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Vanderbilt Law Review

David J. Supino

First Page

713

Abstract

French corporation law,which is primarily statutory, has seen no comprehensive statutory revision in almost a century; and while literally dozens of amendments have been engrafted on to the basic corporate legislation of 1867, they are for the most part ad hoc legislative resolutions of particular problems which betray no underlying unity of design and which have broken the unity of the old legislation. The result is that the law is Janus faced, and the theories which the law embodies are not wholly in accord with social and economic needs.

In this necessary process of assimilating new insights into the law the French courts have a potentially important role. It is true that the courts are said to exercise only a very limited law making power:they are required to decide cases in terms of law, which means statutory law. Yet no statute can be so well drafted as to be comprehensive, and gaps inevitably appear. Faced with the need both to create law and to avoid the charge of usurping legislative power, the courts have had resort to the "spirit of the code" in order to resolve disputes on which the legislature has not passed. But such a rationalization becomes unacceptable when the code is shown to have no unity of design, and when the "spirit," insofar as it is existent, would dictate an inexpedient result. Thus there is born the attempt, particularly on the part of the commentators, to construct conceptual theories that will harmonize the seemingly discordant pattern of the law and will allow the courts to produce or justify what is felt to bean acceptable result.

It is the purpose of this essay to study one small facet of this process of adaptation and change; to attempt to achieve some under-standing of the French law governing the relation of the shareholders to the societ anonyme, the French analogue of the corporation.

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