中英对照美国公司法概要幻灯片
美国公司法概要
公司的特征
公司的特征 nn CHARACTERISTICS 特征 uu LEGAL ENTITY uu OWNED BY SHAREHOLDERS uu MANAGEMENT tt DIRECTORS tt OFFICERS uu LIMITED LIABILITY
分类
nn CLASSIFICATIONS
uu COMMON STOCK
tt BASIC GROUP OF OWNERS tt VOTING RIGHTS
优先股
nn STOCK CLASSES uu PREFERRED STOCK优先股
tt RECEIVE SPECIFIED PRIORITIES
• ORDINARILY, RIGHT TO DIVIDEND BEFORE COMMON STOCK SHAREHOLDERS tt MAY BE “ATIVE”
揭开公司面纱续
nn “PIERCING CORPORATE VEIL” uu CIRCUMSTANCES CONSIDERED
tt USE OF CORP AS FACADE FOR CONTROLLING SHAREHOLDER’S OTHER FINANCIAL AFFAIRS
tt FRAUD, OR OTHER INJUSTICE
冒牌公司
nn DEFECTIVE INCORPORATION uu CORP BY ESTOPPEL 冒牌公司
tt THIRD PARTY CONDUCTS BUSINESS WITH ANOTHER BUSINESS
tt THIRD PARTY BELIEVES OTHER BUSINESS TO BE A CORP tt THIRD PARTY CANNOT HOLD “SHAREHOLDERS” (OWNERS) PERSONALLY LIABLE IF BUSINESS FAILED TO PROPERLY INCORPORATE
公司法英文对照(1)完整篇.doc
公司法英文对照（1）-; TABLE OF CONTENTS; 第一章：总则Chapter One：General Provisions; 第二章：有限责任公司的设立和组织机构Chapter Two：Establishment and Organs of Limited Liability Company; 第一节：设立Section One Establishment; 第二节：组织机构Section Two Organs; 第三节：国有独资公司Section Three. Wholly State-owned Company; 第三章：股份有限公司的设立和组织机构Chapter Three：Establishment and Organs of Joint Stock Limited Company; 第一节：设立Section One. Establishment; 第二节：股东大会Section Two. Shareholders’ general committee; 第三节：董事会、经理Section Three. Board Of Directors And General Manager; 第四节：监事会Section Four. Board Of Supervisors; 第四章：股份有限公司的股份发行和转让Chapter Four：Issue and Transfer of Shares of Joint Stock Limited Company; 第一节：股份发行Section One. Issue Of Shares; 第二节：股份转让Section Two. Transfer Of Shares; 第三节：上市公司Section Three. Listed Company; 第五章：公司债券Chapter Five：Company Bonds; 第六章：公司财务、会计Chapter Six：Financial and Accounting Affairs of Company; 第七章：公司合并、分立Chapter Seven：Merger and Division of Company; 第八章：公司破产、解散和清算Chapter Eight：Bankruptcy，Dissolution and Liquidation of Company; 第九章：外国公司的分支机构Chapter Nine：Branch of Foreign Company; 第十章：法律责任Chapter Ten：Legal Liabilities; 第十一章：附则Chapter Eleven：Supplementary Provisions; 第一章：总则Chapter One：General Provisions; 第一条：为了适应建立现代企业制度的需要，规范公司的组织和行为，保护公司、股东和债权人的合法权益，维护社会经济秩序，促进社会主义市场经济的发展，根据宪法，制定本法。
美国公司法中英文教程Chapter 3
Chapter 3THE CORPORATE STRUCTUREI. GENERAL ALLOCATION OF POWERS权利配置A. Traditional scheme传统模式: A "traditional" scheme forallocating power in the corporation (reflected in moststatutes) is as follows: [49]1. Shareholders股东: The shareholders act principallyby: (1) electing and removing directors; and (2)approving or disapproving fundamental or non-ordinarychanges (e.g., mergers). [49]2. Directors董事: The directors "manage" thecorporation’s business. That is, they formulatepolicy, and they appoint officers to carry out thatpolicy. [49]3. Officers高级管理人员: The corporation’s officersadminister the day-to-day affairs of the corporation,under the supervision of the board. [49]4. Modification修改: This traditional allocation ofpowers usually may be modified by the corporation whereappropriate. This is often done in the case of closelyheld corporations. [49]B. Powers of shareholders股东权利: The main powers of theshareholders are as follows:1. Directors选任和撤销董事: They have the power toelect and remove directors. [50]a. Election: Shareholders normally elect thedirectors at the annual meeting of shareholders.In other words, directors normally serve aone-year term. See Revised Model BusinessCorporations Act (RMBCA) get to approve ordisapprove of fundamental changes not in theordinary course of business (e.g., mergers,sales of substantially all of the company’sassets, or dissolution). [50]C. Power of directors董事权利: The directors"manage"the affairs of the corporation. [51]1. Shareho lders can’t give orders股东不能要求董事采取任何具体的经营行为: Thusshareholders usually cannot order the board ofdirectors to take any particular action. [51]2. Supervisory role监管角色: The board does notoperate the corporation day to day. Instead, itappoints officers, and supervises the manner inwhich the officers conduct the day-to-dayaffairs. [51]D. Power of officers高级管理人员的权利: Thecorporation’s officers are appointed by the board,and can be removed by the board. The officers carry outthe day-to-day affairs. [52]I.权力配置A．传统的权利配置模式：1、股东权利：选任和撤销董事；公式重大事项的决策权2、董事权利：通过选任该级管理人员负责公司的经营管理，制定公司的经营方针。
