商事組織法chapter2ppt課件

1、Chapter Two Law of Business Organizations商事組織法Warm-up Questions:1. How many forms of business organizations do you know?2.If you want to start a business organization,which form would you choose?Why?Topics to be discussed2.1 Introduction2.2. Partnership Law2.3 Law of Corporations2.4 Foreign Investme

2、nt Enterprises in ChinaKey TermsSole proprietorship: 個人獨資企業(yè)Partnership: 合伙企業(yè)Limited partnership: 有限合伙L(fēng)imited liability partnership: 有限責(zé)任合伙L(fēng)imited Liability CompanyLLC: 有限責(zé)任公司Incorporated company(Inc.): 股份No-liability company: 無限責(zé)任公司Joint venture: 合資企業(yè)Legal Person: 法人Joint and several liabilities連帶責(zé)任

3、 Several liability 個人責(zé)任Memorandum of association/articles of incorporation: 公司章程By-laws: 附那么，內(nèi)部細那么Board of directors: 董事會Board of shareholders: 股東會Debt security: 債券Force majeure: 不可抗力Insolvent liquidation: 破產(chǎn)清算Jurisdiction: 司法權(quán)，裁判權(quán)，管轄權(quán)2.1 IntroductionBusiness organization(商事組織), also called business

4、 enterprise, refers to an entity formed for the purpose of carrying on commercial enterprise.Business organizations usually take one of the following three forms:1.sole proprietorship2.partnership3panyIf people want to commence a business, therere a number of factors have to be considered, including

5、：1) The purpose of the business. 2) Its duration. 3) The cost. 4) The taxation. 5) The setting up procedure. 6) The type of assets required.7) Who should be entitled to participate in income distributions. 8) Who should be entitled to participate in capital distributions. 9) Whether the members inte

6、rest should be transferable. 10) The region of the business organization. 11) The function of the member of the business organization.Sole proprietorshipsole proprietorshipan organizaition owned, and usually managed, by one natural person由一名出資者單獨出資并從事運營管理的企業(yè)。earns all the firms profits & resposible

7、for lossunlimited liability(無限債償責(zé)任)most community businesses are owned by sole proprietors,e.g. hair stylist, lawyers, doctors,dentists,etc.Advantages:its easy to set uplittle money is neededhave a great incentive to work hardlower profits tax rateDisadvantages:unlimited liability-not a legal entity

8、(獨立法人)little time to restlack of capital sourcescompetition from large companies2.2 Partnership Law1. Definition and Nature of PartnershipPartnership is the relation which subsists between persons carrying on a business in common with view of profit. 合伙企業(yè)，是指由兩個或兩個以上的合伙人訂立合伙協(xié)議，為運營共同事業(yè)，共同出資、合伙運營、共享收益、

9、共擔(dān)分險的營利性組織。The requirements of a partnership are: two or more persons; carrying out a business; as co-owners; for profits.2. Advantages and Disadvantages of a PartnershipThe advantages of a partnership can be summarized as below:(1) Informality and inexpensiveness in setting up. (2) Flexibility. (3)

10、 Tax. The disadvantages of a partnership are as below: (1) Liability. (2) Transfer of interest is not as easy as the transfer of share in the company. (3) Unanimous decisions. (4) Agency.3. Important preliminaries(1) Formalities/procedure1) A partnership agreement lasting for more than one year must

11、 be evidenced in writing.2) Limitations on a partnership.3) Anti-discrimination and equal opportunity legislation apply to partnership.(2) Partnership ContractPartnership contract is an agreement between partners concerning to the firm business. The following contents are often included in a partner

12、ship contract:1) The name of the partnership and partners, and the address of them. 2) The nature of the partnership and operation scope of it.3) The duration.4) Method and number of capital contributing.5) Profit distribution and loss taken.6) Management.7) Incoming, outgoing and dissolution.8) Lia

13、bility for breach of the contract.9) Other content.(3) Professional Restrictions(4) Partner by EstoppelTwo persons may not be partners, yet in the eyes of a third person they may appear to be partners. If the third person deals with one of the apparent partners, he may be harmed and seek to recover

14、damages from both of the apparent partners. 表見合伙，是指某人雖然不是某現(xiàn)存合伙的真正合伙人，但他以言辭、文字或行為闡明他是該合伙的合伙人，或贊同他人以言辭、文字或行為闡明該某人為某現(xiàn)存合伙的合伙人,從而使第三人置信這種表述并對該合伙施以信譽，那么在該某人與現(xiàn)存合伙之間產(chǎn)生表見合伙，又稱“不可撤銷的合伙，該某人為表見合伙人，他該當(dāng)對由此產(chǎn)生的合伙債務(wù)承當(dāng)合伙人的責(zé)任。For example, David thinks that Wilson, a wealthy person, is a partner of Porter, a poor perso

