精华全英文版公司法教程.ppt

Corporate Law,Prepared by Wang Yan,Teaching plan: 1 Introduction of Commercial Organization 2 Formation of corporation 3 Personality of corporation(公司人格制度） 4 Raising and maintenance of capital （公司资本的募集和维持） 5 Corporate Governance and Corporate Structure 6 Shareholders meeting ( membership and control) 7 Board of Directors and Officers 8 Supervisory board (监事会) and Auditors 9 Combination, split-up and alteration of corporation 10 Takeover and Anti-takeover Measures,11 Winding-up, liquidation and bankruptcy 12 Insider trading and other securities fraud(内幕交易与其他证券欺诈） 13 Corporate suits (shareholder personal suit, suit instituted by the corporation, derivative action, class action),Textbook Hong Kong Company Law Reference Book Corporations: Examples and Explanations by Alan R. Palmiter （公司法：案例与解析，第四版，影印系列，中信出版社） Assessment Method Attendance and Participation 30% Assignment and Presentation 20% Final Examination 50%,Contact: Mobil ph. 0086E-mail: swallow_ swallow_,Unit 1 A brief introduction of Commercial Organization,1. Some legal terms in corporate law a. natural person v. legal person 自然人 法人 b. common law legal system v. continental law legal system 普通法法系 大陆法系 英美法法系 民法法系 (civil law legal system) (Anglo-American law system),Civil Law System (Continental law system),The civil law system is the general typology of legal systems found in most countries. It is an alternative to common law system and has its roots in Roman Law. It is employed by almost every country that was not a colony of the British Empire. In most jurisdictions the civil law is codified in the form of a civil codes, but in some, like Scotland it remains uncodified. Most codes follow the tradition of Code Napolon in some fashion. Notably, the German code was developed from Roman law with reference to German legal tradition. Civil law relies on legislation, rather than judicial decisions for law. Civil law system do not recognize judge-made law.,Common Law,Common law is a system of law used in England, all of the states of the United States (except Louisiana) and other former British possessions such as Australia, Canada (except Quebec), India, Ireland, Jamaica, New Zealand and Hong Kong. The Common law system emphasizes the role of judges in determining the meaning of laws and how they apply. It arose beginning in the eleventh and twelfth centuries as the English monarch appointed royal judges to resolve disputes in the name of the king (or queen). As there are little formal law to apply to many disputes, the decisions handed down by the judges literally made the law.,Chinese Law,The Law of China, for most of the history of China, was rooted in the Confucian philosophy of social control. These influences remain in the contemporary legal system of the Peoples Republic of China. Ancient law (1) from Qin to Xi Zhou （先秦到西周） (2) from Han to Tang (西汉到魏晋南北朝） (3) from Tang to Qing （唐朝到清朝前期） (4) Qing to Minguo (清后期到民国初年）,PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRCs socialist background, the German-based law in Taiwan Province, and the English-based common law used in Hong Kong SAR. The law of the United States has also been very influential particularly in the area of banking and securities law.,c. case law v. statuary law 判例法 制定法 d. Legal Liability natural person liability v. legal person liability limited liability v. unlimited liability joint liability v. individual liability e. Civil law and Criminal Law Civil cases may include suits for breach of contract or tort cases, such as suits for personal injuries. Typically, they involve a request for damages of the wrongdoer. Criminal cases involve a representative of government attempting to prove the wrong committed against society and seeking to have the wrongdoer punished by the court system.,2. Introduction to different forms of business entities,1.1 sole proprietorships 1.2 partnerships (general partnership, limited partnership, limited liability company) 1.3 corporations,2.1 Sole proprietorship,2.1.1 definition A person doing business for himself or herself is a sole proprietor; the business organization is a sole proprietorship. The sole proprietorship is the oldest and simplest form of business organization. As a proprietor, a person may simply begin to do business without formality in enterprises that do not require a government license or permit. The proprietor generally owns all or most of the business property and is responsible for the control, liabilities, and management of the business. In a sole proprietorship, legally and practically the owner runs the business, and capital must come from the owners own resources or from borrowed resources. The greatest disadvantage of the sole proprietorship is the limited alternatives for raising capital and the proprietor usually bears unlimited responsibility to the enterprises debt.,2.1.2 characteristics a. sole proprietorship is set up by one person; b. the assets of proprietorship belongs to the investor; c. the investor bears unlimited liability to the proprietorships liability; d. the proprietorship is not a legal person. 