Commentary on the Stock Corporation Act - Editorial Considerations
Stock Corporation law has changed considerably over the last two decades: It has become increasingly apparent that European law is assuming ever greater significance. Jurisprudence has emerged at least in terms of certain questions as an important ally of the legislator. Furthermore, scholarship and practice have contributed to the theoretical, practical and, in particular, the statute based pervasiveness of stock corporation law as a legal subject matter.
The diversity and complexity of the Stock Corporation Act represented a distinct challenge for the compilation of the new edition. As in the previous edition, stock corporation law is first and foremost presented as the organizational law for individual corporations and – as is now mostly the norm – for groups of companies. Placing emphasis on certain areas did not seem appropriate in light of the rapid development of modern stock corporation law as well as the risk that their inclusion could wrongly eclipse more important issues. Moreover, there is at present a broad-ranging consensus in corporate law and economics that although it is certainly appropriate to thoroughly present current views and comprehensively document relevant jurisprudence – as is here intended – the primary endeavour of such a work should be consideration of the wide array of questions regarding the functions and fundamental principles contained in statutory and decisional authority such that users can knowledgably and independently appear before courts, advise clients and perform necessary research. Nonetheless, in respect of the conceptualization of the commentary, a number of observations are particularly worth mentioning.
In this commentary, perhaps more than in others, more focus is placed on avoiding a presentation of stock law as a topic unto itself. This approach can be observed in several regards. In German law, discussing similar functional problems, such as those experienced by limited liability companies (GmbH) or other organizational forms, along with their solutions can be useful in terms of understanding doctrine, methodology and legal policy. This is quite understandable in light of the particularly pronounced freedom Germany affords business entities in selecting an organizational form. In certain fields, e.g. accounting law, it has (under European influence) already been appreciated that it is the nature and scope of the financial statement, as measured by various means, which is crucial as opposed to the organizational form. In accord with this insight, a comprehensive treatment of accounting law addressing all of the various organizational business forms (and incorporating the special regulations in the Stock Corporation Act in addition to other materials) is to be compiled and will be provided to individuals who have purchased this commentary as well as the two related commentaries edited by Staub and Hachenburg respectively.
It is not as obvious but nonetheless important to take into consideration the reciprocal relationships shared by stock corporation law on one hand and by banking law, stock exchange regulations and securities law on the other. This is even more applicable in a universal banking system, such as in Germany, where credit institutions play(ed) a significant corporate roll by acting as proxies, sitting on supervisory boards and, not infrequently, serving as hausbank or even as stock holders. For the purposes of the commentary, this is certainly not to suggest that all of these named areas could be covered. For the user however, an increased awareness of the legal and functional relations may prove useful. These relationships are also outlined in the introduction.
Special consideration is given to the international dimension, especially to the implementation of European law, whose efforts toward the harmonization of company law are mainly aimed at stock corporations.