中英对照美国公司法概要幻灯片
A Brief Introduction to Corporate Law of USA 美国公司法概要吴越编译一、公司的特征与分类CHARACTERISTICSCLASSIFICATIONSCORPORATIONS 示范公司法⏹REVISED MODEL BUSINESS CORPORATION ACT (RMBCA)◆1984◆AS ADOPTED BY INDIVIDUAL STATES◆美国示范公司法（RMBCA），又译美国标准公司法。
美国各州都有自己的公司法，尤其以特拉华州公司法最有代表性。
公司的特征⏹CHARACTERISTICS 特征◆LEGAL ENTITY◆OWNED BY SHAREHOLDERS◆MANAGEMENT♦DIRECTORS♦OFFICERS◆LIMITED LIABILITY分类⏹CLASSIFICATIONS◆PUBLIC CORPORATION公众公司♦GOVERNMENTAL UNIT♦QUASI-GOVERNMENT ENTITY◆PRIVATE CORPORATION私人公司♦FOR PROFIT BUSINESS♦NON-PROFIT ORGANIZATION股份公司与有限公司⏹CLASSIFICATIONS◆PUBLICLY HELD股份公司（开放式公司）♦FREELY TRADED SHARES♦PUBLIC MARKET FOR SHARES(WHETHER OR NOT LISTED ONNATIONAL EXCHANGE)◆CLOSELY HELD有限公司（封闭式公司）♦SMALL NUMBER OF SHAREHOLDERS♦RESTRICTIONS ON TRANSFER OFSHARES职业性公司（律师事务所、会计师事务所等）⏹CLASSIFICATIONS◆PROFESSIONAL CORPORATIONS♦“PC” OR “SC” 职业性公司♦MEMBERS OF A GIVENPROFESSION ARESHAREHOLDERS♦NO LIMITED LIABILITY FORPROFESSIONAL MALPRACTICE依据所得税缴纳方式的公司分类⏹CLASSIFICATIONS◆INCOME TAX STATUS所得税地位♦“C” CORPORATION “C”类公司•INCOME IS TAXED AT THECORPORATION LEVEL•SHAREHOLDERS TAXED ONDIVIDENDS THEY RECEIVE♦“S” CORPORATION “S”类公司•NO TAX AT CORPORATION LEVEL•PROFITS PASS THROUGH TO二、公司的设立过程INCORPORATION PROCESS公司的设立⏹INCORPORATION PROCESS 公司设立过程◆INCORPORATORS♦RESPONSIBLE FOR CREATION OFCORPORATION⏹ARTICLES OF INCORPORATION 设立章程♦SIGNED BY INCORPORATOR(S)♦FILED WITH STATE (WI –DEPARTMENT OF FINANCIALINSTITUTIONS)♦EXISTENCE BEGINS WHEN ACCEPTED公司章程⏹ARTICLES OF INCORPORATION 章程◆NAME♦MUST SPECIFICALLY DESIGNATEAS CORPORATION (“CORP.”,“COMPANY”, “INC.”, “LTD”)♦CANNOT BE DECEPTIVELYSIMILAR TO ANOTHERCORPORATION’S NAME公司章程续⏹ARTICLES OF INCORPORATION 章程◆DURATION♦PERPETUAL, OR♦LIMITED PERIOD◆PURPOSE♦SPECIFIC (OR LIMITED)♦ANY LAWFUL BUSINESS◆NUMBER OF AUTHORIZED SHARES公司章程续⏹ARTICLES OF INCORPORATION 章程◆REGISTERED OFFICE AND AGENT♦OFFICE MUST BE IN STATE♦AGENT MUST BE RESIDENT OFSTATE◆NAME AND ADDRESS OFINCORPORATOR(S)内部管理文件⏹BYLAWS 内部管理规则◆DETAILED RULES THAT CONTROLINTERNAL MATTERS OFCORPORATION◆USUALLY, BOTH BOD ANDSHAREHOLDERS HAVE POWER TOCREATE, AMEND OR REPEAL公司设立的效力⏹CORPORATE POWERS 公司的权力、公司设立的效力◆GRANTED BY STATE LAW◆EXAMPLES♦PERPETUAL EXISTENCE♦FILE LAWSUITS♦OWN PROPERTY♦MAKE CONTRACTS♦PERFORM ACTS NECESSARY TOCONDUCTING LAWFUL BUSINESS越权规则⏹“ULTRA VIRES” 越权规则◆ACTS THAT ARE BEYOND CORPORATEPOWERS OR PURPOSE STATED INARTICLES OF INCORPORATION◆FOLLOWING CAN SUE TO PREVENT♦SHAREHOLDER♦CORPORATION, AGAINST OFFICERSOR DIRECTORS♦STATE ATTORNEY GENERAL按设立地分类⏹DOMESTIC CORPORATION 本州公司⏹FOREIGN CORPORATION 外州公司◆DOING BUSINESS IN ANY STATE OTHERTHAN STATE IN WHICH INCORPORATED◆REGISTERED AGENT AND OFFICE◆CANNOT SUE IN THAT STATE UNTILOBTAINING “CERTIFICATE OFAUTHORITY”⏹ALIEN CORPORATION 外国公司◆INCORPORATED IN A FOREIGN公司发起人⏹PROMOTERS 发起人◆PREINCORPORATION CONTRACTS♦CORPORATION NOTAUTOMATICALLY LIABLE♦TO BE LIABLE, MUST “ADOPT”THE PROMOTER’S CONTRACTAFTER COMING INTO EXISTENCE先公司合同⏹PROMOTERS 发起人◆PREINCORPORATION CONTRACTS♦PROMOTER IS PERSONALLY LIABLE♦AVOIDING LIABLILITY•IRREVOCABLE OFFER TO CORP•SPECIFIC CONTRACT TERMS•PROMOTER, THIRD PARTY ANDCORP ENTER INTO “NOVATION”•RELEASE FROM THIRD PARTY公司设立瑕疵⏹DEFECTIVE INCORPORATION 设立瑕疵◆“DE JURE” –IN TOTAL COMPLIANCEWITH STATE STATUTE◆“DE FACTO” 事实公司♦ELEMENTS:•EXISTING STATE STATUTE•GOOD FAITH EFFORT TO COMPLY•CONDUCTING BUSINESS A CORP♦ONLY THE STATE CAN CHALLENGECORP’S EXISTENCE冒牌公司⏹DEFECTIVE INCORPORATION◆CORP BY ESTOPPEL 冒牌公司♦THIRD PARTY CONDUCTS BUSINESSWITH ANOTHER BUSINESS♦THIRD PARTY BELIEVES OTHERBUSINESS TO BE A CORP♦THIRD PARTY CANNOT HOLD“SHAREHOLDERS” (OWNERS)PERSONALLY LIABLE IF BUSINESSFAILED TO PROPERLY INCORPORATE揭开公司面纱⏹“PIERCING CORPORATE VEIL” PERSONAL LIABILITY IMPOSED UPON SHAREHOLDERS◆CIRCUMSTANCES CONSIDERED♦UNDERCAPITALIZATION♦FAILURE TO OBSERVE FORMALITIES♦NONPAYMENT OF DIVIDENDS♦SIPHONING OF FUNDS BYCONTROLLING SHAREHOLDER♦NONFUNCTIONING OF OTHER揭开公司面纱续⏹“PIERCING CORPORATE VEIL”◆CIRCUMSTANCES CONSIDERED♦USE OF CORP