Corporate Law Related Issues! Some issues of the Company Law IV

Generally, legal representatives will also be included in the list of dishonesty.

The main contents of Issue 3 of the Company Law are as follows: Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) stipulates that the promoters of a company who sign the articles of association, subscribe for capital contributions or shares, and perform the duties of establishing a company for the purpose of establishing a company include shareholders at the time of the establishment of a limited liability company. Article 2: Where the initiator signs a contract in his own name, and the other party to the contract demands that the initiator bear responsibility for the contract, the people's court shall support it.

Where after the establishment of a company, the contract provided for in the preceding paragraph is confirmed, or it actually enjoys contractual rights or performs contractual obligations, the people's court shall support it. Article 3 Where the promoter signs a contract in the name of the company, the people's court shall support it. After the establishment of the company, if there is evidence to prove that the promoter signed a contract with the other party in the name of the company, and the company claims that it does not bear contractual liability, the people's court shall support it, except for the other party's bona fide.

Question: If the shareholders' meeting removes Chairman A from office, does A have the right to preside over the board meeting of the company before the change of registration?

Answer: The registration of a change is an adversarial effect, which is different from the registration of establishment, which is an effective effect. Within the company, if the shareholders' meeting dismisses A as chairman, A is not the chairman of the board, so A has no right to preside over the board of directors of the company.

However, without the change of registration, the contract signed by A and a bona fide third party is still binding on the company.

Question: Company A and other 3 state-owned enterprises plan to establish a H share **** with a total share capital of 400 million. Company A became the largest shareholder with its plant, equipment, patented technology and land use rights.

After the establishment of Company H, Company A purchased 6 million public shares and sold them 3 months later, making a profit of 18 million yuan.

1) Whether the ** held by the promoter shall not be transferred within 1 year from the date of establishment of the company is applicable to this question, and what are the similarities and differences between ** and transfer?

2) What are the consequences of an illegal transfer and what is the legal basis?

Answer: (1) The ** held by the promoter shall not be transferred within 1 year from the date of establishment of the company, and this question shall apply. In this question, ** and transfer are the same meaning.

2) Paragraph 1 of Article 142 of the Company Law stipulates that the promoter of the shares of **** shall not transfer its shares within one year from the date of establishment of the company, and it shall be determined that it is a mandatory norm as a prohibition; From the analysis of the original legislative intent, the purpose of this provision is to increase the liability of the promoter and safeguard the interests of the company and the shareholders who are not the promoters, so it should be an effective regulation. It is illegal for the parties to sign a contract for the transfer of shares and dust, and it should be found to be invalid. The provisions of Article 52 of the Contract Law shall be applied, and it shall be deemed invalid as "violation of mandatory provisions of laws and regulations".

Question: There are 13 directors in a certain share, and at a board meeting, the meeting decided to replace the supervisors. Does this comply with the company's Lu Zen regulations?

Answer: The board of directors of the board of directors of the company has no right to replace the supervisors, please refer to the provisions of the third paragraph of Article 109 of the public and pure judiciary on the functions and powers of the board of directors of the board of directors of the company. In addition, according to Article 100 of the Company Law, the supervisors appointed by the shareholder representatives shall be replaced by the general meeting of shareholders; According to Article 118 of the Company Law, the board of supervisors of the company shall be composed of shareholder representatives and an appropriate proportion of the company's employee representatives, and the employee representatives shall be replaced by the company's employee representative congress.

Question: How do you view the validity of resolutions made by the company when there is less than a quorum of directors present on the board of directors?

Answer: According to the principle of protection of bona fide third parties, the transaction entered into by the company is still valid, because the resolution process is only an internal matter of the company; If the third party knows that the procedure is flawed, it shall be revoked. If the resolution harms the interests of the company, the directors participating in the resolution shall be liable for compensation to the company.

The Marriage Law stipulates that property acquired by husband and wife during the existence of their marriage relationship shall be jointly owned by the husband and wife, unless otherwise provided by law or otherwise agreed by the parties. Joint property is an inseparable whole during the existence of the joint relationship, i.e., the existence of the relationship between family members and husband and wife. The co-owners of the common property enjoy the rights and assume the obligations equally among the co-owners, and the external co-owners are jointly and severally liable.

