Kiekybinio atstovavimo taisyklės taikymo problemos

LTStraipsnyje nagrinėjamos kiekybinio atstovavimo taisyklės reglamentavimo ir taikymo problemos Lietuvos bendrovių teisėje. „Kiekybinis atstovavimas" plačiąja prasme suprantamas kaip taisyklė, nustatanti, kad teisinius veiksmus privataus juridinio asmens vardu turi teisę atlikti tik du ar daugiau kartu veikiančių asmenų. Nors kiekybinio atstovavimo taisyklė aktuali visiems privatiems juridiniams asmenims, straipsnyje daugiausia dėmesio skiriama kiekybinio atstovavimo nustatymo ir taikymo problematikai akcinėse bendrovėse bei uždarosiose akcinėse bendrovėse.

ENIn this article, the authors discuss the application of the joint representation rule within the framework of the Lithuanian company law. Joint representation in a broad sense implies that only two or more persons acting together are entitled to act on behalf of a company. Since the joint representation rule correlates with the application of the ultra vires doctrine, the validity of the agreements concluded by private legal persons as well as the protection of the bona fide third parties depend on the appropriate application of the joint representation rule. The authors submit that, according to the meaning of Article 9 of the First Council Directive (EEC) 68/151, Article 2.83(2) of the Lithuanian Civil Code, which determines that Article 2.83(1) of the Civil Code ('contracts concluded by the managing bodies of a private legal person in overstepping their authority shall impose obligations on a legal person except in cases where it is proved that concluding the contract the third person was aware or due to certain circumstances may not have failed to be aware of the fact that the contract has been entered into by a managing body of a legal person who was not authorized to conclude it') shall not be applied where the quantitative representation has been established, should have the meaning that acts done by the organs of a company are not binding if they infringe properly the estab- lished and the disclosed joint representation rule. It is an exception to the general rules (Articles 2.83(1) and 1.82(1) of the Civil Code) which restrict the application of the ultra vires to the agreements concluded by private legal persons.Although joint representation rule has to be absolute in the sense of Article 9.3 of the Directive, the authors question the Lithuanian rules that only allow unconditional joint representation to be disclosed in the Register of Legal Entities, that means this rule can not be restricted to the sum of the contract, to the sphere of activity or other criteria. The authors draw the attention to the fact that only the director of a company and one or more members of the board can be authorized to act jointly on behalf of a legal entity. The absolute joint representation is applicable to all contracts made by a company but it can also be extended to cover all legal acts of external competence of the company's organs. The authors stress that if the joint representation is established, it can not limit the competence of the director of the legal entity including entitlement to act on behalf of the legal entity in all legal proceedings. In this article, the authors also analyze the conditions for a proper practice when the joint representation is granted. The authors argue that this rule is only binding when established in the statute of a company and properly disclosed in the Register of Legal Entities.