La proportionnalité en Droit des sociétés

• Main Author: أمل مملوك
• Format: Article
• Language: Arabic
• Published: Qatar University Press 2020-05-01
• Series: International Review of Law
• Subjects: Proportionality; Equality; Adequacy; Capital; Balance of interest
• Online Access: https://185.37.108.12/index.php/IRL/article/view/1548

This study deals with the principle of proportionality in corporation law. Even if the proportionality stems from public law, it has invaded different branches of private law, but without being analyzed in detail in corporation law. This study also focuses on Tunisian law with an openness to French law, its inspiration source. In corporation law, the proportionality has two aspects: it is mathematical and linked to a goal. The mathematical aspect of the proportionality is reflected in compliance with the shareholder’s prerogatives with his participation in the capital, so that he could protect his investment and thereby the interests of the company. The proportionality, which is linked to the purpose, is expressed by two ideas: the adequacy of the means used with the purposes in mind and the search of the balance of interests. Some authors think that the mathematical proportionality gave way to the proportionality linked to a purpose. We do not share this opinion and we have tried to show that it is exaggerated. In fact, despite the exceptions to the mathematical proportionality, it is still surviving and should be maintained, because it translates the shareholder’s spirit of cooperation (affectio societatis). This study has deepened the proportionality linked to the purpose, defending its enhancement, since it has a relation with the good corporate governance.