Mitgliedschaftseingriff und Normprägung

Abstract

The book analyses a commonly used line of argument, known as “infringement of shareholder rights”. Courts and legal literature try to derive specific, unwritten legal consequences from an infringement of shareholder rights, such as, for example, the material control of the general assembly’s resolutions and unwritten responsibilities of the general assembly in company law or the so-called doctrine of a “core area” of shareholder rights. This line of argument supposes that legislators and the parties of a shareholder agreement may infringe shareholder rights by drafting deficient statutory or contractual rules. To the contrary, statutory and contractual rules define the substance of shareholder rights. Following the well-known doctrine stating that fundamental rights are defined by statutory law [“normgeprägte Grundrechte”] shareholder rights could be described as “normgeprägte Rechte” [rights defined by statutory law]. Therefore, a fundamental line of argument in company law is revealed to be a striking misconception, whose methodical consequences are to be analysed in detail.