On the Civil Liability of Promoters
|School||Southwestern University of Finance and Economics|
|Keywords||civil liability of promoter To-be-Formed company identity liability contract - acts liability|
Nowadays, the mostly national Company Law follows the efficiency, free principle of commercial activity, in the person of regulating company establishing, it emphasizes from beforehand regulation to afterwards regulation, and legal responsibility mechanism is the most important part of afterwards regulation. Owing to the especial legal status of promoters, the behavior of promoter directly determines the right and liability related to the company in the future and the investors, affects the safety of transaction and the stability of social and economic orders. To urge them to try their best to establish company, it is very important to regulate civil responsibility.Civil liability of company promoters is to balance the interests of the intending company, the investors and the third party, especially compensate damage that is infracted by company promoters. The Company Law of China has made great progress through the modification of 2005. Regrettably, there’s little on the provisions of civil liability of company promoters, so the modification can’t resolve its deficiency of unbalance and absence ultimately. The theories study of Company Law focus on discussing the capital system, the management, the social liability and interests of stockholders, the study of the system of creating company, especially the system of liability of company promoters, is very weak. Theory is the precursor of action, to perfect the Company Law, to provide more effective instruction and regulation for practice; it is necessary to study liability, especially the civil liability of promoter. The full text is divided into five parts.The chapter one mainly deals with promoter’s concept, characteristics, type, status, etc. Responsibility is the consequences. Then, based on this, this paper carried out on civil liability for promoters of defined. Promoters will then determine civil liability for the concept of their special features, and point out the type of promoter.The chapter two analyzes civil liability of promoter based on jurisprudence, civil law, economics and sociology. On the basis of jurisprudence, this paper is mainly to "power is subject to constraints" legal philosophy, justice and the two aspects of the analysis; Civil law is based on the prohibition of abuse of power and principle of faith and honesty. Economics is based on the economic efficiency and risk analysis; sociology is based on social order and social control theory. Practical significance of promoter’s civil liability lies in improving the sense of responsibility, protecting social interests of investors, enhancing the public welfare, strengthening of national monitoring.The chapter three compares the similarities and differences between civil liability of promoter. The German civil law countries are concerned about the establishment of the to-be company’s personality. While in Britain, the United States as the representative of the case law countries do not generally concerned about the establishment of the personality issue, but the company contracts directly from the first start of the promoters of related responsibilities. Based on researching on the model of Two Schools, this paper wants to give a better conclusion of the study.The chapter four mainly talks about the legal provisions in China’s capital adequacy responsibility, investor default responsibility, liability for damage to a third person and promoters liability separate comments and points out China’s current legal flaws and shortcomings.The chapter five firstly defines several concepts, based on this, the civil liability of the promoters one by one to define. Then the paper raises the idea of perfecting civil liability system of our country.This paper breaks through conventional theory and active legislation, discussing the promoter in all types of companies, not limiting in the Incorporated Company, in our country, it includes the promoter of the Limited Company and the Incorporated Company. The civil liability of promoter roots in its special legal status, namely it has something to do with the identity of promoters, so, it differs from the liability of investors or shareholders. On defining the promoter, the dissertation breaches the pattern of discussing the definition in the relation between the promoter and the to-be company, at the base of distinguishing between the company in formation and the company, points out the legal status of the promoter, and resolves the post academic perplexity. On studying the relation between the promoter and the to-be company, the dissertation considers the best method of defining the company in formation should be in the dynamic point of view, and in the precondition of sticking to "limited identity", it claims the company is succession to the formed company. On designing the system of civil liability of promoters, at the base of the conventional theory, namely the civil liability of promoters to the company, the civil liability of promoters to the third party, the dissertation also brings the identity liability between the promoters into the system of civil liability of promoters. Comparison of Two Schools summarized in this paper and national legislation that promoters’comprehensive civil liability system, including identity liability, behavior-contractual liability.