On the application of company law in small and medium-sized enterprises

1. The promoters' unilateral behavior in the company.

The Company Law does not stipulate the sponsors' unilateral acts such as charitable donation and government donation in the establishment of small and medium-sized enterprises. In fact, when sponsors donate or accept donations through unilateral acts, they may use their own names or the names of established SMEs. If the relevant legislation is not restricted and controlled, the promoters may do bad behavior for their own interests, resulting in damage to the interests of established small and medium-sized enterprises, creditors and other related subjects.

The author believes that the following provisions should be added to the company law to make up for the legislative defects: if the promoters make donations in their own names during the establishment of small and medium-sized enterprises to benefit them, the relevant legal responsibilities will be borne by the small and medium-sized enterprises after their establishment, otherwise, the promoters will bear all the consequences; Sponsors accept donations and other related acts, and small and medium-sized enterprises bear all legal consequences after their establishment.

The Company Law does not clearly stipulate how to deal with the loss of the interests of the counterparty due to the fault of the promoters when small and medium-sized enterprises cannot be established. For example, in the process of setting up small and medium-sized enterprises, the interests of the parties to the transaction are damaged or the business secrets of the parties to the transaction are violated because of the advertising mistakes of the promoters. In my opinion, the company law should make the following provisions to make up for the legislative defects: in this case, according to the principle of fault liability stipulated in the Tort Liability Law, the promoters shall bear the liability for damages, and different promoters shall bear specific compensation shares according to the severity of the fault.

Second, the provisions of the Company Law on the establishment responsibility of small and medium-sized enterprises are not perfect.

The establishment of the responsibility system of small and medium-sized enterprises is conducive to ensuring the effective implementation of their behavior system and personality system. However, for the initiation and liquidation of the responsibility of small and medium-sized enterprises, the provisions of the Company Law are not specific and comprehensive enough.

(a) the responsibility system for the establishment of the company

Responsibility initiation is mainly aimed at sponsors. According to the second paragraph of Article 28 of the Company Law? Where a shareholder fails to make capital contribution according to the prescribed amount, he shall be liable for breach of contract to the shareholder who has made capital contribution on time according to the prescribed amount? ; And article 3 1 stipulates? After the establishment of a limited liability company, if the actual value of non-monetary assets as the company's capital is obviously less than the value stipulated by the company, the investor of the assets shall be less than the remaining difference; Other shareholders of the established company should also bear the responsibility. ? There are some defects in these two provisions of the Company Law, including: First, the provisions do not explicitly mention the contribution of monetary assets. In this regard, the legislature seems to think that the monetary contribution must go through the capital verification procedure, so the sponsor's contribution must be in full. But in fact, it is very common that sponsors can use false capital contribution to bypass the capital verification link, or cooperate with capital verification institutions to defraud the qualification for successful capital verification.

In my opinion, clauses should be added to the relevant clauses? The promoter's monetary contribution must be in full? . Secondly, according to the investment behavior of sponsors, Chinese laws classify SMEs before and after their establishment. Before the establishment of small and medium-sized enterprises, it was a breach of contract for promoters not to make capital contributions according to regulations, so they did not directly assume the responsibility for capital contributions to small and medium-sized enterprises; After the establishment of small and medium-sized enterprises, according to the provisions of Article 28 of the Contract Law, if the promoters have insufficient capital contribution, they shall be responsible for making up the quota, and other relevant promoters shall also bear the responsibility. I think the latter liability provision is too simple.

(2) The Company establishes a liquidation responsibility system.

No matter whether the company can't be established or the company is invalid, small and medium-sized enterprises lose their legal personality during or after its establishment and have to be liquidated. However, the Company Law does not specify how to liquidate and how to take responsibility. In my opinion, the following provisions should be added to the legislative content to improve the liquidation responsibility system of company establishment: first, small and medium-sized enterprises do not have legal person status in the process of establishment, which is equivalent to partnership status and can be liquidated according to the Partnership Small and Medium-sized Enterprises Law; Second, if there are corresponding liquidation provisions for the establishment of small and medium-sized enterprises, they can be implemented in accordance with the provisions of small and medium-sized enterprises;

