精華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 （公司資本的募集和維持） 5 Corporate Governance and Corporate Structure 6 Shareholders meeting ( membership and control) 7 Board of Directors and Officers 8 Supervisory board (監(jiān)事會(huì)) 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(內(nèi)幕交易與其他證券欺詐） 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：案例與解析，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 大陸法系 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 (西漢到魏晉南北朝） (3) from Tang to Qing （唐朝到清朝前期） (4) Qing to Minguo (清后期到民國(guó)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. （連帶責(zé)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 劉立、程非、張武三人合伙于二年四月創(chuàng)辦生利紙品廠，各出資10萬(wàn)元，二一年五月張武退伙另圖發(fā)展，收回了自己的全部合伙投入費(fèi)及應(yīng)得的利潤(rùn)。二二年七月債權(quán)人何強(qiáng)向張武追討二年七月的欠款2.625萬(wàn)元（含二年的利息5%），張武以自己早已退伙為由拒絕歸還，經(jīng)多次協(xié)商未果，向人民法院提起訴訟，要求張武按協(xié)議歸還欠款及利息2.625萬(wàn)元。,審理：人民法院在審理中查明，二年四月，劉立、程非、張武自愿合伙創(chuàng)辦生利紙品廠，各出資10萬(wàn)元，利益共享，風(fēng)險(xiǎn)共擔(dān)，有合伙協(xié)議為證。 二一年五月張武退伙，抽回全部合伙投入費(fèi)10萬(wàn)元及收益分配1.75萬(wàn)元，未對(duì)債務(wù)承擔(dān)進(jìn)行分割。 二年七月，三人共同決定向債權(quán)人何強(qiáng)借款7.5萬(wàn)元，兩年期利息5%，到期一次償還7.875萬(wàn)元，由各人承擔(dān)三分之一，有借款協(xié)議為證； 劉立、程非已按協(xié)議歸還何強(qiáng)借款5.25萬(wàn)元。 判決：張武在判決生效之日起十日內(nèi)一次性歸還債權(quán)人何強(qiáng)借款2.625萬(wàn)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，山東省東營(yíng)某汽車修理有限公司以資金周轉(zhuǎn)困難為由，向王某借款20萬(wàn)元作為生產(chǎn)的流動(dòng)資金。雙方約定年利率為7，借款期限為1年，到期連本帶息歸還。但到約定的時(shí)間，該公司未向王某付款。汽車修理有限責(zé)任公司是由審理石油管理局鉆井某公司、香港某公司出資組成的合資公司。見還款無望，王某將汽車修理有限公司、鉆井公司、香港公司訴至法院。 Questions: 1. 石油管理局鉆井公司、香港公司和汽車修理公司是什么關(guān)系？ 2. 法院該判誰(shuí)償還王某的借款？,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. (有限責(zé)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（發(fā)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，某市一有限責(zé)任公司開張，登記為“大洋時(shí)裝有限責(zé)任公司”（甲公司），從事服裝生產(chǎn)。2000年底，在離甲公司500米處又有另一家公司開業(yè)，從事服裝銷售，登記名稱為“大洋服裝商貿(mào)有限公司”（乙公司）。兩家公司名稱類似，顧客經(jīng)?；煜?。為此，甲公司向法院提起訴訟，稱乙侵犯其名稱權(quán)。乙公司主張兩家名稱并非完全相同，行業(yè)也不同。甲公司為服裝生產(chǎn)加工產(chǎn)業(yè)，乙公司為商品零售產(chǎn)業(yè)，否認(rèn)自己侵權(quán)。 