AS FACADE FORCONTROLLING SHAREHOLDER’SOTHER FINANCIAL AFFAIRS♦FRAUD, OR OTHER INJUSTICE三、公司的融资结构FINANCIAL STRUCTURE融资结构：公司证券分类⏹“SECURITY”证券◆STOCK (EQUITY SECURITY)股票♦OWNERSHIP INTEREST◆BOND (DEBT SECURITY)债券♦HOLDER IS A CREDITOR OFCORPORATION股东权益⏹RIGHTS OF SHAREHOLDER◆DIVIDENDS◆PARTICIPATE IN CONTROL (VOTEON MAJOR ISSUES ATSHAREHOLDERS’ MEETING)◆SHARE OF NET ASSETS UPONLIQUIDATION OF CORPORATION股票分类：普通股⏹STOCK (SHARES) CLASSES股票分类◆COMMON STOCK♦BASIC GROUP OF OWNERS♦VOTING RIGHTS优先股⏹STOCK CLASSES◆PREFERRED STOCK优先股♦RECEIVE SPECIFIED PRIORITIES•ORDINARILY, RIGHT TO DIVIDENDBEFORE COMMON STOCKSHAREHOLDERS♦MAY BE “CUMULATIVE”•RIGHT TO DIVIDEND CARRIESFORWARD (AND ACCUMULATES)IF NOT PAID IN CURRENT YEAR优先股续⏹STOCK CLASSES◆PREFERRED STOCK♦MAY BE “CALLABLE”•CORP CAN PURCHASE FROMSHAREHOLDER AT CORP’SOPTION•MAY BE “CONVERTIBLE” INTOCOMMON STOCK股票的其他分类⏹STOCK CATEGORIES◆“AUTHORIZED” –CORP MAY ISSUE UP TO THISAMOUNT AS STATED IN ARTICLES OFINCORPORATION 授权发行的股份◆“ISSUED” –SOLD OR OTHERWISETRANSFERRED BY CORPORATION TOSHAREHOLDERS 已发行股份◆“OUTSTANDING” –HELD BY SHAREHOLDERSAT ANY GIVEN POINT IN TIME 股东持有的股份◆“TREASURY” –PREVIOUSLY ISSUED, BUTHAVE BEEN REACQUIRED BY CORP 公司回购的股份（无表决权）取得股份的对价（方式）⏹CONSIDERATION FOR STOCK◆CASH现金◆PROPERTY财产◆PROMISSORY NOTE可转让的票据◆SERVICES PERFORMED已完成服务◆PROMISE TO PERFORM SERVICESIN THE FUTURE承诺的服务认股协议⏹PRE-INCORPORATION SUBSCRIPTION AGREEMENTS◆OFFER BY SHAREHOLDER TO BUYSTOCK IN CORP NOT YET FORMED◆RMBCA TREATS AS IRREVOCABLEOFFER FOR 6 MONTHS AFTER DATE OFOFFER♦WISCONSIN –OFFER ISAUTOMATICALLY ACCEPTED BYCORP UPON FORMATION OF CORP“发水股份”（出资瑕疵）⏹“WATERED STOCK” 发水股票◆STOCK THAT HAS BEEN ISSUED FORINADEQUATE CONSIDERATION♦EXAMPLES•OVERVALUED REAL ESTATE•PROMISE OF FUTURE SERVICESTHAT IS NOT PERFORMED公司债券的种类⏹BOND 有担保债券◆A LOAN OF MONEY TO CORP◆HOLDER ENTITLED TO PERIODICPAYMENT OF INTEREST AND RETURNOF PRINCIPAL WHEN BOND “MATURES”◆SECURED BY SPECIFIC CORPORATEPROPERTY⏹DEBENTURE 无担保债券◆UNSECURED LOAN, SO THAT HOLDER ISA GENERAL CREDITOR OF CORP债券承销协议⏹INDENTURE债券承销协议◆AGREEMENT BETWEEN CORPISSUING BOND AND THEFINANCIAL INSTITUTIONADMINISTERING THE BOND公司证券转让：记名股票⏹TRANSFER OF SECURITIES证券转让◆STOCK CERTIFICATES股权证书♦REGISTERED记名式•TRANSFERRED BY OWNERSIGNING ON CERTIFICATE,NAMING TRANSFEREE, ANDRETURNING TO CORP•CORP ISSUES NEW CERTIFICATE INNAME OF TRANSFEREE不记名股票⏹TRANSFER OF SECURITIES◆STOCK CERTIFICATES♦BEARER不记名式•NO SPECIFIC SHAREHOLDERNAMED ON CERTIFICATE•SHAREHOLDER IS WHOEVERHAS PHYSICAL POSSESSIONOF THE CERTIFICATE上市公司股份转让⏹TRANSFER OF SECURITIES◆MODERN PRACTICE FOR PUBLICLYTRADED CORPORATIONS 上市公司股票♦NO PHYSICAL CERTIFICATE♦OFTEN HELD IN “DEPOSITORY”AND/OR IN BROKER ACCOUNT, WHOKEEP ACCOUNT RECORDS (RATHERTHAN PYSICAL CERTIFICATES)公司红利分配方式⏹DIVIDENDS 红利◆THREE TYPES♦CASH现金♦PROPERTY财产♦STOCK股票◆NO AUTOMATIC RIGHT TODIVIDEND IN A GIVEN YEAR非法红利⏹DIVIDENDS◆ILLEGAL DIVIDENDS非法分红♦CORP INSOLVENT, OR ISSUINGWOULD CAUSE CORP TOBECOME INSOLVENT♦DIRECTORS WHO APPROVE MAYBE PERSONALLY LIABLE三、公司的管理MANAGEMENT公司的管理层次⏹SHAREHOLDERS股东◆OWNERS◆PARTICIPATE IN MAJOR DECISIONS⏹BOARD OF DIRECTORS董事◆POLICY DECISIONS◆ELECT OFFICERS◆DECIDE TO ISSUE DIVIDENDS⏹OFFICERS经理、高管◆DAY-TO-DAY OPERATION OR BUSINESS股东大会⏹SHAREHOLDERS◆SHAREHOLDERS MEETING♦AT LEAST ANNUALLY♦MUST BE GIVEN WRITTENNOTICE OF PLACE AND TIME♦ELECT DIRECTORS♦VOTE ON OTHER MAJOR ISSUES股东大会的要求⏹SHAREHOLDERS MEETING◆QUARUM 百分比要求♦MINIMUM NUMBER OFSHAREHOLDERS (OR RIGHT TO VOTESHARES) THAT MUST BE PRESENT ATMEETING IN ORDER TO CONDUCTBUSINESS◆MAY TAKE ACTION WITHOUT MEETING,IF UNANIMOUS WRITTEN CONSENT OFSHAREHOLDERS累积投票制⏹SHAREHOLDERS MEETING◆CUMULATIVE VOTING累积投票♦ONLY FOR ELECTION OF DIRECTORS♦STATE LAW OR BY-LAWS MUSTPERMIT♦THE NUMBER OF VOTES EACHSHAREHOLDER RECEIVES (USUALLYONE PER SHARE) MULTIPLIED BY THENUMBER OF DIRECTORS BEINGELECTED AT THAT MEETING表决权代理与表决权信托⏹SHAREHOLDERS MEETING◆PROXY VOTING 表决权代理♦SHAREHOLDER DESIGNATES A PARTY WHOCAN VOTE ON BEHALF OF SHAREHOLDER(OFTEN CORPORATE MANAGEMENT)◆VOTING TRUST表决权信托♦SHAREHOLDERS ASSIGN SHARES TOTRUSTEE, WHO VOTES ACCORDING TOTRUST AGREEMENT♦SHAREHOLDERS STILL RECEIVE DIVIDENDS投票协议⏹SHAREHOLDERS