Document Type : Research Paper
Author
Associate Professor. Department of Private Law, West Tehran Branch, Islamic Azad University, Tehran. Iran.
Abstract
Joint-stock companies may be dissolved for various reasons, as specified in the 1968 Act Amending a Part of the Commercial Code. The authority for dissolution may rest with the extraordinary general assembly of the company or with a body designated by the legislature. Upon dissolution and the appointment of one or more liquidators, the company enters the liquidation phase, during which its debts must be settled, claims collected, and, ultimately, any remaining assets distributed among its shareholders. A question of considerable legal importance arises: if a person or persons with standing successfully obtain a judicial ruling from a competent court declaring the decision to dissolve the company null and void—given that such a judgment is declaratory in nature—what effect does this ruling have on the transactions the company in liquidation has entered into with third parties concerning its assets during the liquidation period and prior to the issuance of the final court decision declaring the dissolution null and void? In response to this question, it must be noted that neither judicial practice has yet had the opportunity to address it, nor have legal scholars—particularly those specializing in commercial law—dealt with this issue. However, upon closer legal analysis, two distinct approaches may be identified. One approach is the traditional one, in line with existing solutions in civil law and Shi'a jurisprudence. Under this approach, upon issuance of a judicial ruling declaring the dissolution void—and considering the retroactive and absolute nature of nullity, and that nullity yields no legal effect—it may be concluded that any sale contract concluded by the company during liquidation is null and void. However, adopting this approach is not only inconsistent with the spirit of commercial law and the 1968 Amendment—which aims to protect third parties—but also gives rise to numerous legal anomalies. Among them: in the event of nullity of the contract with the third party, to whom may such party turn to claim compensation or, where applicable, restitution of the paid consideration? If the answer is that the third party must refer to the company in liquidation, it must be said that, following the issuance of the aforementioned judgment, there is no longer a company in liquidation to which the third party may turn for remedy. If the answer is the reconstituted company, such reasoning defeats the purpose; and if the company is obligated to compensate the third party contracting with the company in liquidation, then what is the utility or benefit of the nullity in question for the company? If the answer is that the liquidators of the company during liquidation are liable to the third party, it must be noted that, due to the representative nature of their role, such recourse faces legal impediments. If the correct answer is that the third party has no recourse whatsoever, then such a result conflicts with the principle of la darar (no harm). The second approach holds that given the third party contracted with the company in good faith—and in view of the overarching commercial law framework that prioritizes the protection of bona fide third parties, as well as the doctrine of appearance—the company may not rely on the judgment of nullity to claim invalidity of contracts concluded by the liquidators during liquidation with third parties. The nullity of the dissolution is not enforceable against third parties. Non-opposability is a legal status under which a legal institution—whether a legal act or fact—is invalid and without effect vis-à-vis the principal parties, yet remains valid and effective toward third parties. The author’s hypothesis is that a judicial declaration of nullity of the dissolution decision is not enforceable against bona fide third parties who have entered into contracts with the company. This is supported by an inductive analysis of the Commercial Code and the 1968 Amendment, including Article 270, the doctrine of appearance, the rule against organizational objections, the principles governing commercial law, and so forth. It can thus be concluded that, in principle, the nullity of the company and the acts and decisions of its corporate organs cannot be asserted against third parties. This theory is also consistent with Islamic legal principles such as la darar (no harm), iqdam (voluntary assumption of risk), and ghurur (detrimental reliance). The legal status of non-opposability of nullity against third parties is also economically efficient.
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