Unit 2 formation of corporation.ppt - Unit 2 formation of...

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Unformatted text preview: Unit 2 formation of corporation 1. In general The formation of corporation is the process that the promoters try to meet all the requirements in order to obtain the legal personality. 2. 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 3. Promoters (发起人) 3.1 Definition A person who takes the initiative in developing and organizing a new business venture. 3.2 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 The various functions of a promoter Discovery of a business idea The first stage in company promotion is the conception of a new idea. It is the promoter who conceives the idea of setting up a business. If makes an assessment of the viability of a particular business. Detailed investigation Promoters undertakes a detailed investigation of the viability, profitability and future prospects of the growth of the proposed activity. To assist then in this venture, they seek the help of specialists such as chartered Accountants, Cost Accountants, Engineers. Organisations engaged in market research and other specialised agencies. Specialists are in a position to make an objective analysis of their own areas which may help the promoters. Decisions have to be taken regarding the size, location, layout, man power etc. Assembling the factors of production - If the proposed endeavour gives promise o f success and the promoter is willing to und ertake the risk of forming the business, step s must be taken to assemble various factors of production viz, land, labour, capital and managerial personnel. Assembly of resource s involves making contracts for the purchas e of material, land, machinery, etc. Entering into preliminary contracts - The promoter enters into contracts with dif ferent parties before the registration of the c ompany. After registration, the company ap proves these contracts. The certificate of incorporation and its effect From the date when a company’s incorpora tion form and copies of its memorandum an d article, certified to be true copies of a foun der member, are registered, the company is i ncorporated. The registrar will issue a certifi cate certifying that the company is incorpor ated and, in the case of company whose me mbers have limited liability, that the compa ny is limited. Restrictions on the choice of name Normally, no company will be registered by a name which is the name as: a. a name appearing in the Registrar’s index of company name; b. that of a body corporate established under an ordinance c. the type and case of letters, accents, spaces between letters and punctution marks. 企业名称登记管理规定 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) 4.1 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 corporation's 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, it’s 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 corporation’s 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, it’s 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 3.1 Contracts executed in the name of the promoter If the promoter enters into contract in his or her own name with out referring to the corporation with the thought of subsequently as signing the contract to the corporation, personal liability on the par t of the promoter clearly exists. The subsequent assignment of the contract to the corporation does not release the promoter of person al liability unless the creditor agrees to release the promoter and lo ok only to the corporation for performance. The release of a party t o 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 corporation b. the incorporation does not satisfy the requirements. 7.2 the effects of defective corporation a. De facto corporation ( 事实上的公司) Failure to achieve the statutory requirements for incorporation does not lead to imposition of personal liability on the shareholders if the court believes that de facto corporation status had been achieved. The requirements for recognition of de facto status are (1) existence of a statute under which the corporation might have been validly incorporated, (2) a good faith attempt at compliance, and (3) some use or exercise of corporate status. b. Compulsory dissolution (强制解散) If the establishment of the corporation is for some illegal purpose and the incorporation procedure is not complete, the corporation will be compulsorily dissolved . Example: cantor v. Sunshine Greenery Inc., Plaintiffs leased one property to Sunshine Greenery, inc. The lease was signed by the president of Sunshine, Brunetti. Plaintiffs knew the corporation and not Brunetti was to be liable on the contract. Sunshine’s articles of incorporation were mailed to the Secretary of State on December 3. The lease was not signed until December 16, but for some unexplained reason the articles of incorporation were not officially filed until December 18. The Landlord sought to hold Brunetti personally liable on the contract on grounds that he could not have acted in a representative capacity on behalf of an entity that did not exist. The landlord failed, as the court found de facto existence of Sunshine. The court stated: To deny such (corporate) existence because of a mere technicality caused by administrative delay in filing runs counter to the purpose of the de facto concept and would accomplish an unjust and inequitable result in favor of plaintiffs contrary to their own expectations. 河北石家庄市某区委书记刘某计划利用其受贿得来的 30 万元赃款开设一家公司,将赃款投入公司以转移注意力 ,但又怕他人问起款项的来历,因此,刘某将其不满 18 岁 的儿子安排成为公司的另一股东,隐瞒其子的实际年龄, 蒙蔽过关,完成了公司登记,取得了营业执照。公司设立 后,刘某对外宣称公司系其外甥所有并实际由其外甥代刘 某进行实际经营。其间,公司与东南公司签订货物买卖合 同,东南公司如期发货,但尚未收到货款。2001年 8 月,刘某受贿一事东窗事发,被检察机关立案审查,其外 甥携带公司款 50 万元逃逸。东南公司遂于2001年 9 月 2日诉至某区法院要求公司支付货款,承担违约责任。 问题: 1. 刘某成立的公司是否符合法律规定要求,哪些地方 不符合? 2. 东南公司的债权应该由谁来偿还? ...
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