Summary

The members of a management body must make business decisions in the name of the company and by using its assets, and there is always a risk of failure – to a lesser or greater degree. There must be rules stipulated in law that protect diligent company managers, that encourage them to take up positions as members of management bodies, and to take reasonable business risks in good faith in the name of the company, without undue fear of the possible resulting personal responsibility.

The concepts pursuant from the Estonian laws in force, and the rights and obligations stipulated therein in the field of company law, have not yet become unambiguously established in practice. It can therefore be presumed that in the disputes proceeding from enterprise there would be in this area a considerable number of problems and various interpretations. In addition to legal institutions, company law in many cases must also take into account economic factors. In this field, legal regulation must be particularly based on the economic analysis of the law.

The article examines the obligation of due diligence for the members of the management bodies of companies by primarily clarifying the features of the violation of the obligation, examining the bases for which the application of personal civil responsibility for the member of a management body of a company can be required, and assessing the current legal regulation of this field in Estonia through comparative analysis with the law of other countries. Here the theoretical standpoints of legal scholars are compared, positive law and the needs of actual economic life are discussed, the quality of Estonian legal acts is analysed, and proposals are made for finding solutions to the problems by taking into account the practice of other countries.