تقسیم منافع موهوم شرکت‌های سهامی در حقوق ایران؛ با نگاهی به حقوق فرانسه

‌ ∴ Introduction ∴ ‌
The regulation of profit distribution in joint-stock companies is a critical legal and financial consideration, particularly in jurisdictions that emphasize the protection of shareholders and creditors. In Iranian law, as well as in many other legal systems, profit distribution mechanisms and restrictions aim to safeguard the financial integrity of companies and prevent harm to creditors and non-beneficiary shareholders. This article focuses on the issue of "fictitious profits" within the context of Iranian joint-stock companies, drawing comparisons with French law, where similar legal provisions address this issue under the concepts of Dividende réel (actual profit) and Dividende fictive (fictitious profit). In the Iranian context, fictitious profits are defined as distributions that do not adhere to legally mandated procedures, potentially jeopardizing the company’s capital, which is considered collateral for creditor claims.
     The consequences of distributing fictitious profits are significant and encompass both civil and criminal repercussions, including imprisonment for company officers under specific provisions of the Iranian Commercial Code. However, despite the gravity of these implications, there is limited focus on the concept and boundaries of fictitious profit distribution in Iranian law, particularly in joint-stock companies. This gap in legal clarity raises various questions regarding the interpretation of Article 240 of the 1968 amendment to the Iranian Commercial Code, which addresses fictitious profit distributions under certain conditions. This article seeks to clarify the scope of this article by exploring whether it applies strictly to the stipulated formalities or extends to a broader interpretation, potentially covering distributions to non-shareholders or violations beyond those explicitly listed.
‌ ∴ Research Question ∴ ‌
This research addresses several interrelated questions surrounding the legal framework for fictitious profit distribution in Iranian joint-stock companies. Specifically, the article seeks to determine the following:
     Does Article 240 of the Iranian Commercial Code restrict fictitious profit distribution only to the formalities mentioned, or does it apply more broadly to any distributions that violate the statutory framework?
     Is Article 240’s scope limited exclusively to joint-stock companies, or does it also cover other forms of commercial entities?
     What civil and criminal sanctions are applicable to those responsible for fictitious profit distributions, and under what legal grounds can these claims be pursued?
     How does Iranian law compare to French law regarding the regulation of fictitious profit distribution, and what lessons might be drawn from French practices and doctrines to enhance the Iranian regulatory framework?
‌ ∴ Research Hypothesis ∴ ‌
The primary hypothesis of this article is that Article 240 of the Iranian Commercial Code encompasses a broader interpretation of fictitious profit distribution, beyond the explicit formalities. Under this interpretation, fictitious profit distribution includes any profit allocations that contravene the legal requirements of the Commercial Code, providing grounds for judicial intervention and sanctions. It is hypothesized that this provision does not merely represent an enumerative list of conditions but instead sets forth essential formalities that, if violated, warrant legal recourse. Additionally, it is assumed that while Article 240 explicitly addresses joint-stock companies, its principles may extend to other commercial entities, where similar distributions could endanger the company’s capital and creditor rights.
‌ ∴ Methodology & Framework, if Applicable ∴ ‌
This study adopts a doctrinal and comparative approach, utilizing Iranian and French legal doctrines to examine the interpretation and enforcement of fictitious profit regulations within joint-stock companies. The methodology involves an in-depth analysis of Iranian Commercial Code provisions, specifically Articles 240 and 258, with a focus on statutory interpretation and judicial application in cases involving fictitious profits. Key legal sources include the Iranian Commercial Code amendments of 1932 and 1968, along with relevant jurisprudence, academic literature, and legislative commentary.
     A comparative framework is employed to provide context and depth to the analysis. This framework leverages French law as a benchmark due to its detailed and stringent regulations surrounding profit distribution in commercial entities. By juxtaposing the Iranian and French approaches, this article aims to illuminate the strengths and limitations of Iranian law, exploring whether elements of the French legal framework might offer valuable insights for reforming and enhancing the regulatory mechanisms governing fictitious profit distribution in Iran. Specifically, French legal doctrine’s distinctions between actual and fictitious profits serve as a point of reference for assessing the conceptual clarity and practical application of similar provisions in Iranian law.