2.1.3 merits a. it does not need large amount of capital; b. it enjoys tax benefit; c. its easy to organize and inexpensive to operate 2.1.4 demerits a. its very difficult to raise capital; b. the investor bears unlimited liability; c. the business scale is small.,2.2 Partnerships,2.2.1 definition A partnership is defined as an association of two or more persons to carry on a business as co-owners for a profit. The partners or general partners share control over the businesss operations and profits. Many attorneys, doctors, accountants, and retail stores are organized as general partnerships. A partnership can begin with an oral agreement between two or more persons to do business as partners or with an implied agreement that may be inferred from the conduct of the partners as they do business together. The partnership agreement usually specifies such matters as the business name, ownership interests of the partners, partners responsibilities, method of accounting, duration of the partnership, and procedures for the partnerships dissolution.,2.2.2 characteristics a. the admission of new partner needs unanimous consent b. partners are liable for the partnerships obligation. c. partners bear joint and separate liability. （连带责任） 2.2.3 merits a. easy to organize and inexpensive to operate b. enjoys tax benefits c. keeps commercial secrete private 2.2.4 demerits a. partners do not enjoy limited liability b. a partner retirement, bankruptcy, withdraw or death may cause the partnership to dissolve,Case 刘立、程非、张武三人合伙于二年四月创办生利纸品厂，各出资10万元，二一年五月张武退伙另图发展，收回了自己的全部合伙投入费及应得的利润。二二年七月债权人何强向张武追讨二年七月的欠款2.625万元（含二年的利息5%），张武以自己早已退伙为由拒绝归还，经多次协商未果，向人民法院提起诉讼，要求张武按协议归还欠款及利息2.625万元。,审理：人民法院在审理中查明，二年四月，刘立、程非、张武自愿合伙创办生利纸品厂，各出资10万元，利益共享，风险共担，有合伙协议为证。 二一年五月张武退伙，抽回全部合伙投入费10万元及收益分配1.75万元，未对债务承担进行分割。 二年七月，三人共同决定向债权人何强借款7.5万元，两年期利息5%，到期一次偿还7.875万元，由各人承担三分之一，有借款协议为证； 刘立、程非已按协议归还何强借款5.25万元。 判决：张武在判决生效之日起十日内一次性归还债权人何强借款2.625万元,2.3 Corporations,2.3.1 definition A corporation is owned by shareholders who elect a board of directors to manage the business. Shareholders have limited liability for the obligations of the corporation. 2.3.2 characteristics a. Owners liability: the shareholders enjoy the limited liability; b. Existence: The existence of the corporation is independent from the change of the shareholders. c.Legal Status: a corporation is a legal person and a legal entity independent of its owners (shareholders) and its managers (officers and board of directors);,d. Management: the management of the corporation is vested in the board of directors; e. Transferability of owners interest: the shares may be sold or transferred to a third person without the approval of the corporation. f. Taxation: a corporation pays income taxes on its income. A shareholder would have personal income from the corporation when the corporation pays him a dividend. And the shareholders pay tax on the dividends.,2.3.3 merits a. the investor enjoys limited liability b. the business is managed by professional managers c. the shareholders can easily exit the corporation by transferring the shares d. it can easily get money from the bank or securities market 2.3.4 demerits a. tax disadvantage b. more expensive to operate c. complex structure,Case 2002年4月30日，山东省东营某汽车修理有限公司以资金周转困难为由，向王某借款20万元作为生产的流动资金。双方约定年利率为7，借款期限为1年，到期连本带息归还。但到约定的时间，该公司未向王某付款。汽车修理有限责任公司是由审理石油管理局钻井某公司、香港某公司出资组成的合资公司。见还款无望，王某将汽车修理有限公司、钻井公司、香港公司诉至法院。 Questions: 1. 石油管理局钻井公司、香港公司和汽车修理公司是什么关系？ 2. 法院该判谁偿还王某的借款？