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Legislation of one-man company in China from the perspective of the connotation of the company and the governance structure

Author: HeNaiGang From: www.yourpaper.net Posted: 2007-11-20 07:46:36 Read:
[Abstract] a person of company and company association, legal personality conflict is the traditional civil law is difficult.According to the concept of Anglo-American law firm, the conflict does not exist.Each country from a development perspective, to varying degrees of one-man company.From the legislative perspective, there is no one company alone legislation, but the regulations and the general company together, but in view of the uniqueness of a company, and to strengthen the regulation of a company from the legislative and judicial application.China's current legislation restricting one company to establish domestic private capital investment, but the opening set up a human of company of state-owned capital and foreign capital investment.Obviously, this is not in line with the spirit of fair competition, is not conducive to the development of China's non-state-owned economy.Give up China in part based on the recognition of the one-man company legislation in the form of system of ownership to punish way, universal legitimacy one-person limited liability company, at the same time, learning from the advanced experience of legislation in foreign countries, is a reality, but also improve our legal system must.
[keyword] a corporate legal person governance structure of independent corporate liability
One-man company refers to the company shares or capital contribution mainly held by a person.From the present time, it is divided into two types, one is the establishment of the company is the only one person, another case is when the company established several members, but after the establishment of the company for various reasons only one member; from the company's organizational form, and can be divided into a Limited by Share Ltd and a limited liability company two.
Since twentieth Century, because of increasing capital investment and high-tech development, raise capital as the company system and the development of the main factors gradually fade, the limited liability of shareholders become key points of the vast majority of investors choose the company as the mode of investment, investors also hope to get even one person limited liability of the infinite benefits.The legislation of one-man company is naturally became the various countries have to consider the question, because no matter whether the policy allows, one man company exists has become an indisputable fact.
Conflict and coordination of law concept, one-man company and traditional company
Legal person, for-profit and community as the basic characteristics of the company, starting from the first contact with the company law, whether the teacher to explain or scholars monographs, almost can not be questioned.Facing the rapid development of one man company and widely exist, I have to reflect: what is the association of a company?Whether the law of human nature would be affected, and the destruction of their independent responsibility?The traditional corporate governance structure of the Trinity is meaningless in front of one-man company, one-man company how to construct the governance framework?
Association of 1, a human of company and company
One-man company and traditional company law on corporate conflict obviously, also the most sharp.According to the traditional company law, the company is for a purpose with the plural subject, plural subject will through the confirmation of group personality and the transformation of the company will show.However, one of the shareholders of the company is the only, the shareholder is the company will.One single shareholder control company fact, a serious challenge to the corporation company.
In fact, in the common law concept, the single subject to set up a company, is the inherent concept.Open the Black 's Law Dictionary, refer to Company Corporation two words and know, corporation can have only one member (shareholders), moreover, is not necessarily a for-profit, doctors, accountants, lawyers may establish special occupation in Anglo-American law system.In Anglo-American law, Corporation is not only the corporate profit that the company law of China company, also include non-profit organizations, even consortium, in short, is equivalent to the continental law legal concept.In 1996 the United States "uniform limited liability company law" 202nd article: "one or more of the people, (Note: This refers to" man ", refers to an individual, corporation, business trust, estate, trust, partnership, limited liability company, group, joint venture, government, branch of government departments, agencies or any other legal or commercial entity.)As long as the (secretary of state) office to submit articles of Association for the record, you can organize one or more members of a limited liability company."Obviously, in the common law, a person does not exist in conflict with the community characteristics of the problem.
Then, mass organizations, for-profit and other characteristics that our country's company law. Where it came from?It is not difficult to answer.The continental law tradition of legal conceptually divided into two categories: corporate and foundation.The former is a collection of people, while the latter is based on the property.Corporation is further divided into for-profit corporations and nonprofit corporation.The company is a for-profit corporation."The Japanese Commercial Code" article fifty-second stipulates: "the so-called law, refers to the business activities for the purpose of setting up the community."In fact, with the development of economy and the change of the times, the countries of continental law system have the community features of the company must stand has gradually shaken.For example, Germany in 1993 revised "limited liability company law" first stipulates: "the limited liability company can be in accordance with the provisions of this law allows for any purpose set up by a person or persons."In July 11, 1985 France provisions of Law No. 85-697: "company in the law of the case in accordance with the will of the people and the establishment of a."The legislation practice fully proves that the traditional concept of law in corporate issues strictly follow the group character is unrealistic, does not meet the requirements of the development of.
2, one of the company and the company's corporate and independent corporate liability
According to the traditional theory of company law, the company's independent personality is the shareholder and the company on separating property, operating on the premise of corporate responsibility, but also the independent legal person independent personality is the premise to.In one company, the only shareholder of the company often hold control over the company, shareholders and company is not real separation is difficult to control, the company's independent legal personality is difficult to guarantee.No independent legal personality, independent, one company will lose foundation.
Remarkable theory and design of the traditional jurisprudence concerns from scholars in order to solve the problem of a person's character: potential associations, societies, especially that shares said property, legal effect of attribution, said policy etc..(Note: ci-yun Zhu: "the company law personality denial of legal research", Law Press, 1998, pp. 210-215.)In fact, the property of the company and the shareholder property can be isolated, and the number of shareholders is not necessarily linked, can be determined from the system.Otherwise, the more investors to set up companies, if there is no good system cannot prevent shareholders loss "public" fertilizer "private", thus jeopardizing the creditors and employees and other stakeholders' interests and market order.Further, one shareholder as executive director of operations and management of the company, is the proper meaning.If one company to establish private investors but can not participate in the management, a company has no attraction.As the policy point of view, strictly separated in the property to a human of company and shareholders of personal property management, should be independent legal person through the legislative policy recognition of a person's personality.
As for the legal person's independent responsibility, in fact, is not the inevitable outcome of corporate personality.In fact, promote the formation of independent corporate liability from shareholder limited liability system.It should be said, the company independent responsibility is the core content of the limited liability of shareholders.(Note: Yu: "the political level independent corporate liability question", "Chinese law" in 2001 first.)Admit Co., a shareholder in a company in the company is a popular local investors, based on maintaining the limited liability of shareholders of a people, discussion on the regulation mode of one person company, is the legislation of one-man company in the direction of.
3, one of the company's governance structure
In the legal company association under the concept of plural investment subject, existence of the company's diversification of property rights.In order to adjust the internal multiple property rights (plural subject) the interest relationship between the traditional concept of development of the company law, the general meeting of shareholders, board of directors and the supervisory board governance structure model of separation of the three powers.But only one company characteristics, to coincide with the corporate governance structure based on the diversification of property rights on the basis of the traditional company.For example: a person of company property right single led directly to the general meeting of shareholders lose its basis, make a person shareholder by the shareholder's meeting will be without its will into the company's will, and can be expressed directly to the outside world.Executive director of shareholders as the company, grasp the management right, it is a common phenomenon, in this case, the power of the "monopoly and focus", is really on the company's independent legal person and the limited liability of shareholders to challenge.Clearly, establish regulation mode, a person's a person between shareholders and creditors and other stakeholders interests balance system, maintenance of the limited liability of shareholders and the interests of all parties are not affected by the shareholders abuse the corporate form, is a process of one-man company legislation must be an in-depth look at the problem.
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