MEETING◆VOTING AGREEMENT 投票协议♦CONTRACT BETWEENSHAREHOLDERS TO CAST THEIRVOTES IN A CERTAIN WAY优先认股权⏹SHAREHOLDERS MEETING◆PREEMPTIVE RIGHTS优先认购权♦RIGHT OF SHAREHOLDER TOPURCHASE AMOUNT OF SHARESIN NEW ISSUANCE SO THATPERCENTAGE OWNERSHIPINTEREST IS MAINTAINED股东查阅权⏹SHAREHOLDER’S RIGHT TO REVIEW CORPORATE RECORDS股东查阅权◆MUST BE CURRENT SHAREHOLDER◆WRITTEN DEMAND STATING THEPURPOSE◆MADE IN GOOD FAITH◆PROPER PURPOSE董事会⏹BOARD OF DIRECTORS 董事会◆ACT AS A GROUP, NOT INDIVIDUALLY◆MAY HAVE ONLY ONE DIRECTOR◆MAY HAVE “STAGGERED TERMS”◆（限制性条款，绊脚石条款）◆MID-TERM VACANCY USUALLY FILLEDBY BOD UNTIL NEXT SHAREHOLDERMEETING。
公司法(英文版)
新《公司法》(英文版法条)Company Law of the People's Republic of China(The Company Law of the People’s Republic of China has been amended and adopted by the18th meeting of the Standing Committee of the Tenth National People's Congress on October27,2005.This Law,as amended, is hereby promulgated and will come into force on January1,2006.)Chapter One:General Provisions.1Chapter Two:Incorporation and Organizational Structure of a Limited Liability Company.6Section One Incorporation.6Section Two Organizational Structure.9Section Three Special Provisions on One-Person Limited Liability Companies.14Section Four Special Provisions on Wholly State-owned Companies.15Chapter Three:Share Transfer of a Limited Liability Company.16Chapter Four:Establishment and Organizational Structure of a Joint Stock Limited Company.18Section One Establishment18Section Two General Meeting of Shareholders.23Section Three Board of Directors and General Manager25Section Four Board of Supervisors.27Chapter Five Issue and Transfer of Shares of Joint Stock Limited Companies.28Section One Issue of Shares.28Section Two Assignment Of Shares.31Chapter Six:Qualifications and Obligations of Directors,Supervisors and Senior Officers.32Chapter Seven:Company Bonds.35Chapter Eight:Financial and Accounting Affairs of Company.36Chapter Nine:Merger and Division of Company,Increase and Decrease of Registered Capital38Chapter Ten:Dissolution and Liquidation of Company.40Chapter Eleven:Branch of Foreign Company.42Chapter Twelve:Legal Liabilities.43Chapter Thirteen:Supplementary Provisions.47Chapter One:General ProvisionsArticle1This Law is enacted in order to standardize the organization and activities of companies,to protect the legitimate rights and interests of companies,shareholders and creditors,to maintain the socio-economic order and to promote the development of the socialist market economy.Article2The term'company'referred to in this Law means a limited liability company or a joint stock limited company incorporated within the territory of the People's Republic of China in accordance with this Law.Article3A company is an enterprise legal person that shall enjoy the right to the entire independent property of the legalperson.A company shall be liable for its debts to the extent of all its assets.In the case of a limited liability company,shareholders shall assume liability towards the company to the extent of their respective capital contributions.In the case of a joint stock limited company,shareholders shall assume liability towards the company to the extent of their respective shareholdings.Article4The shareholders of a company shall enjoy such rights as benefiting from assets of the company,making major decisions and selecting managerial personnel in accordance with the law.Article5In conducting its business,a company must abide by laws and administrative rules and regulations,observe social morals and business ethics,conduct businesses in good faith,subject itself to the supervision of the government and the public and fulfill social responsibilities.The company's lawful rights and interests are protected by law and shall not be infringed upon.Article6A company shall apply to the company registration authority for establishment panies meeting the conditions set by this Law shall be registered as limited liability companies or joint stock limited companies;while companies failing to meet the conditions set by this Law