关于荷兰法人的强制性和非强直性规范的法律规定.doc

MANDATORY AND NON-MANDATORY RULES IN DUTCH CORPORATE LAW  Martha Meinema* III A 1 1 Introduction Dutch corporate law has gradually expanded during the last three decades. Due to national and European government action it has increasingly become more detailed and complex. A large part of the law is considered to be mandatory. The aim of this paper is to clarify the scope of mandatory corporate law by examining the limits it places on modifications in by-laws and agreements between shareholders. There is a certain tension between the amount of mandatory corporate law and the freedom of the individual guaranteed by private law. On the one hand, the freedom of the individual to contract and set up organizations is limited by mandatory corporate law. From the opposite point of view, it is mandatory corporate law which is limited by private law. In that respect, the mandatory effect of corporate law is lessened if shareholder agreements are allowed to circumvent corporate law. On the other hand, mandatory corporate law may be used to ensure the freedom of the individual. First, a brief introduction of the main features of Dutch corporate law will be given, followed by more general remarks on the impact of statutory rules and the possibilities of self-regulation by the shareholders. Finally, a number of statutory rules will be scrutinized more closely to establish their mandatory effect in practice. 2 Different models of corporations Dutch law offers various legal forms to individuals conducting business activities. A distinction is made between partnerships and corporations. Only corporations have legal personality. The civil partnership (maatschap) is a contract to co-operate between members of an independent profession. The general partnership (vennootschap onder firma) and the limited partnership (commanditaire vennootschap) are special kinds of civil partnerships, which apply if a business is conducted. Each member of a general partnership has the authority t