نوع مقاله : مقاله پژوهشی
نویسنده
دانشیار، گروه حقوق، دانشکدۀ علوم اداری و اقتصاد، دانشگاه اصفهان، اصفهان. ایران.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
One of the main problems in suing legal entities, including companies, is their confession, denial or oath. At first sight, it seems they cannot take oath, confess, or deny, but a closer look shows the opposite. In the lawsuits for or against the company, the Civil Procedure Code and the Commerce Act consider the executive manager and the liquidator as the claimant, respectively. The legislature does not consider such a position for contractual representatives. In all these cases, the other party in the lawsuit requires confession or an oath of the executive manager, and the company will need to deny or doubt the other party’s claims. The executive manager’s writings in the commercial notebooks are counted as the company’s written confession. Therefore, it seems that the company’s confession, denial, and oath are also imaginable, and it is on merits possible to deem the confession or denial of the executive manager or liquidator of the company as confession or denial of the company and require the executive manager or liquidator to take oath on behalf of the company. They can accept to take the oath, although they are unlikely to be able to refuse to take the oath. In this regard, some reasons are presented, such as a natural bankrupt person; in this case, the executive manager, despite the company’s bankruptcy, has not lost his standing completely and still can accomplish some work on behalf of the bankrupt company. All of these, in addition to companies, will apply to all types of legal entities.
This descriptive-analytical research will show that the legislator considers contractual representatives the parties’ lawyers while legal representatives are the parties to the case. In this regard, the executive manager is not a contractual but a legal representative. The reason is that he is not determined by his principle (company) but according to the rules laid down in the law.
In analyzing the subject of this article, it is necessary to discuss assuming the impossibility of confession, denial, or oath of a legal person; considering the executive manager and the liquidator as the claimant; differences between the places of legal and contractual representatives; means of confession, denial, or oath of the executive manager or liquidator on behalf of the company; and the possibility of bankrupt businessman’s intervention in commercial lawsuits.
The precedence of assuming the legal status of contractual and legal representatives as the same by most practitioners and analysts has led to misconceptions. But as the hypothesis of this article, the legislator clearly differentiated between the two groups, granted them different rights and powers, and thus made it possible for a legal person to confess, deny, or take an oath.
The research showed that contrary to what is known, legal entities can confess, deny, or take an oath, and each of these cases is done by their legal representative (executive manager) or deputy (liquidator or head of the bankruptcy liquidation department). Since legal persons do not enjoy the capacity to exercise rights and discharge obligations, the legislator somehow principally considers the legal person and his legal representative the same. The legal representative is also considered the claimant, and his position differs from the contractual representative’s (lawyer) position.
Not only the claim of rights but also the recovery of all the company’s rights is with the executive manager. Therefore, in principle, he has all powers granted by the legal person. He can either confess or deny or take oath in the name and for account of the legal person. The company’s components and crew cannot confess, deny, or oath on behalf of the company. The Board of Directors is also not a legal representative (executive) of a legal person.
The executive manager is not a contractual agent but a legal representative. The liquidator is a substitute for the bankrupt. Unlike a contractual representative, a legal representative cannot object as a third party to a decision for or against his principle but may request a retrial. Absent the guardian (executive manager), a legal claimant cannot file a lawsuit or hire a lawyer. If his former guardian has hired a lawyer (a contractual representative) for it, that lawyer will also be dismissed by the deterioration of the guardian’s position.
By law, the legal representative must be presently the principles’ representative to confess, deny, or oath on behalf of him for the events of his current or previous tenure. Given the current executive manager’s dominance over all the old and new information in the company, it seems that he can also confess or oath (independently or supportively) about events before his appointment based on recorded documents of those events. Of course, it appears that he cannot refuse or cancel such an oath and cause the claimant’s dominance over the company’s assets.
The legislator has exceptionally allowed the bankrupt, with the court’s permission,, to intervene outside the incapacity into a dispute currently set by or against his substitute (liquidator) as a third party. Bankrupt legal entities need their legal representative (executive manager) to exercise this right.
کلیدواژهها [English]
الف) فارسی
ب) خارجی
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