shall not be registered as limited liability companies or joint stock limited companies.Where laws,administrative rules and regulations provide that incorporation of companies must be subject to examination and approval,the procedures of examination and approval shall be completed according to law prior to the registration of such companies.The public may inquire about registration items from the company registration authority.The company registration authority shall provide such inquiry service.Article7The company registration authority shall grant registration and issue a business license to a company that is established in accordance with the law.The date of the issuance of the company business license shall be the date of the incorporation of the company.The business license shall specify the name and domicile of the company,registered capital,paid-in capital, business scope,the name of the legal representative,etc.In the event of any change to the registration item of the business license,a company shall undergo alteration registration procedures with the company registration authority in accordance with the law,after which a new business license shall be issued to the company.Article8A limited liability company established according with this Law must clearly indicate the words'limited liability company'in its name.A joint stock limited company established according to this Law must clearly indicate the words'joint stock limited company'or‘joint stock company’in its name.Article9If a limited liability company is to be converted into a joint stock limited company,it shall satisfy the requirements for a joint stock limited company stipulated by this Law.If a joint stock limited company is to be converted into a limited liability company,it shall satisfy the requirements for a limited liability company stipulated by this Law.Where a limited liability company is converted into a joint stock limited company or vice versa,the claims and debts of the original company shall be succeeded to by the company into which it is converted.Article10A company's domicile shall be the place where its main administrative organization is located.Article11Articles of association must be formulated in accordance with the law when a company is incorporated.A company's articles of association shall have binding force on the company,its shareholders,directors, supervisors and senior officers.Article12A company's scope of business shall be defined in its articles of association and registered in accordance with the law.A company may change its scope of business by amending its articles of association but shall register such amendments with the company registration authority.Items within the company's business scope that are subject to verifications under laws,administrative rules and regulations shall be approved in accordance with the law.Article13The legal representative of a company may be represented by the chairman,executive director or manager of a company in compliance with its articles of association and registered in accordance with the law.In the event of any change of the legal representative of a company,such change shall be registered in accordance with the law.Article14A company may establish branches.The company,in establishing its branch(es),shall conduct establishment registration procedures with the company registration authority and obtain the business license(s).The branches shall not possess the status of enterprise legal persons and whose civil liabilities shall be borne by the company.A company may establish subsidiaries,which shall possess the status of enterprise legal persons,and shall independently bear civil liabilities in accordance with the law.Article15A company may invest in other enterprises,however,unless otherwise stipulated by the law,the company making such investment shall not bear joint and several liability for the debts of the enterprise in which the company invests.Article16Investments in other enterprises or provisions of security by a company shall be determined