Although the **** established by the husband and wife is two or more family members under the same household registration name or the husband and wife are invested and established in their respective names, if the property used to contribute capital is not the personal property of the family members or the husband and wife, but the joint property of the family or the husband and wife, it indicates that the family members or husband and wife who established the **** are actually a collective whole, and do not constitute a shareholder relationship with each other, and the whole family or husband and wife should be regarded as an investment subject.

In addition, since the company's family property is indistinguishable from the company's property, and Ms. Hu and her husband transferred the company's property to the family, according to Article 64 of the Company Law, if the shareholder of a one-person limited liability company cannot prove that the company's property is independent of the shareholder's own property, he shall be jointly and severally liable for the company's debts.

Therefore, Ms. Hu and her husband should be jointly and severally liable for damages.

"Piercing the corporate veil", when the shareholders did not transfer their capital contributions to the company, and did not establish separate account books, it was a commingling of assets. Moreover, they also transferred the company's property, which is an act of damage to the company, and the shareholders bear unlimited joint and several liability.

It can be seen from the description that this machinery and equipment limited liability company is a one-person limited liability company, and Article 64 If the shareholders of a one-person limited liability company cannot prove that the company's property is independent of the shareholders' own property, they shall be jointly and severally liable for the company's debts.

Compensation was made with the family property of Ms. Hu and her husband.

In fact, it also constitutes a false capital contribution.

According to the Company Law, Ms. Hu and her husband can be held responsible, including:

1. Bear supplementary liability within the scope of non-capital contribution. Because the title of the property has not been transferred, it should be classified as unfunded or under-contributed.

2. Shareholders who abuse the independent personality of the company may be required to bear the liability for compensation. The lack of strict distinction between corporate property and family property has led to the abuse of corporate personality by shareholders.

3. The unauthorized use of the company's funds to purchase a house and a car for Hu is an infringement by directors, supervisors, and senior executives against the company, and should be recovered in accordance with the Company Law.

1. In accordance with Article 24 of the new Company Law, a limited liability company is established by less than 50 shareholders.

Therefore, the company is composed of three shareholders in accordance with the regulations.

2. Yes Article 27 Shareholders may make capital contributions in monetary terms, or they may make capital contributions in kind, intellectual property rights, land use rights and other non-monetary assets that can be valued in monetary terms and can be transferred in accordance with the law; However, there is an exception for property that is not allowed to be used as capital contribution as stipulated by laws and administrative regulations.

3. Article 27 The amount of monetary contribution of all shareholders shall not be less than 30% of the registered capital of a limited liability company.

The registered capital of the company is 40 million yuan x 30% is greater than the monetary contribution of all shareholders of 10 million yuan, so it does not comply with the provisions of the company law and cannot be incorporated.

4. Need to handle Article 28 Shareholders shall pay in full and on time the amount of capital contributions subscribed by them as stipulated in the articles of association of the company. If the shareholder makes a monetary contribution, the full amount of the monetary contribution shall be deposited into the bank account opened by the limited liability company; Where non-monetary assets are used to make capital contributions, the formalities for the transfer of property rights shall be completed in accordance with law.

5. There is an error in negotiating that C does not bear risks.

Article 3 The company is an enterprise legal person, has independent legal person property, and enjoys the property rights of legal person. The company is liable for the debts of the company with all its property.

The shareholders of a limited liability company are liable to the company to the extent of their subscribed capital contributions; The shareholders of the shares are liable to the company to the extent of the shares they subscribe.

6. Yes A shareholders' meeting should be established as the highest body of the company.

Article 37 The shareholders' meeting of a limited liability company shall be composed of all shareholders. The shareholders' meeting is the authority of the company and exercises its functions and powers in accordance with this Law.

The main reason is that the amount of monetary contribution is not less than 30% of the registered capital, and the amount of monetary contribution of C is exactly 30%.

Company Law Article 27 Shareholders may make capital contributions in monetary terms, or in kind, intellectual property rights, land use rights, and other non-monetary assets that can be valued in monetary terms and can be transferred in accordance with the law; However, there is an exception for property that is not allowed to be used as capital contribution as stipulated by laws and administrative regulations.

The non-monetary property used as capital contribution shall be appraised and verified, and the property shall not be overvalued or undervalued. Where laws and administrative regulations have provisions on appraisal valuation, follow those provisions.

