چکیده:
Although, in the past, there was a theory and thought that a company could not repurchase its own shares, even if such an option was explicitly granted to it in its articles of association, because this action would lead to a reduction in the company's capital and the allocation of company assets to the shareholders whose shares were repurchased. However, today, in most legal systems of countries with modern commercial law, not only can a company repurchase its own shares, but it also has the authority to issue temporary and subscribable shares. Consequently, it seems that the right or authority to repurchase shares and issue subscribable and temporary shares is necessary for public joint-stock companies in Iranian commercial law. The present article first examines the legal nature of shares, concluding that a share is an independent and commercial asset capable of being traded and owned, and then examines the possibility of its repurchase by the issuing company.
خلاصه ماشینی:
48 and 42) This theory is adapted from French law, because French jurists, in the discussion of the nature of shares, consider the share to be a term that has dual meanings: on one hand, it expresses the partner's right in the company's capital, and on the other hand, it is representative and indicative of the shareholder's rights in the company.
In the event that the share is considered a certain claim and the shareholder is also considered a certain creditor, if the share is sold to the company, regardless of the legal prohibition in Article 198 of the Commercial Code, the contract is valid; because any creditor and debtor can conclude a contract regarding a claim and a debt, and the debtor, by purchasing the claim from the creditor, becomes the owner of his own 'ma fi al-dhimmah' (debt-based property), and according to Article 300 of the Civil Code, ownership of 'ma fi al-dhimmah' is one of the causes for the discharge of an obligation.
Therefore, if the share is considered the shareholder's claim, its purchase by the issuing company, regardless of the prohibition in Article 198 of the Commercial Companies Law, is a reasonable and possible matter.
Therefore, based on this theory, which is accepted by custom and the commercial market, the repurchase of shares by the issuing company is valid, and it seems that based on this very nature, shares are traded customarily, and in terms of compliance with the rules of contracts and Article 190 of the Civil Code, no problem appears to exist.
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