15、n. David decides to do business with Porter. If Porter does not perform as agreed, and David can prove that Wilson misled him to believe that Wilson and Porter were partners, he may sue Wilson for damages suffered when Porter failed to perform as agreed.4. Rights of a Partner(1) Management of the Pa

16、rtnership(2) Right to Share in the Profits and Surplus(3) Right to Inspect Related Materials(4) Property Rights of a Partner(5) Right to Gain Compensation5. Duties and Liabilities of a Partner(1) Duties1) Fiduciary duty.This kind of duty includes each partners following activities:a. Refraining from

17、 business in competition with the partnership, engaging in self-dealing, or usurping partnership opportunities unless copartners consent.b. Holding the duties of loyalty and care.c. Dealing with copartners in good faith.2) Duty of partners to render information. (2) LiabilitiesLiabilities of partner

18、s in contract and to the Third Party【case】A partner had been prohibited by partnership agreement from concluding contracts on the behalf of the partnership enterprise; but a third party did not know this and entered into a contract relevant to the partnership enterprise with the said partner;then wa

19、s such a contract enforceable to the partnership enterprise?The right limit to certain partner cannot resist the bona fide third party(好心第三人)7. Dissolution 解散Dissolution is the ending or the breaking up of a partnership. A partnership may be dissolved as follows:(1) By retirement of a partner where

20、the firm is of no fixed duration.(2) By completion of the agreed period or venture.(3) By death or bankruptcy.(4) By unlawfully carrying out the business.(5) By order of a court.8. Winding Up清算Winding up refers to the procedure followed by distributing or liquidating any remaining partnership assets

21、 after dissolution. Generally, creditors are paid first. Then the capital contribution is returned to the partners. After this if there are excess funds the liquidator will distribute them in proportion to their respective shares in the profits.9. Limited Partnership(L.P.有限合伙)A limited partnership i

22、s a form of partnership similar to a general partnership(普通合伙), except for one or more general partners普通合伙人, and there are one or more limited partners有限合伙人. A limited partnership has the following characteristics:(1) The number scope of a limited partnership is from 2 to 50 partners, and there is

23、at least one general partner.(2) The general partners have management control, representing the partnership and have joint and several liabilities for the debts of it. While the limited partners cannot participate in the management and control of the partnerships business, their liability for the de

24、bts of the partnership is the capital contributions to the partnership.(3) As a whole a limited partnership should have unlimited liabilities for its debts, because theres at least one general partner.(4) A limited partner can contribute money, material property, intellectual property rights, land-u

25、se right, and so on to the partnership, but he or she cannot contribute labor to it.(5) The death or bankruptcy of a limited partner cannot certainly affect the partnerships existence.(6) A limited partner and a general partner can transfer to each other under certain condition.10. Limited Liability

26、 PartnershipL.L.P.有限責(zé)任合伙A limited liability partnership is made up of two or more than two partners, approved and registered by the competent authority, and it is liable for its debts with the partnership property. Each partner has unlimited liabilities for his own misconduct, and other copartners h

27、ave limited liabilities for it, but the extent of the liability is his profit in the partnership. For the liability that caused by ones neglectful conduct, all the partners should be liable for it. 我國第57條：一個合伙人或者數(shù)個合伙人在執(zhí)業(yè)活動中因故意或者艱苦過失呵斥合伙企業(yè)債務(wù)的，該當(dāng)承當(dāng)無限責(zé)任或者無限連帶責(zé)任，其他合伙人以其在合伙企業(yè)中的財富份額為限承當(dāng)責(zé)任。合伙人在執(zhí)業(yè)活動中非因故意或艱苦

28、過失呵斥的合伙企業(yè)債務(wù)，有全體合伙人承當(dāng)無限連帶責(zé)任。A limited liability partnership has elements of partnerships and corporations, but unlike shareholders, the partners have the right to manage the business directly.Comparing it with the general partnership, the essential differences are:(1) Scope of a partners liability sh

29、ield. (2) Annual filing requirement.Case Study Three registered accountants Zhang, Wang and Li set up a public accounting firm jointly with the name Special General Partnership, supplying the services of auditing and certification of registered capital. During the auditing affairs in 2021, there hap

30、pened the following matters: 1) When Zhang was auditing A Public Companys accounting report, he left out part of the sales revenues with gross negligence. The court held that the public accounting firm should be responsible for the loss of A. But Zhang thought that he didnt do this on purpose, thus

31、all the partners should take joint liability for the loss.2) When Wang was certificating the registered capital of B company, he made a mistake with negligence, and thus led to some economic losses of the creditor of B company. The court held that Wangs negligence did not belong to gross negligence.