by its board ofdirectors,shareholders meeting or general meeting of shareholders in compliance with its articles of association.Where the limit of the aggregate amount of investment or security extended by a company or,the amount of investment or security extended in each case is set out in the articles of association,the actual amount of investment or security shall not exceed such limit.Security provided by a company to its shareholders or actual controller shall be determined by the shareholders meeting or the general meeting of shareholders of the company.The shareholders described in the preceding paragraph or the shareholders dominated by the actual controller described in the preceding paragraph shall not participate in the voting process on the matters described in the preceding paragraph.The vote on such matters shall be adopted by more than half of all the other shareholders attending the meeting.Article17Companies must protect the lawful rights and interests of their staff and workers,sign labor contracts with them and cover them with social insurances in accordance with the law,and strengthen labor protection so as to achieve safety in production.Companies shall apply various forms to strengthen professional education and on-the-job training of their staff and workers so as to improve their skills and capabilities.Article18Company's staff and workers shall,in accordance with the Trade Union Law of the People’s Republic of China, organize a trade union to carry out the trade union activities and protect the lawful rights and interests of the staff and workers.The company shall provide its trade union with conditions necessary for carrying out its activities.The trade union may represent the staff and workers to enter into a collective contract with the company in respect of the remuneration,work hours,welfare,insurance,labor security,etc.in accordance with the law.Companies shall,through the congress of the workers and staff members or other forms,practice democratic management in accordance with the provisions of the Constitution and relevant laws.A company shall seek advices from its trade union when discussing and deciding upon important issues on the restructuring or operation of the company,or formulating important rules and regulations and shall,through the congress of the workers and staff members or other forms,seek advice and suggestions from its staff and workers.Article19The organizations of the Communist Party of China may be established in companies and carry out their activities in accordance with the Constitution of the Communist Party of panies shall provide the organizations of the Communist Party of China with conditions necessary for carrying out their activities.Article20The shareholders of a company shall exercise their shareholders’rights in compliance with laws, administrative rules and regulations as well as the articles of association of the company,shall not abuse their shareholders’rights to injure the interests of the company or other shareholders,or take advantage of the company’s independent status or the limited liability of shareholders to injure the interests of the company’screditors.Where the abuse of shareholders’rights causes any loss to the company or other shareholders,such abusive shareholder shall be liable for compensation in accordance with the law.Where shareholders of a company take advantage of the company’s independent status or the limited liability of shareholders to disregard debts and seriously injures the interests of the company’s creditors,such shareholders shall bear joint and several liability for the debts of the company.Article21The controlling shareholders,actual controllers,directors,supervisors or senior officers of a company shall not take advantage of their affiliations with others in an attempt to harm the company’s interests and,where any losses are incurred in violation hereof,shall be liable for compensation.Article22Any resolution against laws and administrative rules and regulations that is adopted