عنوان مقاله [English]
Commercial companies are principally governed by majority rule. This notwithstanding, mere application of this decision-making rule does not prevent conflict of interests between shareholders. Such a conflict can be observed in three distinct hypotheses: 1- abuse committed by majority shareholders; 2 - abuse committed by minority shareholders; 3 - abuse committed by holders of equal shares. Regardless of kind, these deviated forms of majority rule application entail some obstacles to good functioning of corporations. Hence legislatures and courts in many legal systems, taking into account this lacuna in majority rule, endeavor to sanction such malicious maneuvers. Two opposing (at least different) approaches are taken by two categories of legal systems: While American approach invokes “Fiduciary Obligation”, French tradition tends toward a non-contractual institution. According to Cour de Cassation's formulation, all forms of voting right contrary to corporate interest merely used to benefit its owner in detriment of concurring group of shareholders, are condemned and consequently sanctioned. There is a wide range of ideas about the very legal foundation of the criteria procured by Cour de Cassation. Most of all two theories (abuse of right and diversion of power) seem to be widely accepted. Qualification of voting right as a subjective right or power is thought as the cornerstone of the debate. Still there is no unanimous answer. Regarding the Iranian legal system, it seems unavoidable at first step to enumerate and make a list of potential institutions and foundations for the purpose of legal transplantation. This listing does not per se contain their admissibility as the proper foundation of the Iranian legal system as the receiving legal system. It is up to the second step to determine the most proper foundation for a proper transplant. The latter question stands out of this paper’s scope and purpose.