32、 Answer the following questions:(1) Was Zhangs allegation right? Why?(2) What should the partners deal with the losses caused by Wang? Please present your reasons.Answers (1) Zhangs allegation was not right. According to the partnership law, when one or more of the partners action leads to some debt

33、s of the partnership deliberately or with gross negligence, they should take unlimited liability or unlimited joint liability, and other partners take limited liability in accordance with their profit proportion in the partnership. In this case, Zhangs action was with gross negligence, so he would t

34、ake unlimited liability, and other partners took limited liability.1) When Zhang was auditing A Public Companys accounting report, he left out part of the sales revenues with gross negligence. The court held that the public accounting firm should be responsible for the loss of A. But Zhang thought t

35、hat he didnt do this on purpose, thus all the partners should take joint liability for the loss.(2) To the losses caused by Wang, all the partners should take unlimited joint liabilities. According to the partnership law, when one or more of the partners action leads to some debts of the partnership

36、 not deliberately or not with gross negligence, all the partners should take unlimited joint liabilities. In this case, Wangs action did not belong to gross negligence, so all the partners should take unlimited liabilities.2.3 Law of Corporations1. Definition and Characteristics of CorporationsIn co

37、mmon usage the word “company means those associated for economic purpose, i.e. to carry on a business for profit, and covers partnership, trusts, clubs, incorporated association and to some extent almost any business operation operating as “the company. “Company is broader than “corporation. Corpora

38、tion refers to as a legal person that is established according to the law of corporation for profit. A corporation has the following characteristics:(1) The establishment of corporation is according to the ordain of law or the permission of the government.(2) The purpose of a corporation is for prof

39、it.(3) A corporation is a seperate legal person.An artificial entityThe simplest and usually the most useful way of viewing a corporation is to consider it a fictitious being or artificial entity independent of the owners or investors. This artificial entity may conduct businesses in its own name mu

40、ch in the same way a real person could.2pany Law of some Countries(1) British Company Law1835 貿(mào)易公司法1844 共同股份法1855 有限責(zé)任法1907 有限責(zé)任合伙法1908 公司合并法1929 公司法1948 (new)新公司法(2) American Company Law1933 規(guī)范商事公司法1969 規(guī)范商事公司法修訂版1984 規(guī)范修訂商事公司法(3) French Company Law1673 商事條例1807 商法典1867 公司法1925 法1940 revised in 198

41、5(4)German Company Law1892 有限責(zé)任公司法1897 德國商法典1937 股份法1965 (new)新股份法(5) Chinese Company Law3. Classifications of Corporations(1) Classification by Liability of Members以成員/投資者的責(zé)任為規(guī)范-大陸法系的分類1) Companies limited by shares. 2) Companies limited by guarantee. 3) A company limited by guarantee with a share

42、capital.4) An unlimited company.5) No-liability company. (2) Classification by Membership-英美法系的分類1) Public/open companies開放式公司. 2) Private/closed companies封鎖式公司.3Parent corporation母公司, subsidiary corporation子公司, 第十三條 第二款公司可以設(shè)立子公司，子公司具有企業(yè)法人資歷，依法獨立承當(dāng)民事責(zé)任。4head office(總公司) and branch/affiliated corpora

43、tion分公司第十三條 公司可以設(shè)立分公司，分公司不具有企業(yè)法人資歷，其民事責(zé)任由公司承當(dāng)。以公司承當(dāng)責(zé)任的信譽根底為規(guī)范的分類：人合公司企業(yè)：無限公司、合伙資合公司：股份人合兼資合公司：有限責(zé)任公司limited liability company(有限責(zé)任公司), stock limited company(股份)有限責(zé)任公司股份有限公司相同點1.都是依法成立的企業(yè)法人；2.股東均負有有限責(zé)任；3.公司均以全部財產(chǎn)對債務(wù)承擔(dān)責(zé)任；4.具有名稱和章程不同點1. 資本不劃分為等額股份；2.出資不一定是貨幣，可以是技術(shù)、土地等；3. 股東人數(shù)2-50人；4.設(shè)立程序簡單；5. 適用于中小型企業(yè)1