by the shareholders meeting,the general meeting of shareholders or the board of directors of a company shall be null and void.Where the convening of shareholders meeting,general meeting of shareholders or board of directors of a company or the voting method violates laws,administrative rules and regulations or the articles of association of the company,or the resolution thereof contravenes the articles of association of the company,shareholders may,within sixty(60)days of the resolution,apply to the people’s court for revocation.Where shareholders file suit in accordance with the provisions of the preceding paragraph,a people’s court may,at the company’s request,order the shareholders to provide relevant security.Where the company has effected alteration registration according to the resolution of shareholders meeting, general meeting of shareholders or board of directors,the company shall,after the people’s court declares such resolution null and void or revokes the same,shall apply to the company registration authority for cancellation of its alteration registration.Chapter Two:Incorporation and Organizational Structure of a Limited Liability CompanySection One IncorporationArticle23The following conditions shall be fulfilled for the incorporation of a limited liability company:(1)The number of shareholders conforms to the statutory quorum;(2)The capital contributions of the shareholders reach the statutory minimum amount of capital;(3)The shareholders have jointly formulated the articles of association of the company;(4)The company has a name and an organizational structure established in compliance with the requirements for a limited liability company;and(5)The company has a domicile.Article24A limited liability company shall be incorporated by not more than fifty(50)shareholders.Article25The articles of association of a limited liability company shall specify the following particulars:(1)the name and domicile of the company;(2)the scope of business of the company;(3)the registered capital of the company;(4)the names or titles of the shareholders;(5)the method,amount and time of capital contributions by the shareholders;(6)the organization of the company,its method of creation,functions and powers and therules of procedure;(7)the legal representative of the company;(8)other items which the shareholders deem necessary to be specified.Shareholders shall sign and execute the article of association of the company.Article26The registered capital of a limited liability company shall be the amount of the paid-up capital contributions of all its shareholders as registered with the company registration authority.The amount of the initial investment contributed by all shareholders shall not be lower than twenty percent(20%)of the registered capital or the minimum amount prescribed by the law,the remaining of which shall be fully paid up within two years of the establishment of the company.In the case of an investment company,the remaining amount of the registered capital may be paid up within five years of the establishment of the company.The minimum amount of the registered capital of a limited liability company shall be RMB30,000.Where laws and administrative regulations provide for more than the minimum amount,such provisions shall apply.Article27Except for assets forbidden to be used as contribution by laws and administrative regulations,a shareholder may make its capital contributions to a company in currency or by contributing such non-currency property as material objects,intellectual property rights and land-use rights that can be evaluated in the form of currency and transferred in accordance with the law.The non-currency property to be contributed as capital shall undergo an asset valuation and verification,and shall not be overvalued or undervalued.Where there are other provisions of laws and administrative regulations on the valuation and verification of non-currency property,such provisions shall apply.The amount of the capital contributions in currency shall not be