CONDIZIONI PERSONALI DEL SOCIO E SITUAZIONI SOGGETTIVE SOCIALI NELLA S.P.A.

This research moves in a regulatory scenario where the "typological" identity of capital companies has been profoundly transfigured, a particularly clear phenomenon in limited liability companies, as amply highlighted in the most recent doctrinal studies. In fact, more recently, there is a tendency to point out that the “type” s.r.l. has by now lost some identity connotations, which characterized it in past seasons, distinguishing itself by now, essentially, as a multifunctional matrix, tendentially neutral - or in any case hybrid - from the perspective of the possible - profoundly different - implementations, in terms of the "typology of realities", of the entrepreneurial program chosen by the associates. In the limited liability company, on the other hand, even if following the outcome of the reforms of 2003 and 2014, the principle of "capitalist" proportionality between investment risk and management "power" has experienced a substantial and general crumbling (or in any case a reduction in quantitative thresholds contained for some sections of the discipline, such as, for example, the proportionality between the voting power and the number of categories of shares held), legal doctrine certainly continues to record a greater sharpness and stability of the features that distinguish its unfailing characteristics, due to an unavoidable need for coherence with the typological identity of the joint stock company. In reality, as we will try to demonstrate along the course of the investigation, through the in-depth study of some segments of its discipline (in particular, with regard to the right to vote, the institutions of subordinated voting under the condition referred to in 2351, second paragraph, the graduated vote or by ceilings pursuant to Article 2351, third paragraph of the Civil Code and the “loyalty shares” pursuant to Article 127-quinquies of the TUF, for other subjective social situations, the institutions of restriction or subjective selection of the circulation or redemption of the shareholding) it seems possible to recognize an ever clearer opening of the legislator in the direction of a greater space of "personalization" of the shareholding for the statutory autonomy of the shareholders. In particular, in the latter direction, we will try to support and demonstrate that it is generally permitted for statutory autonomy to satisfy the aforementioned requirement by subordinating the entitlement or the intensity of some subjective social situations to predetermined conditions (also "atypical" ), relating to events concerning a personal circumstance of the shareholders, provided that the latter are identified “per relationem” in an indefinite manner, without therefore encroaching on the field of particular rights "ad personam". And this, according to a point of view which, even if at the root it follows in the wake of the more recent instances which tend towards an overcoming (or even better for a "differentiated" approach according to the segments of the discipline considered) of the monolithic opposition between contractual visions or institutional aspects of the joint-stock company, it seems more easily approachable to the first pole. Once the discipline sectors of the s.p.a. where it is possible to recognize the admissibility of the technique in question, a taxonomy is then proposed according to the "typology" of subjective conditions in question, and so to the principles of company law most directly involved; therefore, more generally, to the identifiable limits for the technique of differentiating the position of partners in speech, both from a static and dynamic perspective. Ultimately, therefore, following the outcome of the investigation, the effective typological physiognomy of the joint-stock company will be discussed, arriving at the conclusion that the phenomenon of differentiation of the mandatory characteristics of the type of capital companies, among the various possible implementations of the entrepreneurial programme, seems manifest itself also in the s.p.a. (in its divarication between the model of the closed joint-stock company and which resorts to the risk capital market), at least from the visual angle of the morphological conformation of the shareholding.