[法学]公司法讲义英文版.doc

THE LAW OF CORPORATIONS (For teaching purpose only)by Zhaibaohong2010. 08. 26OUTLINE Chapter1 Concept of corporation 2 Section 1 Corporation and other forms 2 Section 2 Limited liability companies 7 Section 3 Piercing the corporate veil 12Chapter 2 Establishment of corporation 15Chapter 3 The Corporate Structure 20 Section 1 Traditional corporate structure 20 Section 2 The structure of companies limited by shares 23Section 3 Code of Corporate Governance for Listed Companies 23Chapter 4 The duty of care and loyalty 33 Section 1 Duty of care 33 Section 2 The business judgment rule 34 Section 3 Duty of loyalty 36Chapter 5 Merger and consolidation 39Chapter 6 Dividend policy, termination 41 Section 1 Concept, forms of dividend 41 Section 2 Dividend in China 42 Section 3 Termination 43Consultative Materials 1. ROBERT W. HAMILTON, THE LAW OF CORPORATIONS (4th), WEST PUBLISHING CO. 1996. 2. BLACKS LAW OF DISCTIONARY(7th), WEST GROUP, 1999. 3. Merriam-Websters Dictionary of Law, Merriam-Webster, Incorporated, 1996. 4. DELAWARE GENERAL CORPORATION LAW. MAINE BUSINESS CORPORATION ACT. TEXAS BUSINESS CORPORATION ACT (GENERAL). 5. COMPANY LAW OF CHINA, INDEPENDENT DIRECTORS RULE OF CHINA, CODE OF CORPROATE GOVERNNACE FOR LISTED COMPANIES, AND OTHER CHINESE LAWS, REGULATIONS. Chapter 1 The Concept of CorporationSection 1 Corporation and other business forms1. Partnership vs (versus). corporationChoosing a form （种类）of organization（组织） usually comes down to choosing between a partnership and a corporation（合伙企业和公司）, the third form of business is proprietorship（独资企业）. A corporation is an entity (usually a business) having authority under law (法定权利) to act as a single person distinct from (separate from) the shareholders （股东）who own it and having rights to issue stock （发行股份）and exist indefinitely; or a group of persons established in accordance with legal rules into a legal or juristic person （法人）that has legal personality distinct from the natural persons（自然人） who make it up, exists indefinitely apart from them, and has the legal powers that its constitution （章程）gives it. A partnership is an association of two or more persons or entities that conduct a business for profit as co-owners. In American, except in civil law （民法） as practiced in Louisiana, where a partnership, like a corporation, is considered as a legal person, a partnership is traditionally viewed as an association of individuals rather than as an entity with a separate and independent existence. A partnership cannot exist beyond the lives of the partners. （合伙人死后，合伙企业不能继续存在。）The partners are taxed as individuals and are personally liable for torts and contractual obligations.（侵权和合同责任） Each partner is viewed as the others agent （代理人） and, traditionally, is jointly and severally liable （连带责任）for the tortious acts （侵权行为）of any one of the partners. A proprietorship is a business entity consisting of a single owner, also termed as sole proprietorship, which is a business owned and controlled by one person who is solely liable for its obligations. A proprietorship is essentially a one person partnership. 2. Partnership. A partnership is the simplest form of organization involving more than one person. It is formed merely by agreement of the partners, who share the right to manage and the right to participate in the profit. （管理权和利润分配权）Profit participate may by allocated by agreement;（协议或者合同） in the absence of agreement each partner equally in profits. （平等分配利润）Each partner is also personally liable on partnership obligations; losses （损失）are shared by the partners, and if the losses exceed the accumulated profits, each partner must make a further contribution to the partnership on dissolution to cover the losses, including capital losses of other partners. In the absence of agreement, each partner shares equally in the losses. Each partner is also an agent of the partnership for purposes of its business and has a voice in management. （每一个合伙人都有管理权，并在企业目的范围内成为合伙企业的代理人。）In the absence of a specific agreement, all partners share equally in management decisions. The partners may agree among themselves as to how profits and losses are to be allocated （利润和损失的分配承担）and how the partnership business is to be managed; the partnership agreement is sometimes referred to as the law for that partnership. It is binding on the partners but not binding on persons who are not parties to the agreement. （合伙协议有时被看作是合伙企业的法律，它对合伙人有约束力，但对缔约方之外的人不产生效力。） Because of the agency and profit sharing relationship within a partnership , broad fiduciary duties （广泛的诚信义务）exist among the partners. A partnership is a fragile form of business: （合伙是一个脆弱的经营体）it is dissolved （解散）automatically when a partner dies or leaves the partnership; it may also be dissolved by any partner by his express will （明确的意思表示）at any time. Upon dissolution, the withdrawing partners are entitled to receive the value of their partnership interests from the partnership, which may either be wound up and terminated（解散和终止）, or continued by the remaining partners and possibly new partners as well. (1) Two kinds of partnership in China. There are two kinds of partnership in China: “individual partnership”（个人合伙） prescribed in the CIVIL LAW and “partnership business”（合伙企业） in the PARTNERSHIP BUSINESS LAW. Individual partnership. “individual partnership ” refers to two or more citizens （公民）associated in a business and working together, with each providing funds, materials objects, techniques （资金、事务和技术）and so on according to an agreement. ( CIVIL LAW: Article 30) Partnership shall make a written agreement （书面协议）covering the funds each is to provide, the distribution of profits, the responsibility for debts, the entering into or withdrawal from partnership, the ending of partnership and other such matters. （出资数额、盈余分配、债务承担、入伙、退伙、合伙终止等事项）If the individual partnership has not been approved and registered in accordance with law and regulations, could it conducts business? Yes. Individual partnership and partnership business differ sharply with respect to the registration.（登记）Partnership business: the date on which the business license （营业执照）of a partnership business is issued is considered the beginning of establishment of the partnership business. Before the acquirement of the business license, partners of partnership business are not permitted to engaging in operating activities in the name of “partnership business ”(PARTNERSHIP BUSINESS LAW: Article 17). A partnership agreement shall take effect after it is signed and sealed by all partners before application of the registration. The partners shall exercise their full rights and be responsible for liabilities according to the partnership agreement. That is to say, it can be considered as a “individual partnership” upon conclusion of the partnership agreement （合伙协议签订之后）before the registration. After registration, it becomes “partnership business”.There has only general partnership, （普通合伙企业）no limited partnership（有限合伙） in China. A partnership business is not permitted to use such words “limited ”or “limited liability ”（有限或者有限责任）in its title. We can see the conditions of the establishment of a partnership business: (1) two or more partners who shall all shoulder unlimited liabilities （无限责任） according to the law; (2) a partnership agreement in written form;（书面形式的合伙协议） (3) capital fund contributed by all partners; (4) a name of the business concerned; and (5) operating sites （经营场所）and conditions of the business. A partnership business shall first of all use all of its property to repay its debts. Whereas the property of the partnership business is insufficient for repayment of its payable debts, each partners shall shoulder unlimited and joint and several liabilities for the repayment(合伙企业对其债务，应先以其全部财产进行清偿。合伙企业财产不足清偿到期债务的，各合伙人应当承担无限连带清偿责任). (2) Kinds of partnership in America. There are two kinds of partnerships traditionally: "general" partnership and "limited" partnership. A. General partnershipA partnership is sometimes referred as a general partnership, A "general partnership" is any association of two or more people who carry on a business as co-owners, a general partnership is a partnership in which each partner is liable for all partnership debts and obligations in full regardless of the amount of the individual partners capital contribution. (而不考虑个人合伙人的出资数额) A general partnership can come into existence by operation of law, with no formal papers signed or filed. Any partnership is a "general" one unless the special requirements for limited partnerships (see below) are complied with. B. Limited partnershipsA limited partnership is a partnership in which the business is managed by one or more general partners （普通合伙人）who are each liable for all the debts of the partnership and is provided with capital by one or more limited partners (有限合伙人)who do not participate in management but who share in profits and whose individual liability is limited to the amount of their respective capital contributions. (Web, 353) A "limited" partnership can only be created where: (1) there is a written agreement among the partners; and (2) a formal document is filed with state officers. （州官）A limited partnership has two types of partners: (1) one or more "general" partners, who are each liable for all the debts of the partnership; and (2) one or more "limited" partners, who are not liable for the debts of the partnership beyond the amount they have contributed. C. Other kinds of partnershipa. professional limited partnership (专业有限合伙企业)is a limited partnership with general and limited partners that is engaged in