Questions 乙公司是否構(gòu)成對(duì)甲公司名稱權(quán)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（公司大綱）,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 (越權(quán)無效原則） 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，深圳某外貿(mào)公司向原告表示能介紹出口到俄羅斯的業(yè)務(wù)，但要求原告必須辦理GOST認(rèn)證，同時(shí)推薦被告為原告辦理。此前原告的產(chǎn)品從未出口到俄羅斯，但俄羅斯廣闊的市場(chǎng)需求對(duì)原告極具誘惑，為了能作成這筆生意，原告和被告就GOST認(rèn)證一事于2003年6月24日簽訂合同，原告為委托方，被告為認(rèn)證方，認(rèn)證費(fèi)用為58000元。該合同是被告提供的格式合同，根據(jù)合同條款，作為認(rèn)證方的被告應(yīng)做到：1、嚴(yán)格按照俄羅斯產(chǎn)品質(zhì)量認(rèn)證方面的法規(guī)和國(guó)際準(zhǔn)則，審查原告的產(chǎn)品質(zhì)量是否符合俄羅斯檢測(cè)標(biāo)準(zhǔn)；2、在收到原告交付的費(fèi)用后，及時(shí)組織實(shí)施有關(guān)的產(chǎn)品認(rèn)證活動(dòng)；3、被告在作出認(rèn)證評(píng)定結(jié)論后，應(yīng)及時(shí)辦理是否批準(zhǔn)原告取得認(rèn)證注冊(cè)資格的手續(xù)。合同簽訂后，原告向被告支付了58000元認(rèn)證費(fèi)用，可不久后的7月12日，深圳特區(qū)報(bào)B1版以很大的篇幅報(bào)道了被告進(jìn)行“黑認(rèn)證”并與其他外貿(mào)公司涉嫌唱“雙簧”騙取錢財(cái)被國(guó)家認(rèn)鑒委等部門查處。看到這則報(bào)道后，原告十分震驚，方知被告根本不具備認(rèn)證的主體資格，其營(yíng)業(yè)范圍沒有認(rèn)證業(yè)務(wù)。知道上當(dāng)后，原告急忙向法院提起訴訟，要求被告退回58000元的認(rèn)證費(fèi)用。,被告的營(yíng)業(yè)執(zhí)照上載明的經(jīng)營(yíng)范圍是：舉辦實(shí)業(yè)（具體項(xiàng)目另行申報(bào)）；國(guó)內(nèi)商業(yè)、物資供銷業(yè)（不含專營(yíng)、專控、專賣商品）；展覽設(shè)計(jì)、信息咨詢、企業(yè)形象策劃（不含限制項(xiàng)目）；進(jìn)出口業(yè)務(wù)（領(lǐng)取經(jīng)營(yíng)許可證后方可經(jīng)營(yíng)）。進(jìn)行GOST認(rèn)證并不在其經(jīng)營(yíng)范圍之內(nèi)，說明被告不具有認(rèn)證機(jī)構(gòu)的主體資格,法院經(jīng)審理后認(rèn)為，原被告雙方于2003年6月23日簽訂的合同主要內(nèi)容是被告為原告辦理GOST認(rèn)證，該合同是認(rèn)證合同。根據(jù)產(chǎn)品質(zhì)量認(rèn)證機(jī)構(gòu)認(rèn)可管理辦法的規(guī)定，凡申請(qǐng)開展產(chǎn)品質(zhì)量認(rèn)證工作的機(jī)構(gòu)，必須依據(jù)該辦法辦理手續(xù)，申請(qǐng)國(guó)家技術(shù)監(jiān)督局批準(zhǔn)許可并取得產(chǎn)品質(zhì)量機(jī)構(gòu)認(rèn)可證書，方可實(shí)施產(chǎn)品質(zhì)量認(rèn)證工作。因此認(rèn)證活動(dòng)是特許經(jīng)營(yíng)的，經(jīng)營(yíng)者需經(jīng)過行政主管部門嚴(yán)格審批，取得產(chǎn)品質(zhì)量機(jī)構(gòu)認(rèn)可證書并在工商登記經(jīng)營(yíng)范圍內(nèi)注明，方可從事認(rèn)證活動(dòng)。而被告工商登記的營(yíng)業(yè)執(zhí)照上所載明的經(jīng)營(yíng)范圍根本沒有登記認(rèn)證業(yè)務(wù)，故被告不具有認(rèn)證資格，其認(rèn)證活動(dòng)超出經(jīng)營(yíng)范圍，并違反了法律法規(guī)的強(qiáng)制性規(guī)定，依據(jù)合同法極其司法解釋的規(guī)定，雙方所簽合同為無效合同，原告因履行合同而支付的認(rèn)證費(fèi)用58000元，被告應(yīng)當(dāng)退回給原告。,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 瑕疵設(shè)立,7.1 the reasons for defective incorporation a. the promoters have no civil capacity to form a corp