Third, when the small and medium-sized enterprises are established in liquidation, they should return their share capital to the non-sponsor shareholders and treat them as ordinary creditors. This can not only protect the interests of non-promoter shareholders, but also meet the requirements of Article 95 of the Company Law on the liability of promoters. If the assets of the established small and medium-sized enterprises cannot pay off all the debts, the promoters shall be jointly and severally liable for the debts of the established small and medium-sized enterprises and shall repay them. conclusion

To sum up, China's company law should make up for the above legislative deficiencies as soon as possible, and constantly improve and develop on the basis of the existing legal system, so as to enrich the theoretical connotation and scientifically guide practical activities. Only by establishing the civil status of small and medium-sized enterprises in legal form, reasonably explaining their nature and reconstructing the responsibility mechanism of company establishment can we coordinate and handle all kinds of legal relations, realize social fairness and justice, and thus promote the healthy and sustainable development of China's social economy.

Company Law Related Papers 4

On the reform of company law

1, the main problems existing in the current company law

In recent years, China's economic system has been constantly changing, and the company law 1993 has not changed much since it was enacted and implemented, so it is inevitable that it will be insufficient in the face of the current market economy. Is the formulation of the company law supported? The legal content should be relatively complete, with general basic norms and a reasonable legal framework? The basic idea of. In order to make the company law more perfect and adapt to the development of the current socialist economic system, we will summarize the shortcomings to fill some gaps in the current company law.

First, pay attention to the legal framework design, lack of specific operational design. The company law promulgated by 1993 pays more attention to the framework design. As far as limited liability companies and joint stock limited companies are concerned, they can't be said to be comprehensive, but they are also relatively comprehensive. ? Adhere to the company law with relatively complete content, universal basic legal norms and reasonable framework? It is not only the opinion of people, but also the drafting principle of the draft company law. The formulation of the company law complied with the economic development at that time, and there were basic framework rules for the establishment and operation of the company. However, the framework design has some shortcomings at the operational level, which are as follows:

There is a legal gap. For example, the company law does not clearly stipulate that the decision-making power is entrusted to other laws and regulations or authorized by the State Council. According to statistics, about eight laws and regulations in the Company Law were formulated by the State Council, and eight laws and regulations provide otherwise. The state holds an extraordinary shareholders' meeting, which is the right granted to minority shareholders by the Company Law.

However, the specific content of this right is not clear in the Company Law, and there is no clear stipulation in the Company Law on how long the shares hold this right, what kind of request is a legitimate request, and how to remedy when the request is not adopted. Once you encounter difficulties at the shareholders' meeting, you will have difficulties in solving them; Some? Doing nothing? Provisions, there is no corresponding legal consequences; Some systems have obstacles and doubts in design and implementation.

Second, pay attention to process design and ignore it? Actor? Design. Process means that the company law clearly stipulates the procedure and behavior process, but there is no specific obligation and responsibility of the designer.

Third, pay attention to organizational design, but ignore the mechanism and the condition design of the mechanism. The effective operation of a company should be based on a sound organizational structure, and the current company law pays more attention to organizational structure design. In the company law, there are clear provisions on the functions and composition of the company's operating executive organs, operating decision-making organs, power organs and supervision organs. However, the institutional mechanisms and mechanisms are somewhat weak.

2. The guiding ideology to be followed in the revision of company law.

To amend the company law, we should proceed from the nature of the company and the nature of the company. What is the nature of company law and company? First of all, the company law is a part of the commercial law, which mainly adjusts the internal and external relations of the company. It has certain legal compulsion, but the subjects of adjustment are equal. Therefore, there is no doubt that company law is defined as the field of private law. A company is an enterprise legal person. It is an enlarged individual, not a reduced society.

