Nuosavybės ir valdymo atskyrimo problematika akcinėse bendrovėse

LTStraipsnyje nagrinėjamas turto ir valdymo atskyrimas ir jį aiškinantys įvairus ekonominiai valdymo požiūriai. Grindžiamas teiginys, jog svarbi yra ne tik galiojanti teisės aktų bazė, bet ir ekonominiai teisiniai valdymo požiūriai bei vertinimai, kurie aiškina bendrovės akcininkų ir vadovų santykius. Ekonominis valdymo požiūris yra prielaida ne tik efektyviam atsirandančių įtampų tarp bendrovės vadovų ir bendrovės dalyvių sprendimui, bet ir bendrovės, kaip verslo organizavimo formos, tolimesniam vystymuisi.

ENArticle discusses issues such as the theory of agency and the theory of the ownership structure of the firm. It is contented that fundamental issue of the modern public corporation is the separation of ownership and control. Since the modern public corporation is a relatively new organizational form in the history of societies, dating back to the beginning of XX century, therefore its specific characteristic is the separation of ownership of the assets of the corporation from control of those assets. While ownership of the assets is vested in the shareholders/investors, control over these assets is in the hands of professional managers/directors of the corporation. Therefore, managers take actions whose consequences are largely carried by the shareholders of the corporation. We can summarize managerial failures into two groups: failures of managerial competence - errors which relate to unwitting mistakes in the discharge of managerial control; failures of managerial integrity - errors which relate to wilful behaviors of the part of managers, such as lies, fabrications, embezzlement and self-dealing. M. C. Jensen ir W. H. Meckling (1976) proposed to use shareholders enact ratification, monitoring and sanctioning (reward and punishment) mechanisms to guard against failures of either type. Hence, Agency theory argues that shareholder interests require protection by separation of incumbency of roles of board chair and CEO. But the stewardship theory, which argues that shareholder interests are maximized by shared incumbency of these roles is also presented in the article.The "separation and control" issue in corporations is explained by the author and it is showed how it influenced various legal frameworks of the Lithuanian companies' legislation. Adam Smith (1776) has very precisely noticed that "The directors of such [joint-stock] companies, however, being the managers rather of other people's money than of their own, it cannot well be expected, that they should watch over it with the same anxious vigilance with which the partners in a private copartnery frequently watch over their own. Like the stewards of a rich man, they are apt to consider attention to small matters as not for their master's honor, and very easily give themselves a dispensation from having it. Negligence and profusion, therefore, must always prevail, more or less, in the management of the affairs of such a company." These conflicts and at the same time their influence on legal framework of corporate organizations to protect shareholders from negligence of managers are analyzed. On the other hand, the article shortly deals with how the separation of ownership and control affects limited liability of shareholder himself. It is contented that shareholder will lose privilege of limited liability if separation of control is infringed.