‌ ∴ Results & Discussion ∴ ‌
The analysis of Iranian and French legal frameworks regarding fictitious profit distribution reveals nuanced differences and highlights key interpretive challenges in applying these laws. Article 240 of the Iranian Commercial Code, as amended in 1968, emphasizes strict adherence to formalities in profit distribution, covering actions such as the general assembly’s approval of financial accounts, the precise calculation and verification of distributable profits, authorization of distribution from reserves, and the method of profit allocation. Iranian law considers any failure to meet these formalities as a breach, deeming the distribution fictitious, irrespective of whether these failures are explicitly detailed within Article 240 or other related statutes. This establishes a general rule against any profit distribution that conflicts with the overarching legal framework.
     In comparison, the French legal approach, represented by Article L232-12 of the French Commercial Code, restricts the designation of fictitious profit distribution to non-compliance specifically within the article’s formalities. However, French law provides an alternative course through criminal prosecution under Article 314-1 of the French Penal Code, allowing charges of criminal breach of trust against directors who distribute profits in ways that endanger shareholder or creditor interests, such as distributions made to non-shareholders. This approach contrasts with Iran’s, which does not extend fictitious profit provisions beyond the specific commercial entities identified in its Commercial Code. Thus, Iranian law takes a broader perspective in defining fictitious profits, whereas French law narrows its scope but compensates with additional protections under criminal law.
     The broader application of Article 240 in Iranian law raises questions regarding its extension to non-joint-stock commercial entities. Some scholars advocate for a universal application of fictitious profit regulations across all commercial companies, arguing that the absence of specific provisions for other company types should not imply approval of fictitious profit distributions. However, this interpretation clashes with several fundamental legal principles, such as the legality of crime and penalties, which mandates explicit legislative backing for criminal sanctions. This is reinforced by the principles of in dubio pro reo (favoring the accused) and provisions in the 2013 Islamic Penal Code (Article 120), which suggest that extending criminal liability without clear legislative mandate is legally unsound. Thus, while the Iranian framework may offer stricter guidelines for joint-stock companies, applying these provisions to other commercial entities remains contentious without legislative reform.
     In terms of enforcement, the Iranian legal system provides both preventive and remedial measures against fictitious profit distribution. Preventive steps include the potential removal of directors before profit distribution is finalized. Post-distribution, legal recourse is available, including criminal complaints against company executives under Article 258 of the Iranian Commercial Code, as well as various civil claims. These civil actions include the invalidation of unlawful company decisions related to fictitious profits under Article 270, compensation claims against inspectors under Articles 154 and 148, damage claims against directors, the recovery of distributed fictitious profits from shareholders, and the right to demand calculation and payment of distributable profits in adherence to proper civil procedures. These remedies provide a multi-tiered legal framework to protect shareholder and creditor rights in Iranian law, albeit with some limitations due to interpretative uncertainties in applying these provisions to other commercial entities.
‌ ∴ Conclusion ∴ ‌
In conclusion, Article 240 of the Iranian Commercial Code introduces a broad interpretation of fictitious profit distribution, establishing that any profit distribution contrary to the law is deemed fictitious. This general rule implies that legal violations related to profit distribution extend beyond the explicit formalities of Article 240, covering any act that disregards statutory provisions. This expansive view contrasts with the French legal approach, which confines fictitious profit distribution to failures in meeting specific formalities outlined in Article L232-12. However, French law compensates for this narrower scope by allowing directors to face criminal charges for breaches of trust in profit distribution under Article 314-1 of the French Penal Code.
     The application of Article 240 to entities beyond joint-stock companies in Iran remains legally ambiguous and is met with resistance due to foundational legal principles that safeguard against extending criminal liability without explicit legislative direction. Although certain scholars argue for the universal application of fictitious profit distribution prohibitions, such an extension lacks the clear legal mandate necessary for enforceability, given the restrictive interpretations required in penal matters.