,3. emergence and development of corporations,Ancestors of the modern corporation existed in the times of Hammurabi, ancient Greece, and the Roman Empire. As early as 1248 in France, privileges of incorporation were given to commercial ventures to encourage investment for the benefit of society. In England, the corporate form was used extensively before the 16th century. The famous British trading companies- such as the Massachusetts Bay Company, were the forerunner of modern corporation. The British government gave these companies monopolies in trade and granted them powers to govern in the areas they colonized.,4. Different corporations,In UK and HK, companies can be divided into private and Public companies Private companies are devised for the small business and are intended for situations where the members are also the managers of te company. E.g. in HK, a private company is a company which by its articles: (a) restricts the right to transfer its shares; and (b) limits the number of members to 50, not includng emplyees (c) prohibits any invitation to the public to subscribe for any shares or debentures in the company. If a companys articles fail to satisfy the requirements, it is a public company.,4. Different corporations,While in U.S., companies can be divided into close corporations and public held corporations. They are similar to private companies and public companies under UK law. In China, the main two kinds of companies are named limited liability companies and joint stock limited companies. (有限责任公司和股份有限公司）,Listed companies,Listed companies are those with shares trading in the securities market. The Stock Exchange of Hong Kong has two boards, the Main Board and the Growth Enterprise Market. The reqirements for listing on GEM are less demanding than the MB. Besides applications from HK registered companies, both board will accept companies registered in Bermuda, the Cayman Islands and PRC.,Overseas companies,In HK, a company incorporated outside HK which establishes a place of business in HK is presently termed overseas company.,Unit 2 the formation of corporation,1. In general The formation of corporation is the process that the promoters tries to meet all the requirements in order to obtain the legal personality.,2. Promoters（发起人）,2.1 Definition A person who takes the initiative in developing and organizing a new business venture. 2.2 The activities of promoters a. arrange necessary capital for the corporation b. obtain necessary assets and personnel c. arrange the procedures for the formation of the corporation,3. The conditions for the formation of corporation,There are only a few requirements for incorporation. The conditions prescribed by different countries vary, but usually include: a. the corporation shall have qualified and adequate promoters b. the corporation shall have minimum legally required capital c. the promoters shall make the articles of corporation d. the corporation shall have its own corporate name and corporate structure e. the corporation shall have its corporate domicile,Case 2000年初，某市一有限责任公司开张，登记为“大洋时装有限责任公司”（甲公司），从事服装生产。2000年底，在离甲公司500米处又有另一家公司开业，从事服装销售，登记名称为“大洋服装商贸有限公司”（乙公司）。两家公司名称类似，顾客经常混淆。为此，甲公司向法院提起诉讼，称乙侵犯其名称权。乙公司主张两家名称并非完全相同，行业也不同。甲公司为服装生产加工产业，乙公司为商品零售产业，否认自己侵权。 Questions 乙公司是否构成对甲公司名称权的侵犯？,4. Articles of association（公司章程）,5.1 introduction Articles of incorporation, frequently called “corporate charter: or “certificate of incorporation,” are at the heart of the incorporation process. They must be filed with the company registration authority in order to provide certain key information to the government and to any party dealing with the corporation.,4.2 the memorandum of association（公司大纲）,Another constitutional documents of a corporation in UK and Hong Kong is memorandum of association. The memorandum of association contains the name of the corporation, the registered office, the objects of the corporation, the liability of its members and the amount and division of shares with which the corporation proposes to be registered, while the articles prescribe regulations for the internal management of the corporation. In UK and Hong Kong, a corporation has both memorandum and articles, while in US, these two have been combined in one document, articles of association.,5. Business scope of corporation (the objects clause),5.1 in general The corporations business scope shall be defined in its articles of association and shall be registered according to law. 5.2 the change of business scope The corporation may change its business scope by modifying its articles of association, but shall go through the formalities for modifying the registration.,5.3 transactions beyond business scope,a. in China (1) the transaction is effective if it needs no special permission from