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Establishing and perfecting the system of one person company

Author: ZhengShiYu From: www.yourpaper.net Posted: 2010-05-31 13:46:42 Read:
Keywords: the one-man company legal system of   ; perfect
Abstract: of our country draw lessons from western developed countries a human of company theory, conform to the mainstream of the times, closely linked to the practice of market economy, through the revision of the "company law", established the legal system of one-man company.For a company, to promote benefit to avoid kill, and gradually improve the relevant legal system, make a person company embarked on a healthy development track.Perfecting the system of one person company can take many measures.
Ordinary limited liability company and Limited by Share Ltd, exists inside the separation of powers and checks and balances, institutions supervise each other three.The shareholders' meeting, board of directors, board of supervisors.In one case, the above mechanism basically does not exist, only shareholders often serve concurrently as director, or manager, this to shareholders unrestricted dangers of creditors and social public activities may be provided, and the principle of limited liability and make the possibility of greatly enhanced.This is necessary for a company. To analyze and improve.
, a company the drawbacks of
(a) a person shareholder abuse of a corporate personality, damage the interests of creditors of the company
A person shareholder management company is flexible, but the individual business philosophy, ability to deal with the often change often with limitations and one-sidedness, and once the company because of poor management and other reasons caused by the loss, because one person only shareholders to its investors assume limited responsibility, provides opportunities for shareholders abuse the company legal personality.Specific performance:
L, self dealing.Also known as their trading or self trade.According to China's "company law", the company's directors, supervisors, managers shall not use it for their own personal gain position and power in the company.In one company, due to the lack of effective supervision mechanism, easily as a director of the shareholder and the company for various unfair trading.For example, shareholders buy one of the property of the company, product, or shareholder property was sold to the company.
2, the excess return.A person shareholder become company directors, he can make financial plans for the company according to their own wishes, on behalf of the company to pay themselves a high salary, or otherwise rack one's brains for ingenious devices, pay their remuneration.
(two) a person shareholder limited liability, may harm the public interest of the society
1, avoid taxes.A shareholder may improve the remuneration of directors, to reduce their own should pay personal income tax cut dividends way.Also, in the parent and subsidiary company, the parent company often use our tax for foreign-invested enterprises large preferential tax.Foreign parent company can through the establishment of the China's "pipe" or "stepping stone" companies transfer profits, or escape through transfer pricing tax.This will reduce the amount of tax in china.
2, avoid the tort liability of a smaller company, the quality of the product or service quality is difficult to control.A person shareholder occasionally make a profit for the production of fake and shoddy products against the interests of consumers, or lead to the company because of too busy a transaction liability without fault, the principle of limited liability, the victim suffers personal injury and property damage is often not sufficient compensation.
(three) damage to the interests of workers
Damage the interests of workers and staff members, there are many ways.One of the most important form of the assets of the company is emptied and bankrupt the firm on the damage to the interests of the workers.In addition, the shareholder is the country's one-man company is a solely state-owned company, because of its special shareholders, with the inevitable national monopoly, often prone to monopoly, is not conducive to fair competition between the equal subjects.
A human of company of creditor's interests and social public interests, the interests of the staff and workers to protect and maintain normal economic order and social challenges.Therefore, the design of feasible prevention system will become the key to the success or failure of a company.The author thinks that the disadvantages of the following preventive measures can overcome a company, can make a person company in accordance with the legislative goals expected.
two, a human of company system
(a) no one company erected.
China's new "company law" fifty-ninth paragraph second: "one natural person is allowed to establish a one-person limited liability company.A limited liability company the one-person limited liability company shall not set up the crumbling."This is for setting up a company is prohibited.Investors with the company legal personality of one-man company, one-man company erected to malicious evade legal responsibility of violation of the provisions of the company law of one person limited liability company's aim and purpose, extremely easy to cause the social and economic order, endanger the safety of transaction, is strictly prohibited shall.
(two) dynamic minimum statutory capital system
The company law and other laws and regulations should be strengthened the company capital system, strict capital adequacy rules about this aspect of system design, we might as well learn foreign legislation.Dynamic minimum statutory capital system, is to pay attention to changes in one of the company's assets, build assets of one man company change report system, which makes the related interests, the interests can be effectively protected, while the formation of external supervision and effective to a human of company, static functions do not superstition of company capital system company information, make timely and smooth.
(three) the strict application of company registration system
In order to reflect the strengthening of financial supervision and the actual property, should increase the density of company registration rules, strengthening publicity and to type of application.Sixty-third new "company law" stipulates: "one person limited liability company shall prepare financial and accounting reports at the end of each accounting year, is audited by an accounting firm."The rising in enhancing financial supervision and management demands of the situation, the new "company law" in article 165th stipulates: "the company shall prepare financial and accounting reports at the end of each fiscal year, and shall be audited by an accounting firm."This shows that all limited liability companies and Limited by Share Ltd shall prepare financial and accounting reports at the end of each fiscal year, and to go through the accounting firm audit according to law.
(four) the individual shareholder limited liability company legal personality denial principle beyond --
This principle is called "the principle of piercing the corporate veil", it refers to the shareholder abuses the company independent personality and the limited liability of shareholders, the shareholders and the company shall bear unlimited joint and several liability.Sixty-fourth new "company law" stipulates: "a one-person company with limited liability shareholders can not prove that the property of the company is independent shareholders of his own property, he shall bear joint and several liability for the debts of the company."A limited liability company due to its single shareholder, the lack of other than a one-person limited liability company has the internal mutual restriction, so it is very easy to produce the property of the company and the shareholder property phenomenon.The new company law in determining the validity of a one-person limited liability company at the same time, in order to prevent the independent legal person shareholders abuse the company personality, will be the property of the company and their own confusion, for illegal purposes, especially in this section gives a one-person company with limited liability shareholders to prove that the property of the company is independent of his own property duty, if the shareholders can prove this point, it shall bear joint and several liability for the debts of the company, namely to bear on the company's debt obligations with all of its property.
(five) establish a supervision mechanism combining
Can say, is to create such a combination of internal and external mechanism, its purpose is to a certain extent constrained single shareholder power.On the one hand, within the company internal supervision by shareholders can be carried out outside the managers and employees on the resolution of shareholders; on the other hand, by the company registration authorities, tax authorities, tax consulting company, specialized Accounting Firm, accounting firms to strengthen accounting training to a human of company supervision and training from the outside.Responsibility of the shareholders of a company to be the most effective way to clear is strictly sound occurs the financial and accounting system.
(six) establish a corporate guarantee system
This system is mainly to strengthen shareholders personal responsibility.One of the shareholders of the company in addition to the limited amount of its contribution to assume liability to a human of company, liquidation or bankruptcy in a company, its property is insufficient to pay off its debts, should also bear the limited warranty.For example, the limited liability can be set at 1 times the original investment of shareholders.
Conclusion three,
One company has the traditional advantages, separation of responsibility and liability of shareholders. Enthusiasm greatly stimulate the investor's investment, so that the economy can greatly improve the efficiency of.At the same time, it should also pay attention to the protection of creditors and other interested parties.With the development of economy globalization. China formally became a member of WTO, facing the increasingly international competition, we must establish a perfect market economy system, because the market competition is the main competition.A person of company, the development of China's future market economy is not decisive, but also cannot be considered to be of no great importance.The design of a complete system, will decide the fate of the future of China and China in the world economic competition
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