商法 Chapter

1、PowerPoint to accompanyPART 6Chapter 27Companies and Incorporated AssociationsCopyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eChapter objectivesOn completion of this chapter, you should be able to: define the essential

2、 characteristics of a corporation outline the different classifications of a corporation outline the legal requirements for the management of a corporation define the essential characteristics of an incorporated associationCopyright 2011 Pearson Australia (a division of Pearson Australia Group Pty L

3、td) 9781442525276/Gibson & Fraser/Business Law/5eCompanies Companies in Australia are regulated by the Corporations Act 2001 (Cth). Under the Corporations Act a company: Is incorporated with limited liability; Has a perpetual existence; Has the right to sue and be sued; Has the right to hold pro

4、perty.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eCompaniesSeparate legal entity Separate legal entity of a company is the fundamental characteristic that makes it distinct from other trading entities. It means the

5、 company has its own legal existence and therefore rights and obligations completely separate and distinct from the people involved in it:Salomon v Salomon & Co Ltd 1897Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law

6、/5eCompaniesLifting the veil of incorporation The concept of separate legal entity is often referred to as the veil of incorporation. The shareholders and the directors are completely separate and distinct from the company as though a veil (or shield) hides and separates them.Copyright 2011 Pearson

7、Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eCompaniesLifting the veil of incorporation In exceptional cases, Courts will lift the corporate veil of incorporation and give rights and obligations to parties, such as where there is fraud:Gr

8、een v Bestobell Industries Pty Ltd 1982 and Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1987)Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eNature of companiesCopyright 2011 Pearson Australia (a division of Pearso

9、n Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eClassification of companiesClassification of companies by liabilityCopyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eClassification by liability

10、Liability of the members is limited to the extent determined by the type of company Companies limited by shares: Liability of members limited to amount unpaid on shares; May be public or proprietary. Companies limited by guarantee: Liability of members is limited to the amount which each undertakes

11、to pay to the company in the event of it being wound up.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eClassification by liabilityLiability of the members is limited to the extent determined by the type of company Unl

12、imited liability companies: Members have unlimited liability to the company in the event of it being wound up. No-liability companies: Members do not incur liability on any unpaid portion of their shares.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/G

13、ibson & Fraser/Business Law/5ePublic or proprietary?Classification of companies by membershipCopyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5ePublic or proprietary companies Companies may be classified according to

14、their membership into: Proprietary companies (between one and 50 members large propriety companies more than 50 employees); and Public companies (any companies other than proprietary companies).Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson &

15、; Fraser/Business Law/5ePublic or proprietary companies A large proprietary company is one that satisfies any two of the following tests: Gross operating revenue of more than $25m for the financial year; Gross assets of more than $12.5m at the end of the financial year; 50 or more full (or part-time

16、 equivalent) employees at the end of the financial year.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eIncorporation The Memorandum and Articles of Association have been replaced by replaceable rules which now govern

17、the internal management of the company. A company can adopt a constitution displacing some or all of the replaceable rules.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eFund raising A company obtains its capital from

18、 two sources: Share capital Loan capital For public companies, a disclosure document, such as a prospectus, is an invitation to members of the public to subscribe for shares in a company.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Frase

19、r/Business Law/5eShare capital Shares are the stated proportions into which the capital of a company is divided and are choses in action because they are a personal property of an intangible nature. A company may issue different classes of shares with different rights attached to them. They no longe

20、r have a par value.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eShare capital The owner of a share is entitled to: A share of the profits of the company (a dividend); Take part in the management of the company; and

21、A proportionate return of capital on winding up.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eShare capital Because shares are a chose in action, they can be transferred when the shareholder wishes, although propriet

22、ary companies must restrict the right to transfer under their constitution.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eLoan capital A company can raise capital by borrowing. One method is by the issue of a debentur

23、e which is a document whereby the company acknowledges a debt. A debenture holder is a creditor of the company, not a member and cannot participate in the affairs of the company. Debenture holders have special rights over and above shareholders.Copyright 2011 Pearson Australia (a division of Pearson

24、 Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eLoan capital Security for a debenture holder is usually in the form of: A fixed charge which is attached to specific assets; or A floating charge where the company grants security over all its assets and the holder has no leg

25、al or equitable interest in the assets while the charge is floating. In the event of default (crystallisation) it attaches to the assets of the company.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eManagement The Con

26、stitution or Replaceable Rules provide that the power of management vests in the board of directors unless the contrary is stated in the companys constitution. Directors duties arise from the nature of their fiduciary relationship with the company and consist of common law and statutory duties.Copyr

27、ight 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eManagementCommon law duties: Contractual: exercise an implied duty of care in the performance of their duties. Equitable: a duty to with reasonable care, skill and diligence,

28、and a duty of loyalty covering good faith, proper purpose, the exercise of discretion and avoiding conflicts of interest. Tortious: directors owe a duty of care and diligence to the company.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fr

29、aser/Business Law/5eManagementStatutory duties: Duties of directors (and all employees) under the Corporations Act include: To act in good faith; Exercise reasonable care and diligence; Not make improper use of the companys information; and Not make improper use of their position as directors.Copyri

30、ght 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eBusiness judgement rule Section 180(1) imposes an obligation on directors to exercise care and diligence when exercising their decision-making responsibilities. Business judgem

31、ent means any decision to take, or not take, action in respect of a matter relevant to the business operations of the corporation s 180(3).Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eSection 588G dutyDuty to preven

32、t insolvent trading Section 588G of the Corporations Act imposes a duty on the director of a company to prevent insolvent trading by the company. A director contravenes the section if, when the company incurs the debt, there are reasonable grounds for suspecting that the company is, or would become,

33、 insolvent.Copyright 2011 Pearson Australia (a division of Pearson Australia Group Pty Ltd) 9781442525276/Gibson & Fraser/Business Law/5eCompanies in financial difficulty Companies in financial difficulties should be placed in: Administration Liquidation ReceivershipCopyright 2011 Pearson Australia (a division of P