美国公司法 教学大纲.pdf

美国公司法 教学大纲 车 虎 编写 法学专业选修课程教学大纲 394 目 录 前言 395 第 1 课次 总 1 课次 396 第 2 课次 总 2 课次 398 第 1 课次 总 3 课次 399 第 2 课次 总 4 课次 400 第 1 课次 总 5 课次 401 第 2 课次 总 6 课次 403 第 1 课次 总 7 课次 405 第 2 课次 总 8 课次 406 第 1 课次 总 9 课次 407 第 2 课次 总 10 课次 409 第 1 课次 总 11 课次 411 第 2 课次 总 12 课次 413 第 1 课次 总 13 课次 414 第 2 课次 总 14 课次 415 第 1 课次 总 15 课次 416 第 2 课次 总 16 课次 417 第 1 课次 总 17 课次 419 第 2 课次 总 18 课次 420 第 1 课次 总 19 课次 421 第 2 课次 总 20 课次 422 第 1 课次 总 21 课次 423 第 2 课次 总 22 课次 424 第 1 课次 总 23 课次 426 第 2 课次 总 24 课次 427 第 1 课次 总 25 课次 428 第 2 课次 总 26 课次 429 第 1 课次 总 27 课次 430 第 2 课次 总 28 课次 431 第 1 课次 总 29 课次 432 第 2 课次 总 30 课次 434 第 1 课次 总 31 课次 436 第 2 课次 总 32 课次 437 第 1 课次 总 33 课次 438 第 2 课次 总 34 课次 439 第 1 课次 总 35 课次 441 第 2 课次 总 36 课次 442 美国公司法 395 前 言 教学目标 介绍现行美国公司法的基本原理和重要制度 代理制度 介绍和比较了三种所有制度和选择 设立公司的优势所在 公司的有限责任 揭开公司面纱 公司内部权力分配 公司治理 公司并 购等等 从而让同学们了解美国公司法基本内容 教学方法 案例教学和理论学习相结合 以案例教学为主 课堂案例讨论分析 多媒体演示 学习建议 美国公司法这门课的教学方法是案例讨论分析结合理论学习 所以学习美国公司法这门课 程 应注意以下几个问题 一 美国公司法的体例与我国公司法体例存在很大的差异 不能套用中国公司法的概念和体 例来理解美国公司法 二 美国公司法的主要渊源之一是法院判例 在这门课的学习过程中会有一定量的案例需要 同学们进行研究分析和讨论 因此需要同学们在课前做好足够的准备 看懂案例 详细掌握案情 并进行细致的思考和分析 以备上课讨论 案例是本门课的重点所在 三 美国公司法的渊源还包括成文法 各州都有自己的成文法和判例 所以其法律的规定呈 现多样性 初学起来可能会有些难以驾驭 一些州的重要判例和成文法往往被其他州所采纳 学 生学习时应以课程的重点部分作为学习的主要对象 对多数州所适用的主要规则进行重点掌握即 可 法学专业选修课程教学大纲 396 第 1 课次 总 1 课次 教学目的 介绍三种基本的所有制形式 代理制度和合伙制度以及公司的关系 代理制度是如何作为这 两种所有制形式的基础而存在的 难点 代理制度与合伙制度以及公司的关系 Introduction 1 Three Basic Forms of Ownership Sole proprietorships Partnerships Corporations 1 1 Sole Proprietorship Definition a business or financial venture carried on by a single person and which is not a trust or corporation A single owner Examples small retail establishments individual professional or service business such as a single dentist 1 2 Partnership Definition an association of two or more persons to carry on as co owners a business for profit Two or more owners Examples attorneys and accountants tend to conduct their activities as partnerships Some can be large international firms 1 3 Corporation Definition an association of shareholders or even a single shareholder created under law and regarded as an artificial person by courts One or more owners Examples auto companies supermarkets 2 Agency Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control and consent by the other so to act The one for whom action is to be taken is the principal The one who is to act is the agent 3 Agency and Partnerships 美国公司法 397 Each partner is an agent of the partnership for the purpose of its business An act of a partner for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership 4 Agency and Corporations 法学专业选修课程教学大纲 398 第 2 课次 总 2 课次 教学目的 作为 Agency 这一章的开始 了解 agency 的定义和 agency 的产生 难点 什么是 consent 和 control 以及怎样判断 Agency 1 Concept of Agency Agency is the label the law applies to a relationship in which by mutual consent formal or informal express or implied one person or entity called the agent undertakes to act on behalf of another person or entity called the principal subject to the principal s control 2 Creation of the Agency Relationship 2 1 Manifestation of Consent When the manifestation by the principal reaches the agent and the agent manifests consent an agency exists 2 2 Objective standard for determining consent 2 3 Agency a Legal Label Agency is a legal concept it applies regardless of whether the parties had the legal concept in mind and regardless of whether the parties contemplated the consequences of having the label apply 2 4 Consent and Control To create an agency the reciprocal consents of principal and agent must include an understanding that the principal is in control of the relationship 2 5 Consent to Serve the Principal s interests To create an agency relationship the agent must manifest consent to act for the principal that is the agent must manifest a recognition that serving the principal s interests is the primary purpose of the relationship 美国公司法 399 第 1 课次 总 3 课次 教学目的 在合同关系中 代理人怎样让被代理人对其行为负责 难点 怎样判断 actual authority 和 apparent authority 3 Binding Principals to Third Parties in Contract 3 1 Binding the Principal The agent s power to bind the principal to the third parties and to bind third parties to the principal is central to the agent s ability to accomplish tasks on the principal s behalf 3 2 Power v Right An agent has the right to bind the