In joint stock and limited liability companies, when partners and creditors sue against company directors for compensation of their direct losses, the compensation obtained is paid to them, not to company. This situation has consequences against the company, in case the company suffers a loss as well as partners and creditors. Because, when partners and creditors take action before the company and compensate their losses, there is usually no amount that can be applied in the assets of the managers, and the company faces the risk of not being able to compensate its losses. This risk becomes even more apparent when the company goes bankrupt. As a matter of fact, in order to file a liability lawsuit on behalf of the company in the event of bankruptcy, a decision must be taken to file a liability lawsuit at the second meeting of creditors. Until this decision is taken, partners and creditors take action in advance and benefit primarily from the assets of the managers, and there is no amount that can be applied by the company in the assets of the managers. In order to prevent this, the Swiss Federal Court seeks the condition of violation of a norm that aims exclusively to protect their own interests so that partners and creditors can file a liability lawsuit in case the company, together with the partners and creditors, is directly damaged. Thus it significantly restricts the right of action of partners and creditors. The Federal Court maintains this practice, which was initially adopted both in and out of bankruptcy, in its current decisions only in case of bankruptcy. In our study, the application of the Swiss Federal Court on this issue is examined.
Liability Claim, Direct Damage, Indirect Damage, Benefit First, Norm That Aims Exclusively Protect the Interests of Shareholders and Creditors.
