الانحراف بالاستقلالية القانونية للشركة : دراسة مقارنة

الملخص EN

The meaning of the recognition of the corporate entity of the company is the recognition of its independent financial liability, and it is not permissible to claim the debts of the company, but this is conditional on respecting the rules for separating financial receivables and respecting independence.

failure to respect independence, and to consider the company as personal property, or to deal with its property as if it were his personal financial responsibility, such a company is considered a fictitious company that lacks real independence, and portends the existence of an individual activity that exploits the interface of the moral personality.

the company’s recognition of the corporate personality was not an end in itself, but rather a means by which the legislator intended to achieve the independence of the company with its funds devoted to carrying out the activity for which it was established.

hence, it is not correct to exploit this independence for unlawful purposes that represent a fraud against the law and distort its provisions by diverting them from their goals.

this explains the judiciary’s refusal to accept the legal personality, and the legal independence resulting from it in relation to the companies that belong to one group.

it also explains the judiciary’s position in its refusal to consider the legal personality, if the partner uses it as a means to disavow an obligation or acquire a right or the debtor uses it as a means to smuggle his money to harm his creditors.

also, it is not sufficient for a person to respect the rules of independence and separate financial receivables, but he is also obligated not to override his authority, or to exploit the presence of the legal personality to achieve personal interests at the expense of the collective interest, or to exploit it to harm the rights of others.

the judiciary is not satisfied by mere "formal fulfillment" or "formal fulfillment" of the conditions necessary for the emergence of the legal personality, as it is not sufficient for it to establish a "real" and "correct" company, according to the apparent situation only.

it often examines the economic reality of this company, and examines the behavior of partners or shareholders