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The impact of a traditional company law

Author: ZhuCiYun From: www.yourpaper.net Posted: 2009-05-26 15:38:01 Read:
[Abstract] Since the 1980s, many countries conform to the objective needs of the modern market economy, has established the legal status of the one-man company in the Companies Act. However, the emergence and development of the one-man company, the traditional corporate community concept and the company's legal system had a great impact, so that people have to rethink the essential characteristics of the corporate system. This paper argues that the traditional concept of the company to recognize the one-man company of company legislation unfavorable, should be emphasized that the essential characteristics of the company is independent of its contributors legal, rather than in its societies. But we need to address the drawbacks of the one-man company, shareholders because one does break the checks and balances of the plural shareholders. Therefore, we should establish the legal status of the one-man company in the Companies Act the same time, strengthen the balance control on the one-man company operating mechanism. Such as strengthening the company's capital system, strict capital adequacy rules; strengthen the of publicity doctrine and to be the application of the doctrine in the company registration; to apply unlimited liability in the the statutory limited range of the shareholders of one; applicable to uncover certain situations, the system of the corporate veil.
[Key words]; nature; rules of the Act,
[Body]

I. Introduction
One company's history can be traced back to 1925 Liechtenstein natural persons and corporate law. In the future, there are individual countries and Commercial Law allows the establishment of one-man company [1]. However, in the promotion of use of the one-man company to play the first role was in 1980 the German Limited Liability Company Act. Since then, the legislation of the one-man company began to form a trend, many of our scholars also advocated legislation to confirm the status of the one-man company in China. Accordingly, the theory of the one-man company, such as a reasonable, the status of the one-man company, the sole shareholder of the one-man company obligations and responsibilities, the relationship of the one-man company and piercing the corporate veil are people seriously. However, these merely in the discussion of the one-man company, there is no appearance of such fundamental changes from the one-man company to look at the entire Company Law. Obviously, the latter is a very important issue.
One after the emergence of the company, regardless of is the real meaning of a company, or form meaning of a company are the people proposed a sharp question, that is to insist not to modify the traditional concept of the Companies Act, only with the existing Company Law theory to explain a phenomenon of the Company, or full attention to a series of major changes in the emergence of one-man company, summed up the phenomenon of one-man company, complement and development of the theory of the Act? The same time, we also have to face an important fact, the rules of the Act in the one-man company under the impact of a new restructuring, some strengthening, some weakening. No doubt, which also need to explore the regularity of things. This paper attempts to explore the impact of one-man company of the traditional company law.
Second, the one-man company to the philosophy of the Act brought about?
What is the concept of the Act? A variety of different angles to make a variety of different answers. But the nature of the rules of the Companies Act, it is the use of the rule structure, the company became legal, and make it like a natural person engaged in the activities of the Commercial, the pursuit of profit in a market economy with high efficiency. Involving the nature of the company, but also involves how to obtain personality.
(A) to uphold and carry forward the spirit of the freedom of business
The emergence of one company is not accidental, it in addition to the needs of social and economic development [2], or the philosophy of the Act to carry forward the results in practice. Private law is a fundamental principle is the principle of freedom of commercial law as a private law jurisdictions of course adhere to this principle, business freedom (or the free operation) [3] is the reification of its principles. In order to maintain the market economic order, fast transactions and order unity, commercial law and the implementation of the free operating principle of statutory restrictions. No doubt, as an important part of the Commercial Law Company Law, the statutory limits of the business and operating of liberty more specific. An economist when he said, "three cornerstones: limited liability company to run the company's fundamental rights, freedoms and freedom generated by a variant of the consequences - social responsibility" [4]. In any case, "free" is a very important thing in this complex adaptive system [5]. Uphold the freedom of investment on the one hand, the Companies Act, Shareholders wishing to subscribe funded, freedom of shares, investment, freedom of share transfer; On the other hand, investment, transfer of shares subject to statutory limitations. In accordance with the Company Law of the civil law tradition, as an individual investor can freely subscribe capital contribution or share, but the establishment of the company in accordance with the Companies Act also need to have a certain number of other investors to subscribe funded shares. In other words, only one investor to subscribe for capital contribution or share, can not meet the needs of this form. At the same time, shareholders may freely transfer capital contribution or share, but will be funded or shares that will eventually be transferred to a person, attributed to the dissolution of the company. Obviously, this is a strictly limited freedom of investment for investors and shareholders. When the real significance of the one-man company to fund or shares that will eventually transfer to one person is no longer as with the dissolution of the company, the shareholders to transfer their investment shares are subject to narrow the scope. When some countries permitted by the Act to establish a one-man company, the shareholders of limited liability companies and joint stock promoters no longer have the minimum number of requirements, the Companies Act give the investor the scope of freedom of investment is even greater. This indicates that the Companies Act permits the establishment of the one-man company, in essence, adhere to the spirit of freedom of investment, and carry forward the spirit of freedom of investment.
(B) amended the company's Essence of
The nature of the company is one of the core concept of the Companies Act. After the appearance of the one-man company, the nature of the company's first people to re-examine.
In civil law countries, usually people in accordance with the requirements of the national commercial law, the nature of the company summed up as corporate judicial person. Although the General Principles of the Civil Law of China has not recognized in the legal classification corporation aggregate, but the substantial majority of Chinese scholars also said the company is a corporation aggregate according to the civil law theory. The emergence of one-man company, this understanding of the nature of the companies face serious challenges. Because one can not ignore a basic fact that only a one-man company shareholders. In this case, a pointed question raised, the company can not be called a judicial person?
The study, from the point of view of the "process" in the discussion of the nature of the company, had to start from the analysis of actions to establish. The groups formed means that actions to establish the essential elements of "[6]. Before a company set up to allow formal sense, the establishment of the countries [7] are complex [8]. Thus, from the legislative to the Company Law legal company actions to establish the number of human behavior. However, the number of people set up the company's behavior is how to represent the groups forming the meaning of "? There are several theories.
First, the contract (ie contract) Contract Law of China - the establishment of the company's behavior is an act of contract.
Second, individual behavior - that company actions to establish the shareholders to organize for the purpose of individual single act.
Third, the common behavior - two or more companies to set up behavior is based on the purpose of the same organization whom common behavior.
The traditional Company Law theory holds that the contract that will be established the debt contract actions to establish autologous confused; enter into the Articles of Association, depending on the company's investor agreed not most of the individual joint coupling of individual behavior, and thus separate improper behavior that . Companies to set up behavior is precisely the intention polymerization of companies to set up are the same direction, thus common behavior is said to pass said. And "common behavior" is the "number of people" "common behavior", say, become the initial theoretical basis for the interpretation of the establishment of associations "group mean form, and generally for the nature of the judicial person.
However, the "common behavior" has begun to be shaken. Amended on June 22, 1998, the German Stock Act "contract (charter)" [9] to replace the original "German Stock Act (amended in December 13, 1978)" Memorandum and Articles of Association [10] the requirement that the official "contract" with the Articles of Association of the Company in the form of legislation mix. "German Limited Liability Company Act, as amended in 1998 entirely to the provisions of the" contract "[11] instead of the original German Limited Liability Company Act (amended in 1977)" Articles of Association "[12] provisions. Accordingly, the German scholar is no longer adhere to the "common behavior", but the behavior is interpreted as the Societies Act or the Organic Law on the contract will be set up. Is no doubt that this change in doctrine did not completely abandon the company set up to form the intent of the meaning of community groups. Instead, it remains to illustrate the company had been set up in the bud of societies, is simply to change the specific content.
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