The monetary contribution of all shareholders shall not be less than 30% of the registered capital of the limited liability company.

Article 27 of the Company Law stipulates that the monetary contribution of all shareholders shall not be less than 30% of the registered capital of a limited liability company. The proportion of monetary contribution in item C to the registered capital is just 30%, which is in line with the regulations, so it is selected.

In fact, the capital contribution a, b, c d are all legal contributions.

The contributors of a limited liability company have full civil capacity, and the capital contribution table can be made in cash or in kind.

This answer does not say that C. must be chosen.

1. Net worth is too small; 2. The approving authority is illegal; 3. The value of the issued creditor's rights is excessive.

2. For details, please refer to Article 16 of the ** Law for public issuance of corporate bonds, which shall meet the following conditions:

1) The net assets of the shares shall not be less than RMB 30 million, and the net assets of the limited liability company shall not be less than RMB 60 million;

2) The accumulated bond balance does not exceed 40% of the company's net assets;

3) The average distributable profit in the last three years is sufficient to pay the interest on the corporate bonds for one year;

4) The investment of the raised funds is in line with the national industrial policy;

5) The interest rate of the bond does not exceed the interest rate level set by ***;

6) Other conditions specified in ***.

The funds raised by the public issuance of corporate bonds must be used for the approved purposes and shall not be used to cover losses and unproductive expenditures.

In addition to meeting the conditions specified in the first paragraph, the issuance of corporate bonds by listed companies that can be converted into ** shall also meet the conditions of this Law on public issuance, and shall be submitted to the ***** regulatory authority for approval.

Article 163 of the Company Law: "When a company issues corporate bonds, the board of directors shall formulate a plan and the shareholders' meeting shall make a resolution. The issuance of corporate bonds by a wholly state-owned company shall be decided by an institution authorized by the state for investment or by a department authorized by the state.

After making a resolution or decision in accordance with the provisions of the preceding two paragraphs, the company shall report to the ***** management department for approval. ”

Article 4 of the Interim Measures for the Administration of Corporate Bonds: "The issuance of bonds by a company must meet the conditions specified in these Measures and be approved by the China Securities Regulatory Commission. Bonds shall not be issued or disguised without approval. ”

1. Before the issuance, a sponsorship agreement shall be signed with the sponsor, and the sponsor shall counsel the enterprise and issue a letter of sponsorship for the issuance of bonds.

2. The company that issues corporate bonds shall meet the conditions stipulated in the ** Law, as specified in Articles 16 and 18 of the ** Law. A net worth of 50 million is definitely not eligible.

3. The issuance of corporate bonds shall be submitted to the China Securities Regulatory Commission and approved, and the county has no right to approve.

4. The procedure for raising corporate bonds is illegal. Before the issuance of corporate bonds, the public offering documents shall be announced, and the documents shall be placed in a designated place for public inspection.

The main pieces, the details of the problem you can add in accordance with the provisions of the laws and regulations.

1) Wang, as a shareholder of the company, can sue Zhang when he meets certain conditions. According to Article 148 of the Company Law, directors of the company shall not violate the articles of association of the company and provide security for others with the company's property without the consent of the shareholders' meeting, the general meeting of shareholders and the board of directors. According to Article 151 of the Company Law, if a director violates Article 149 and causes losses to the company, the shareholders of the company have the right to sue and may file a lawsuit in the people's court if they meet certain conditions.

2) According to Article 151 of the Company Law, Wang sued Zhang for holding shares for more than 180 consecutive days or holding more than 1% of the total shares.

3) According to Article 151 of the Company Law, if Wang files a lawsuit in his own name, he needs to first apply in writing to the board of directors or the board of supervisors or the supervisor without a board of supervisors to file a lawsuit in the people's court, but if he is rejected or has not filed a lawsuit after 30 days, or if he does not immediately file a lawsuit that will cause losses to the company, Wang may file a lawsuit in the people's court in his own name.

3) According to Articles 148 and 149 of the Company Law, if a violation of the duties of a director causes damage to the company, the director shall be liable for damages. As the chairman of the board of directors of the company, Zhang has violated the duties of a director by providing guarantees to others with the company's property without consent, thereby causing damage to the company. Therefore, Zhang should be judged to be liable for damages to Hongda shares.

It's not easy to code words!