44、. 資本劃分為等額股份；2.發(fā)行股票籌資，出資必須是貨幣；3. 股東人數(shù)有最低限，沒有最高限；4.設(shè)立程序復(fù)雜；5. 適用于大中型企業(yè)馬克思說：“假設(shè)必需等待積累去使單個資本增長到能修鐵路的程度，那恐怕今天世界上還沒有鐵路，但是集中經(jīng)過股份公司，轉(zhuǎn)眼之間就把這事辦成了4.Features of Corporation(1) Creation. A corporation may be created only by permission of a government.(2) Legal Status. A corporation is a legal person and a legal e

45、ntity independent of its owners and managers.(3) Powers. A corporation may acquire, hold, and convey property in its own name and it may sue and be sued in its own name.(4) Management. Shareholders elect a board of directors to manage the corporation.(5) Owners Liability. Shareholders have limited l

46、iability.(6) Transferability of Owners Interest. Generally shareholders can transfer their shares freely.(7) Taxation. A corporation pays income taxes on its profits, and when the corporation distribute after-tax profits as dividends, the shareholders pay tax on the dividends.5. Creation/establishme

47、nt of Corporation(公司的設(shè)立) (1) Incorporation Procedure1) Select a name of the company.2) Draw up Memorandum of Association/Articles of Incorporation.3) Certificate of incorporation.4) Appoint the directors.5) Complete and lodge the application form.(2) Name and Registration NumberA name is available i

48、f it doesnt clash with an existing company name, or is not included in the business names registered or has not been declared by the regulations to be unacceptable. In foreign countries, the company is normally required a unique company number. Otherwise the company will face to the tax penalty. The

49、 business number is available for the public searching on the internet.(3) Memorandum of AssociationThe memorandum of association (also called articles of incorporation or the certificate of incorporation) is the primary document, and generally regulates the companys activities with the outside worl

50、d.The by-laws (also called articles of association in some countries) are the secondary document, such as procedures for board meetings and shareholders meeting.(4) TaxCorporations have a double tax. Both corporate profits and shareholder dividends are taxed, but corporate profits are taxed at a low

51、er rate than the rates for individuals.5. Corporate Financing(1) Stocks/SharesShares normally have a nominal or par value, which is the limit of the shareholders liability to contribute to the debts of the company on an insolvent liquidation. Different kinds of shares offer different rights to the s

52、hareholders. A company may issue both ordinary shares and preference shares. The total number of issued shares in a company is said to represent its capital. Shares usually confer the holder a number of rights:1) Voting rights.2) Rights to dividends declared by the company.3) Rights to any return of

53、 capital either upon redemption of the share, or upon the liquidation of the company.4) Preferential rights to participate in future share issues by the company.(2) Debt Securities債券Debt securities, such as bonds or debentures, represent the long term borrowing of money by a company. Interest paymen

54、ts on debt securities are usually fixed on a specified date. Debt securities are very important sources of capital.6. Corporate Management (1) DirectorsA company must have at least a director. The qualifications of directors are provided by the memorandum of association or by-laws that a director mu

55、st be a shareholder or some other qualifications.(2) Directors Duties to Their Company1) Duty to be loyal to the company.For this duty, directors are under:a. Duty of acting in bona fide.b. Duty of exercising powers for proper purpose.c. Duty of retain their discretion.d. Duty to avoid actual or pot

56、ential conflict of duty and interest:Transactions with the company.Use of corporate property, opportunity, or information.Competing with the company.2duty of careThe understanding of the “skill.Diligence.Reliance others.3) The “business judgment rule.This rule is provided in the US company law. Gene

57、rally the duties of the directors are several and owed to the company itself, not to any other entity. But in future there are some changes about it.In the UK, the Companies Act 2006 requires a director of a UK company “to promote the success of the company for the benefit of its members as a whole,

58、 setting out six factors to which a director must have regards in fulfilling the duty to promote success. These are:a. The likely consequences of any decision in the long term.b. The interests of the companys employees.c. The need to foster the companys business relationship with suppliers, customer

59、s and others.d. The impact of the companys operations on the community and the environment.e. The desirability of the company maintaining a reputation for high standards of business conduct.f. The need to act fairly as between members of a company.(3) Remedies for Breach of DutyIn most jurisdictions

60、, the law provides for a variety of remedies in the event of a breach by the directors of their duties:1) Injunction(禁令) or declaration.2) Damages (損害賠償金)or compensation.3) Restoration(返還/恢復(fù)) of the companys property.4) Return of profits.(4) Members/Shareholders Rights1) Voting rights.2) Rights to o