It can be seen from Article 42 of the General Principles of Civil Law that a company as a legal person is a commercial organization and can be regarded as a commercial subject. To modify the current company law from the nature of the company and the company law is to increase its arbitrary rules and reduce its mandatory rules. Under the condition of market economy, any investment has risks, and responsibility and risk are the fundamental principles of the company. Therefore, the revised company law should emphasize the adequacy of rules and the fairness of relevant parties. The guiding ideology of our revision of the company law is summarized as follows:

2. 1 adapt to the requirements of WTO and learn from successful legal experience. When drafting the company bill in China, the company has become a common enterprise form in the world, so all countries in the world have dabbled in the company bill. In order to fill the gap in China's company law, we should learn from the successful experiences such as the principle of limited liability of shareholders and the principle of equality of shareholders. We can modify the current articles of association of our country from the principles of reducing the minimum registered capital of enterprises, implementing the capital authorization system of joint stock limited companies, establishing the company standard and unveiling the mystery of the company, so as to enhance its practicability and comprehensiveness.

Implement simplified rules for limited liability companies and highlight the differences between joint-stock companies and limited liability companies. The company law of our country stipulates that the company is a joint stock limited company and a limited liability company, and its original intention is nothing more than giving the decision-making power of the company form to the investor. However, the current company law clearly distinguishes the difference between these two forms. Although some of them stipulate the organizational structure of Xiao Ye, they are still complicated. In order to make the characteristics of a limited liability company more prominent, can the Company Law be improved in the following aspects:

The current shareholders' meeting system of limited liability companies. Since July 1979 in China, Sino-foreign joint venture limited liability companies have been implementing the system that the board of directors is the authority of the company, and there is no shareholders' meeting of the superior organ above the board of directors. This system is different from the organizational system of limited liability companies stipulated in the current company law. Because it has been running for 20 years, we can sum up the relevant experience in this field and absorb useful things for the revision of the Company Law. For example, if all shareholders agree to a written resolution, there is no need to convene a general meeting of shareholders; Or, with the consent of all shareholders, a general meeting of shareholders may be convened without the convening procedure. Pay attention to the small number of shareholders in limited liability companies and design some ways to hold shareholders' meetings and discuss with shareholders. Narrow the scope of application of the board of supervisors and the board of directors of limited liability companies and limit them. The current company law only has executive directors and one or two supervisors, which should be amended appropriately.

2.2 The implementation of state-owned enterprise reform legislation and company legislation is consistent with the implementation stage of China's modern enterprise system.

Therefore, large and medium-sized state-owned enterprises implement corporatized production, which has made some explorations for state-owned enterprises to implement modern enterprise system and become people's understanding. Therefore, the company law contains many contents of the reform of state-owned enterprises. Under the background at that time, this is understandable. However, we can't help but notice. Due to the confusion between company legislation and state-owned enterprise reform legislation, many rules in the Company Law only stipulate the reform of state-owned enterprises or the subjects of state-owned investment, which leads to the disharmony between the rules and is not conducive to the implementation of the Company Law. Experience at home and abroad shows that the reform of state-owned enterprises is a problem with outstanding characteristics, and it is not conducive to solving these problems if it is carried out together with other legislation.

On the contrary, separate legislation is conducive to solving the special problems of state-owned enterprise reform. In this way, special issues related to the reform of state-owned enterprises, such as the protection of state-owned property, the placement of state-owned workers, the disposal of land use rights, the operating system of state-owned assets, and the exercise of state-owned shares, can be formulated as separate legislative documents, such as? State-owned enterprise reform law? . However, the revision of the company law is no longer tied to the reform of state-owned enterprises, and it is only necessary to improve the same rules that companies should follow, including the rules that should be followed after the state-owned enterprises are restructured into companies. As for how state-owned enterprises create conditions to become companies, there is no need to ask about the company law.

2.3 should fully reflect the spirit of China company law. It is the main spirit of China's company law to use legal forms to shape the legal personality of the company. On the premise of the separation of company ownership and company management, we can improve the legal person qualification of the company by perfecting the corporate governance structure.

3. Conclusion:

The perfection of company law is the guarantee for investors and creditors to exercise their rights, and it is also an important embodiment of adapting to the development of market economy and implementing effective macro-control. This paper only briefly describes the aspects that need to be improved in order to contribute to the continuous improvement of China's company law.

Guess you like:

1. The model essay of company law is free to download.

2. Model essay on company law

3. Reference topics of company law papers

4. Title of Company Law Thesis

5. Model essay on company law