the practice of a profession. This business form is currently recognized in only a handful of states in American. b. limited liability partnership (usually referred as an LLP) （有限责任合伙）is authorized in about twenty states in America. An LLP is a general partnership that has elected to provide innocent partners （无辜的合伙人）protection against malpractice (失职) or similar tort claims （侵权之诉）arising from actions of other partners. In some states, an LLP election also protects innocent partners against contract claims as well as tort claims. An LLP election is made by filing a certificate with a public official and paying a fee usually based on the number of partners; such an election is valid for one year in most states and must be renewed annually. c. limited liability limited partnership (usually referred to as an LLLP) （有限责任有限合伙）is authorized in only a handful of states in America. It is a traditional limited partnership except that its general partners have elected LLP status as among themselves. In an LLLP, limited partners have the traditional protection of limited partners while innocent general partners have the limited protection against malpractice and tort claims provided by the LLP election. 3. Kinds of corporation. (1) for-profit corporation, non-profit corporation. （盈利公司、非盈利公司）For-profit corporation, also business corporation, is a corporation organized to carry out activities for profit. Non-profit corporation, or nonprofit corporation, is a corporation organized for charitable, religious, educational, cultural, （慈善、宗教、教育、文化）or similar purposes, and not to generate profits for the shareholders. (2) close corporation, public corporation.（封闭公司，公众公司）Close corporation is a corporation whose shares are held by a small number of individuals and not publicly traded, called also closely held corporation. Public corporation is a business corporation whose stocks are publicly traded. (3) professional corporation(P.C.)（专业公司）a form of business organization allowed to individuals or groups practicing professions such as law or medicine, having some characteristics of corporations but not affording limited liability to the members, in some states in American called professional association(P.A.). (4) S corporation, a small business corporation that is treated for federal tax purposes as a partnership in American. (5) shell corporation（工具公司）A. shell corporation is a corporation that exists as a legal entity without independent assets or operations as an instrument by which another company or corporation can carry out dealings usually unrelated to its primary business. B. a corporation formed for purposes of tax evasion (avoiding) or acquisition or merger rather than for a legitimate business purposes. (6) branch, subsidiary of corporation. （分公司，子公司）A. branch, is a part of a corporation. Branch of a corporation do not has the status of legal person, and the corporation assumes the civil liabilities of its branches. (COMPANY LAW, 13)B. Subsidiary, a company or corporation having the majority of its stock owned by another company or corporation who is called parent company or corporation. The parent company of a subsidiary generally has the same policy-making powers as any majority owner and can do such things as appoint directors and hire officers. The subsidiary is controlled by the parent through these powers, and the parent may be held liable for the acts of the subsidiary if the subsidiary is found to be an instrumentality of the parent. A subsidiary of a corporation has the status of enterprise legal person （企业法人地位）and assume civil liabilities independently in accordance with law. (COMPANY LAW, 13)(7) limited liability company, company limited by shares. （有限责任公司，股份有限公司）In COMPANY LAW, the term “company” refers to a limited liability company or a company limited by shares established within Chinese territory in accordance with the COMPANY LAW. In the case of a limited liability company, a shareholder is liable to the company to the extent of amount of the shareholders capital contribution. A limited liability company is liable for the debts of the company with all its assets. In the case of a company limited by shares, its entire capital is divided into shares of equal value and shareholders shall be liable to the company to the extent of the shares held by them. A company limited by shares is liable for the debts of the company with all its assets. All limited liability companies and companies limited by shares are enterprise legal persons. (8) domestic corporation, foreign corporation. （国内公司，外国公司）Domestic corporation, usually, a corporation incorporated in ones own state or country. Foreign corporation, is a corporation incorporated in another state usually, or sometimes is a corporation organized under the laws of anoth