Analyse économique de l'appropriation de la richesse dans l'entreprise et évolutions récentes du droit français
“Economic analysis of the appropriation of corporate wealth and recent development of French law” is an attempt to explain the changes, which the “New Regulation of the Economy (NRE)” has brought about for corporate law, in terms of the economic theory of the firm, its financing and the distribution of wealth. To this effect, and by way of introduction, the basic economics of corporate control and of the distribution of wealth between inside and outside investors, between controlling majorities and minority holders, and the respective roles and responsibilities of these groups are first explained, and then contrasted with the position held by traditional and by new French law. A more detailed analysis is then given on the basis of a subdivision into two main parts of the article, the first dealing with the relationship between controlling shareholders and the management, while, in the second part, the participation of, on the one hand, minority shareholders, and, on the other, of the employees in the distribution of wealth is discussed. As regards the relationship between controlling shareholders or a group of controlling shareholders and the management, the article first presents the concepts of private appropriation of benefits and of the rent due to corporate control, its basis, its economic rationale and limits, before discussing its recognition as an economic reality by the law. A second sub-part of this section is devoted to appropriation of corporate wealth by the management, in particular to the grant of stock-options as an illustration of how to balance rent appropriation and management incentives. Specific attention is then given to how the NRE-Act seeks to assure such a balance by way of, on the one hand, delegating the matter to party autonomy and contractual negotiation, and, on the other, controlling the exercise of this freedom by providing for transparency under corporate law, and for limits of wealth attribution under tax law. In the second main part of the article attribution of wealth to minority shareholders is contrasted with wealth participation by employees. While both groups, however different, take an increasing share of corporate wealth – in the case of minority shareholders even of the rent due to control –, their title to such participation is based on quite different economic and legal principles. In the case of minority stockholders French courts tend to justify increased participation in corporate wealth on the basis of considerations of equity. By contrast, wealth participation by employees through acquisition of stock at preferred prices is both a matter of a corporate incentive policy, and of a State’s social policy. In France, in particular, the legislator seeks to promote both objectives inter alia by means of tax law, which, therefore, is explained in some detail.
Volume (Year): t. XVI, 4 (2002)
Issue (Month): 4 ()
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