principal only when the principal has authorized the agent to do so by making a manifestation reaching the agent An agent s power to bind the principal is the ability to attribute the agent s conduct to the principal as if the principal had acted 3 3 Actual Authority 3 3 1 Actual Authority Express and Implied Unless otherwise agreed authority to conduct a transaction includes authority to do acts which are incidental to it usually accompany it or are reasonably necessary to accomplish it The implication is based on custom or past dealings or the principal s objectives or other facts known to the agent 3 4 Apparent Authority 3 4 1 Creation Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which reasonably interpreted causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him An apparent agent has the power to bind not the right The power comes from the appearance of legitimate authority 3 4 2 Objective Standard Reasonableness Requirement 法学专业选修课程教学大纲 400 第 2 课次 总 4 课次 教学目的 在合同关系中 怎样通过 estoppel inherent power 和 ratification 让被代理人对代理人的行为 负责 难点 什么是 estoppel 辨别 apparent authority 和 estoppel 什么是 inherent power 3 5 Estoppel 3 5 1 Estoppel imposes liability on a person for a transaction purported to be done on his account to persons who have changed their positions because of their belief that the transaction was entered into by or for him if a he intentionally or carelessly caused such belief or b knowing of such belief and that others might change their positions because of it he did not take reasonable steps to notify them of the facts 3 6 Inherent Power 3 6 1 General Agent If a principal authorizes an agent to conduct a series of transactions involving a continuity of service the law calls the agent a general agent If in contrast a principal authorizes the agent only to conduct a single transaction or to conduct a series of transactions that do not involve continuity of service then the law calls the agent a special agent Key to distinguishing ongoing responsibility 3 7 Ratification Ratification occurs when a principal affirms a previously unauthorized act Ratification validates the original unauthorized act and produces the same legal consequences as if the original act had been authorized Ratification usually releases the purported agent from any liability for having made an unauthorized contract 4 Partially Disclosed or Undisclosed Principal 4 1 Partially disclosed the third party knows or has reason to know that the agent is acting for another a principal but not who that other is Undisclosed the third party does not know or have reason to know that the agent is acting as an agent 美国公司法 401 第 1 课次 总 5 课次 教学目的 在侵权中 怎样通过 respondeat superior 理论使被代理人对代理人的侵权行为对第三人负责 在代理关系中 代理人的 fiduciary duties 代理的 termination 难点 Master servant relationship 是怎样构成的 什么是 physical control 怎样判断 scope of employment 5 Binding the Principal in Tort 5 1 Respondeat Superior Respondeat superior imposes strict vicarious liability on a principal referred to as the master when an agent s tort has caused physical injury to a person or property the tortfeasor agent meets the criteria to be considered a servant of the principal and the tortious conduct occurred within the servant s scope of employment 5 2 Mater and Servant A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service An agent is a servant if the principal controls or has the right to control the agent s physical conduct in the performance of the services 5 3 Servant v Agent 5 4 Servant v Independent Contractor The independent contractor is a nonservant who provides services or undertakes tasks for others 5 5 Scope of Employment 6 Fiduciary Obligation of Agents 6 1 Rational of the Fiduciary Obligation Agency is a fiduciary relation The agent s role is a selfless one and the principal s objectives and wishes are dominant The agent is obliged to prefer the principal s interests over its own and to act solely for the benefit of the principal in all matters connected with the agency 6 2 Fiduciary Obligation of Agents Duty of loyalty Duty to act within authority Duty to obey instructions 法学专业选修课程教学大纲 402 Duty of care and skill Duty to provide information 7 Termination of the Agency Relationship Through the express will of either the principal or the agent Through the expiration of a specified term