v. Kaczer), from which it was clear which factors the English courts consider to be decisive in determining whether someone is acting as the de facto director.
Furthermore, the author referred to the French regulation of the sanction of de facto and shadow leaders in the French Commercial Code (L. 241-9, 245-16, 246-2, 654-12 du Code de commerce) and cited decision of the Court de cassation de commerce de 25. 1. 1994 n ° 91-20.007, from which it is clear what factors are important for the French courts to determine whether a person can be considered a de facto or shadow director (dirigeant de fait).