چکیده:
شرکت سهامی در «نظریۀ امتیاز»، چیزی نیست جز یک مصنوع دولت که بهطور گسترده تحت تأثیر مقررات دولتی قرار دارد و اختیارات آن محدود به مجوز تأسیس آن است. در دکترین حقوقی کشور جز برخی اشارات جزئی، به این نظریه توجه کافی نشده است؛ اما با نگاهی به آثار نظریۀ امتیاز در نظام کامنلا و مقایسۀ آن با ایران مشاهده میشود که هرچند این نظریه در نظام حقوقی ایران شهرت چندانی ندارد، منطق حاکم بر آن و آثار این نظریه در قوانین موجود و لوایح مطرح در خصوص شرکتهای سهامی بهوضوح قابل مشاهده است. این در حالی است که نظام کامنلا جز در موارد استثنایی، از این نظریه عبور کرده است. در نوشتار حاضر با بررسی نظام حقوقی کامنلا مفهوم و چالشهای نظریۀ امتیاز، بررسی و توسعۀ حدود آثار این نظریه در قوانین، مقررات، لوایح و دکترین حقوقی ایران و رویه مرجع ثبت شرکتها نقد شده است.
artificial being that is widely influenced by government regulations and
possesses only those properties which the charter of its creation confers upon
it. Except for some references, in Iranian legal doctrine, not enough attention
has been paid to this theory. The main elements and features of the
concession theory in common law are: principle of no capacity to act as a
body corporate without positive authorization, stakeholder primacy, serve to
public interest, extensive government intervention in corporate law, priority
of mandatory rules in company law, and duality of company law and private
law and its tendency to public law. Also in this theory, corporation‘s legal
power is derived from the state.
In the article, by comparative study of common law system, the concept,
effects and challenges of concession theory have been studied and according
to the findings of this study, the place of this theory has been studied in the
Iranian company law. Through this, development of effects of this theory has
been criticized in the laws, regulations, bills and legal doctrine of Iran and
the procedures of corporate registration authority.
This article is looking for an answer to this question that what is the place
of the concession theory in common law and Iran‘s company law, and what
are the advantages and disadvantages of this position for Iran‘s company
law?
Looking at the effects of concession theory in the common law systems
and comparing it with the Iranian legal system, the article proves that
although this theory is not well known in the Iranian legal system, the
prevailing logic and effects of this theory can be clearly seen in the existing
laws and bills on joint stock companies. However, the common law systems
have passed this theory except in exceptional cases.
In Iran‘s company law, the basis and logic of this theory can be seen in the
Commercial Code and its amendments, Commercial Bill, legal doctrine and
the procedures of the company registration authority. Some examples are: 1-
As mentioned, the capacity of the company are deemed to originate from the
(state) law; 2- providing public interest is more important than aims such as
shareholder wealth maximization; 3- strictness is observed in company
registration procedures; 4- several mandatory rules imposed on companies;
5- there is not enough desire to reduce the burden of regulations governing
companies; 6- the scope of activities of the company is important, and going
beyond the limits of the company's authority contained in the company's
constitution is an inexorable taboo, etc.
Therefore, the concession theory can be considered as one of the important
theoretical foundations governing the company law in Iran, and by referring
to the changes and developments of the common law in reducing the
influence of this theory and replacing it with other theories, especially
contract theory, It can be concluded that the existence of the basis and logic
of concession theory in Iran's company law can be criticized.
Furthermore, considering the existence of numerous reasons and
indications that the Iran's company law follow other theoretical bases such as
contractual and legal person theories, in the description of the current state of
Iran's company law, it can be said that several, sometimes conflicting
theoretical bases govern Iran's company law.
As an efficient solution, this article suggests that company law forsakes the
concession theory and moves towards the contract theory, because it is more
compatible with our legal foundations, gives the company law an
independent identity from public law, creates greater compliance with the
general policies, is more consistent with common law experience, by
emphasizing the efficiency and reducing transaction costs, helps companies
in playing their main role in the economy, by reducing the role of mandatory
rules and emphasizing the importance of default rules, defines an efficient
role for the state in company law and increases creativity in company's
constitution. Commercial Bill, which is in the process of approval by the
Iranian Parliament, is the most important document and the best opportunity
to adopt such approaches