the government (2) the transaction is not effective if it needs special permission,b. in United States and England: (1) in history, its not effective due to the principle of Ultra Vires (越权无效原则） Historically, an act of a corporation beyond its powers was a nullity, as it was ultra vires, which is Latin for “beyond the powers”. Therefore, any act not permitted by the corporation statute or by the corporations articles of incorporation was void due to lack of capacity.,Ashbury railway Carriage and Iron Co Ltd v. Riche A corporation was incorporated with the following objects: to make, sell, or hire railway carriages and wagons; to carry on the business of mechanical engineers and general contractors; and to purchase, lease, work, and sell mines, minerals, land and buildings. The Directors contracted to purchase a concession to build a railway in Belgium and to provide Riche with finance for the construction of the railway. It was held that the contract was ultra vires and void.,(2) nowadays, its usually effective Today, the ultra vires doctrine is of small importance for two reasons. First, nearly all corporations have broad purpose clauses, thereby preventing any ultra vires problem. Secondly, most statutes do not permit a corporation or the other party to an agreement to avoid an obligation on the ground the corporation action is ultra vires.,2003年6月，深圳某外贸公司向原告表示能介绍出口到俄罗斯的业务，但要求原告必须办理GOST认证，同时推荐被告为原告办理。此前原告的产品从未出口到俄罗斯，但俄罗斯广阔的市场需求对原告极具诱惑，为了能作成这笔生意，原告和被告就GOST认证一事于2003年6月24日签订合同，原告为委托方，被告为认证方，认证费用为58000元。该合同是被告提供的格式合同，根据合同条款，作为认证方的被告应做到：1、严格按照俄罗斯产品质量认证方面的法规和国际准则，审查原告的产品质量是否符合俄罗斯检测标准；2、在收到原告交付的费用后，及时组织实施有关的产品认证活动；3、被告在作出认证评定结论后，应及时办理是否批准原告取得认证注册资格的手续。合同签订后，原告向被告支付了58000元认证费用，可不久后的7月12日，深圳特区报B1版以很大的篇幅报道了被告进行“黑认证”并与其他外贸公司涉嫌唱“双簧”骗取钱财被国家认鉴委等部门查处。看到这则报道后，原告十分震惊，方知被告根本不具备认证的主体资格，其营业范围没有认证业务。知道上当后，原告急忙向法院提起诉讼，要求被告退回58000元的认证费用。,被告的营业执照上载明的经营范围是：举办实业（具体项目另行申报）；国内商业、物资供销业（不含专营、专控、专卖商品）；展览设计、信息咨询、企业形象策划（不含限制项目）；进出口业务（领取经营许可证后方可经营）。进行GOST认证并不在其经营范围之内，说明被告不具有认证机构的主体资格,法院经审理后认为，原被告双方于2003年6月23日签订的合同主要内容是被告为原告办理GOST认证，该合同是认证合同。根据产品质量认证机构认可管理办法的规定，凡申请开展产品质量认证工作的机构，必须依据该办法办理手续，申请国家技术监督局批准许可并取得产品质量机构认可证书，方可实施产品质量认证工作。因此认证活动是特许经营的，经营者需经过行政主管部门严格审批，取得产品质量机构认可证书并在工商登记经营范围内注明，方可从事认证活动。而被告工商登记的营业执照上所载明的经营范围根本没有登记认证业务，故被告不具有认证资格，其认证活动超出经营范围，并违反了法律法规的强制性规定，依据合同法极其司法解释的规定，双方所签合同为无效合同，原告因履行合同而支付的认证费用58000元，被告应当退回给原告。,6. Preincorporation Contracts,In common law system: 英美法系 6.1 Contracts executed in the name of the promoter If the promoter enters into contract in his or her own name without referring to the corporation with the thought of subsequently assigning the contract to the corporation, personal liability on the part of the promoter clearly exists. The subsequent assignment of the contract to the corporation does not release the promoter of personal liability unless the creditor agrees, to release the promoter and look only to the corporation for performance. The release of a party to a contract when it is assumed by another is called a novation.,6.2 Contracts entered in the name of the corporation,The promoter may sign a contract in the corporate name when in fact the corporation has not yet been formed. Many cases say that such a promoter is personally liable. If the corporation is thereafter formed and adopts the contract, the promoter may argue that the corporation shall bear the liability of the transaction, but his probability of success is not very good.,Kelner v. Baxter A company was being formed to buy a hotel from K. A written contract was made on behalf of the proposed company by A, B and C for the purchase of wine from K. The company was formed, the wine was delivered and consumed but, before payment was made, the company went into liquidation. It was held A, B and C were personally liable on the contract.,6.3 Contracts referring to the fact the corporation is not yet formed,In this case, the contract is signed by the promoter and the third party when both are aware that the corporation has not been formed. And if there is an express agreement that the man who was signing was not liable, usually the promoters are not personally liable on the contract.,In China: 6.4 If the incorporation procedure fails, the promoters bear joint liabilities on the contracts. 6.5 If the corporation is finally established, the corporation bears the liabilities on the contracts.,7. Defective incorporation 瑕疵设立,7.1 the reasons for defective incorporation a. the promoters have no civil capacity to form a corp