Through the accomplishment of the agency s purpose By the occurrence of an event or condition By the destruction of or the end of the principal s legal interest in the property By the death bankruptcy or mental incapacity of the agent or principal By the expiration of a reasonable time 小结 本章介绍了代理制度的产生 在合同和侵权中的情况以及终结 重点是 binding the principal in contract 其中agent s power 是核心 这个部分为以后理解公司结构和治理打下基础 另外fiduciary duties 也是以后在介绍公司内部责任义务的时候要涉及的重要内容 美国公司法 403 第 2 课次 总 6 课次 教学目的 了解什么是 partnership 美国规制 partnership 的法律主要是哪些 合伙中的个人对合伙债务 应承担怎样的责任 难点 合伙的概念 特征 合伙中的个人责任 注意 这里的 partnership 指的都是 general partnership Partnership 1 What is Partnership 1 1 Definition A partnership is an association of two or more persons to carry on as co owners a business for profit One fundamental aspect of a general partnership is the contract based relations manifestations of intent to associate among the partners It is not necessary that the participants intend or agree to the legal label of partnership A partnership can exist even though the participants have no idea that the legal label applies to them 1 2 Key Characteristics an unincorporated business intended to make a profit which has two or more participants who may be either individuals or entities each of whom bring something to the party such as efforts ideas money property or some combination each of whom co owns the business each of whom has a right to co manage the business and each of whom shares in the profits of the business 1 3 Formation A general partnership is easy to form There are no required formalities The court may characterize an association as a partnership even though the partners did not so characterize themselves 1 4 Partnership Types Partnership at will each partner has the right to cause the partnership to come to an end at any time and without having to state or have cause Partnership for a term the partnership comes to an end at the end of the time period specified in the partners agreement Partnership for a particular undertaking the partnership comes to an end when the particular task or goal specified in the partners agreement has been accomplished 法学专业选修课程教学大纲 404 1 5 Advantages and Disadvantages Advantages an infinitely more flexible organizational structure no double taxation Disadvantages unlimited liability lack of central management control 2 Rules of UPA and RUPA 2 1 UPA and RUPA The Uniform Partnership Act UPA promulgated in 1914 was the backbone of partnership law for almost all of the twentieth century The revised Uniform Partnership Act RUPA promulgated in 1994 is in many ways a major improvement over the UPA and is far more detailed and longer than the UPA 2 2 The Nature of Partnership Aggregate v Entity UPA largely adopted a view of the partnership as an aggregation of individuals and thus the partnership technically continues only so long as this same aggregate of individuals continues to operate the business RUPA treats the partnership as a separate entity and allows the partnership to continue following the death or dissociation of a partner 2 3 Default Rules and Mandatory Rules 3 Partners Personal Liability for the Partnership s Debts All partners are personally liable for all debts and other obligations of the partnership This liability results merely from the status of partner and is automatic strict and vicarious 美国公司法 405 第 1 课次 总 7 课次 教学目的 介绍在合伙中代理理论的表现和应用 合伙内部治理 合伙人在合伙中所享有的财产性权利 难点 The power to bind the partnership 结合前面所学的代理的理论来学习应用 4 The Power to Bind the Partnership 4 1 Binding the Partnership in Contract Every partner is an agent of the partnership for the purpose of its business and the act of every partner for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership unless the partner so acting has in fact no authority to act for the partnership in the particular matter and the person with whom he is dealing has knowledge of the fact that he has no such authority 4 2 Binding the Partnership in Tort W here by an wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his co partners loss or injury is caused to any person or any penalty incurred the partnership is liable therefore to the same extent as the partner so acting or omitting to act 5 Partnership Governance All partners have equal rights in the management and conduct of the partnership