Ist die aktienrechtliche Verantwortlichkeit noch zeitgemäss?

An analysis of the board members’ and directors’ liability law shows that its present form has significant deficits: Confronting board members with a liability excee­ding their individual risk capacity causes risk adversity and a crowding out effect within the pool of potential board members.

In the light of these functional deficits, it does not come as a surprise that the track record of the existing liability provisions has been increasingly criticized. As a consequence, this paper makes a de- and reconstructing analysis of the current law. Starting point of the considerations are the three functions of liability law: damage compensation, behavior control as well as atonement and legal peace. Each of these functions is discussed separately.

The paper initially highlights that expectations and reality of the board members’ and directors’ liability law are far apart. With its unlimited liability for any form of breach of duty the current Swiss corporation law provides requirements…