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Shareholders' capital contribution in the form of investment in labor Discussion

Author: ZhuLongPing WangYinTao From: www.yourpaper.net Posted: 2010-04-28 19:35:03 Read:
[Paper Keywords] the form of investment in labor ESOP
[Abstract] mode of diversification of economic operators bred company this modern resource allocation, construction of company capital system is also more and more attention has been paid. The capital is the soul of the company, the foundation of the company's credit dependent. Therefore, modern companies pay more attention to the governance and operation of the company's investment in labor this new funding has not yet recognized by Law in China in the form of, but it became the focus of the doctrine of debate.
, Meaning "labor" to determine its value reflects the
"Labor" is not legal the proprietary terminology, sociology, political science, economics and so had been defined in labor, in which the author is no longer enumerate jurisprudence only this definition there are a variety of: labor for people living labor in the form of some kind of service to meet the needs of the people some attribute. Study in terms of its legal nature, one belonging to the behavior, does not belong to a specific object or property rights in civil law. Law on labor performance for certain behavior, and this behavior often results in tangible, visible, they and evaluation; Specifically, labor itself is invisible, it is difficult to assess, only through its carrier labor behavior, its value can be perceived, recognized. With intellectual property rights, land use rights, debt, equity, labor is also a kind of intangible property, but labor can only be attached to the carrier does not have a transfer of possibility, and therefore can not be directly used to pay off the debt. Thus, we can say, labor in the labor process, reflected through the value-added of the value of the goods, intangible property that has a personal attachment and can be quantified.
Labor value and can be quantified, there are also a large number of real life in the case of investment in labor, just get the "Partnership Enterprise Law" legal certainty and no recognition of the existing Companies Act. The reason is that, assumed the debts of the partnership, each partner in the partnership is the unlimited liability between the partners based on credit. This determines the partnership property does not necessarily have to be converted and readily convertible into cash debt service function of sex, the Partnership labor, credit (goodwill), simply is not as capital contributions. "Based on unlimited liability between the partners, creditors will not be a result of an individual partner's capital contribution of these characteristics and can not settle the danger exists. Limited liability company, the shareholders of the Company in its} H capital contributions to limit the debts of the company responsible for the company liable for the debts of the company with all its property. Initial property is formed by contributions by the shareholders. This objectively requires contributions by the shareholders the cashable and transferability. certain personal attributes labor, lack of independent transfer does not have a general equivalent product attributes and the value of the real property, together with the assessment on random and non- OK. "This means that investment in labor guarantee function and the protection of the interests of the creditors of the company on the company credit function there are likely to be injurious.
Second, investment in labor reasonable discussion
Before and after this article aforementioned labor value and can assess it seems there is a contradiction here need to be clarified. To determine the labor value of certainty and can assess participation in a standard compelled to pay labor and the future will have to pay labor. All week, labor after paying into the lesson real property constitutes a part of the value of the property, it has to pay the value of labor services has been identified and has the characteristics of the evaluable. This assessment form and other forms of property assessments no different cause; not pay labor, due to their personal attachment, whether into real value is uncertain, both can not be transferred, and should not be enforced; fundamental research, can not be a capital contribution in the form of a limited liability shareholders investment in labor, and that the existing system of limited liability structure is not perfect and needs protection guarantee function based on the company's capital and the interests of creditors.
Limited liability of shareholders is not the stereotypical rigid. Therefore, the limited liability legislation, the appropriate standards of behavior. Away from its legislative purpose when the limited liability of the limited liability of shareholders personality may be denied; Companies Act on personality denial system is used to prevent the abuse of shareholders' rights, the protection of limited liability system. The challenges faced by the three principles of statutory registered capital system and capital is more and more obvious, in terms of the ability of the company to assume responsibility, the registered capital of foreign companies responsible for the initial property. But initially the company's property and not on behalf of the company's credit status and solvency; decrease of capital, capital, capital reserve precisely that the company's credit status and solvency is not given the same; company the ability to become stronger, the scale larger, increased profitability, the company will become more credit; company operating recession, heavily in debt, to save itself only through a capital reduction, also will reduce its credit. This shows that the statutory registered capital of the company's solvency and credit status with the company is not necessarily linked to investment in labor as a form of financing. Its existence became inevitable.
Third, investment in labor issues requiring attention
Investment in labor is different from other forms of contribution, which itself has a particularity; legislation should not be any form of investment in labor be denied, can not accept, and should be treated differently; should also be concerned about the assessment of the problem of the underlying investment in labor; addition, investment in labor With liability and enforcement issues should distinguish deal.
1. The perfect investment in labor law system. Investment in labor, foreign about j the legislation: one is based on a Korean commercial law and French law on Shoji Company, represented by the strict restrictions on investment in labor mode. Such as the Korean Commercial Code Section 272 provides that: members of limited liability, shall not be the subject of its m-owned to labor. Academia that labor can not be used for financing because no clear assessment can not be the future uncertainty of the labor and hard to realize is bound to weaken the company's capital guarantees; second the legislation is a clear distinction between has fulfilled labor and labor to be performed in the future, such as Article 25 of the Canada Business Corporations Act provides that: unless the the past services constitute consideration has been paid, otherwise it can not issue any shares; the third for the legislation is based on commercial law provisions of the United States and the United Kingdom represented allow investment in labor.
It can be seen with the first paragraph of Article 27 of the "Company Law" from our law does not recognize investment in labor, but in theory Based on this, we can not deny the value of labor services and financing functions, have to pay the labor has been transformed into the reality of wealth, of course, currency assessment and sale in accordance with the law. In view of this, we learn from the second the legislation in the next legislative practice, the right to allow the paid labor as capital contribution, to give the shareholders' freedom of contract; for shareholders, the share of investment in labor, can not be counted Company of the total registered capital. This is necessary to consider the trend of diversification of corporate financing in the form, but also to regulate the company's capital system, to protect the solvency of the company's debt.
2. Assessment of investment in labor. Labor is a special contribution of the subject matter, and its valuation is difficult, but the assessment is difficult does not mean can not assess, but you can not apply the traditional method of property assessment. Labor should pay its contribution to the enterprise as a reference standard, which includes direct operating income and indirect income; labor and for the promise of future pay, you should from its position in the company in which the individual ability labor length of time as the assessment basis. Of course, this should be used for property assessment system is different from the traditional.
3. Labor funded enforce. Traditional property investment in the subject have sex realizable negotiable feature, so the shareholder withdraws the capital contribution, debt settlement on false capital contribution and the company went bankrupt, the court may direct the implementation of the property of the shareholders, pay labor, because it has into the reality of the company's property, its enforced there is no problem, lies in the flaws of capital not labor invested shareholders, they do not have because of their personal enforceability, the Court can not force the shareholders to pay labor. In this regard, I believe that the flaws of capital for future investment in labor, shareholders appear, the court may, in disguise to perform his or her property, that the property of the assessed value of the shareholders in funding commitments labor to perform the shareholders reality, in order to reach from fair reasonable purpose; same time, in order to maintain the company's capital is relatively stable, appropriate limits on the amount of shareholders' investment in labor is very necessary, for example, can not be more than 20% of the registered capital of the company, etc.; contribution to labor in the form, in its
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