L’ABUSO DEL DIRITTO E BUONA FEDE NEI RAPPORTI SOCIETARI

In the company relationship, the safeguard of the shareholders against the abusive exercise of their prerogatives is incomplete and unsatisfactory. Indeed, the invalidity of the deliberations for the abuse of majority rule is the only remedy against these kinds of exercise, as well as the compensation for damage. Differently, in the case of abuse of minority, the last indicated remedy is the only allowed of the jurisprudence. The research is about the building and the cases where these jurisprudence figures are configurated. However, in conclusion of this research emerges that, in order to conguration the abuse of majority and the abuse of minority, it’s really necessary the evidence of the intention to damage the interest of the other shareholders, although the exam of the exercise of the shareholder’s rights is through the use of the rule of the objective good faith. Infact, it’s well known, that the shareholders must exercise their own rights, especially the exercise of vote, as an act of exercise of the corporate contract, in full compliance with the rule of the objective good faith as generally rule. Therefore, it is considered necessary to take into examination the relation existent between the abuse of law and the praticality of the rule the objective good faith. It should be emphasized that the debate of doctrine about the prohibition of abuse of law, especially in the civil field, isn’t still clear. The research continues to outline the figure of the prohibition of abuse of law to verify the usefulness on the field of the obbligations and the contracts. At the end of this recognition, it is argued the uselessness of the use of this jurisprudence figure because its function is fully satisfied from the rule of objective good faith. The latter, infact, in addition to address the holder of the exercise of the prerogatives, it’s taken from judge as tool to verify and to qualify the conduct, or as tool to balancing the interests of the parties, or also as tool to impose the accessory obligations, also positives obligations, headed to safeguard the interest of the parts. Thereby, the rule the objective good faith work also in integrative- corrective function on the basis of recognition of this rule as internal limit of the acts of private autonomy. It follows that the judge, also in company field, can judge the exercise of the shareholders’s prerogatives in the light of the only rule of objective good faith, without have to use the prohibition of the abuse of law as technical argumentation. Moreover, in the application of the rule of objective good faith, it can consider legitimizes the imposition of the positive obligation both toward the shareholders that toward the society. So, this general clause, if this is applicated in this sense, could offer a safeguard to shareholders far greater than respect a that derived from the configuration of the prohibition of the abuse of law and of the jurisprudence figures now used (the abuse of majority rule and the abuse of minority,) because all require unavoidably the evidence of the of the intention to damage the interest of the other shareholders that it hard to prove.