business No person can become a member of a partnership without the consent of all the partners Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners 6 Partners Property Right 6 1 Partnership Property Partnerships acquire ownership of property either by accepting contributions or by purchase 6 2 Partner s Interest Partner s interest consists of a right to share in the profits of the partnership and the right to receive when the partnership ends the value of any property contributed to the partnership 6 3 Partner s Management Rights The right to use the assets of the partnership in furtherance of the partnership s business and the right to participate in the management of the partnership 法学专业选修课程教学大纲 406 第 2 课次 总 8 课次 教学目的 介绍在合伙中合伙人的 fiduciary duties 以及合伙的 dissociation 和 dissolution 难点 Fiduciary duties duty of care and duty of loyalty 7 Fiduciary Duties 7 1 Partner Accountable as a Fiduciary 7 2 Duty of Care A partner s duty of care to the partnership and the other partners in the conduct and winding up of the partnership business is limited to refraining from engaging in grossly negligent or reckless conduct intentional misconduct or a knowing violation of law Partners have a duty to avoid gross negligence and willful misconduct But they are not liable for ordinary mistakes in judgment 7 3 Duty of Loyalty In general a partner may not profit at the expense either direct or indirect of the partnership In particular without the consent of fellow partners a partner is prohibited from competing with the partnership taking business opportunities form which the partnership might have benefited or that the partnership might have needed using partnership property for personal gain engaging in conflict of interest transactions 8 Dissociation and Dissolution 8 1 Definition Dissociation the separation of a partner from the partnership Dissolution the point at which a partnership stops functioning as a forward looking enterprise and begins to wind up its business 美国公司法 407 第 1 课次 总 9 课次 教学目的 介绍几种特殊的合伙 limited partnerships limited liability partnership limited liability limited partnership 另外介绍 limited liability companies 难点 每种组织形式的不同特点 9 Limited Partnerships 9 1 Definition A limited partnership is an entity organized under the auspices of a state statute and structured by that statute to allow one or more managing owners general partners to run an enterprise built on money and other property contributed by those owners and one or more passive owners limited partners 9 2 Characteristics Goal limited liability avoidance of double taxation Formation must file a certificate of limited partnership in the office of the secretary of state Two tiers of partners general partner unlimited liability limited partner limited liability limited management power Liability A limited partner is not liable as a general partner unless he takes part in the control of the business 10 Limited Liability Partnership It is a general partnership in which all the partners are exempt from liability for some or all of certain kinds of debts or obligations of the partnership Formation must file a registration statement 11 Limited Liability Limited Partnership It is a limited partnership General partners in an LLLP enjoy the limited liability of general partners in a LLP Formation must register 12 Limited Liability Companies 12 1 What is LLC The essence of an LLC is the partnership tax status with corporate like limited liability Formation must file an articles of organization with a state agency Control member managed or manager managed 法学专业选修课程教学大纲 408 小结 Partnership 作为 the three forms of ownership 中的一种 和其他两种相比有很多不同特点 尤 其是和 corporations 相比较 美国公司法 409 第 2 课次 总 10 课次 教学目的 在介绍公司成立问题之前先介绍什么是公司 除了公司还有其他哪些商业组织类型可以选 择 选择商业组织形式的核心问题是什么 为什么要选择公司 难点 各个商业组织形式的优缺点 理解对税收制度的考虑在商业组织形式选择中的重要意义 Incorporate and Defective Corporations 1 Corporations 1 1 A Creature of Law Definition an association of shareholders or even a single shareholder created under law and regarded as an artificial person or artificial entity independent of the shareholders by courts 1 2 Advantages Limited liability for all participants Centralized management Ownership interests tied to residual earnings and assets Transferability of ownerships interests Separate perpetual existence 1 3 Disadvantages o