О значении теорий юридического лица в современном корпоративном праве

Вестник экономического правосудия Российской Федерации. 2021. № 3. С. 36–73.

Mamageishvili V.

Legal entity theories pose the key question "what is the legal entity?". Depending on an answer to it, scholars develop a system of ideas and views on how the legal entity's activities should be regulated within the framework of such theories: whether its property should be separated from that of its shareholders, to what extent it should independently be liable in tort, whether it should have certain rights and guarantees, what type of activities and transactions is it allowed to perform on the market. The answer to this first and fundamental question is rather philosophical in nature and is based on metaphysical reasoning. It is argued, therefore, that there is a risk that policy decision regarding regulation of legal entities are based on highly subjective and even speculative arguments. It is preferable to be guided by more objective criteria and approaches when developing corporate law rules (and decisions of courts on corporate disputes). As an alternative, the author proposes the idea of analysis of the economic and social goals and functions of the legal entity in process of developing political and legal decisions (the so-called functional approach).

Keywords: юридическое лицо, legal policy, гражданская правосубъектность, теория реального субъекта, legal entity, теория фикции, политика права, legal capacity, theory of fiction, real entity theory