lower than thirty percent(30%)of the amount of the registered capital of the limited liability company.Article28Each shareholder shall make in full the amount of the capital contribution subscribed for under the articles of association of the company.Where a shareholder makes its capital contribution in currency,it shall deposit the full amount of such capital contribution in currency in the bank account opened by the limited liability company to be established.Where a shareholder makes its capital contribution in the form of non-currency property,the property rights therein shall be transferred in accordance with legally prescribed procedures.Shareholders failing to make full capital contributions they have subscribed for in accordance with the preceding paragraph shall,they shall,in addition to making the contributions in full,be liable for breach of contract towards the shareholders who have made full capital contributions.Article29After all shareholders have made their capital contributions in full,such contributions must be verified by a statutory capital verification institution which shall issue capital verification certificates.Article30After the initial capital contributions of the shareholders have been verified by a statutory capital verification institution,application shall be made to the company registration authority for registration of the incorporation of the company by a representative designated by all the shareholders or by an agent jointly entrusted by them, who shall submit such documents as an application for registration,the articles of association and the capital verification certificate.Article31Where,after the incorporation of a limited liability company,it is discovered that the actual value of the non-currency property contributed as capital is notably less than the value stated in the articles of association, the shareholders that made such contributions shall make up the difference.Those who are shareholders at the time of the incorporation of the company shall bear joint and several liability therefor.Article32After a limited liability company has been incorporated,it shall issue capital contribution certificates to its shareholders.A capital contribution certificates shall specify the following items:(1)the name of the company;(2)the registration date of the company;(3)the registered capital of the company;(4)the name or title of the shareholder,the amount and date of its capital contribution;(5)the serial number of the capital contribution certificate and the date of its verification and issuance.A capital contribution certificate shall bear the seal of the company on it.Article33A limited liability company shall prepare a roster of its shareholders with the following items therein:(1)the names or titles and domiciles of the shareholders;(2)the amounts of capital contributions of the shareholders;and(3)the serial numbers of the capital contribution certificates.The shareholders recorded in the roster of shareholders may claim and exercise the right of shareholders on the strength of the roster of shareholders.The company shall register the names of shareholders and the amount of capital contributions of the shareholders with the company registration authority and,in the event of any change thereof,apply foralteration registration.Unless duly registered,the above-mentioned items and any changes thereof shall not be a defense against a third party.Article34A shareholder shall have the right to view the articles of association,the minutes of shareholders meetings, resolutions of board of directors and board of supervisors and the financial and accounting reports of the company.Shareholders may view the accounting books and reports of the company.For this purpose,they shall submit a written request and state reasons.Where the company reasonably believes that shareholders have unjust purposes in viewing the accounting books and reports which may harm the legal rights and interests of the company,the company may refuse such request and shall,within fifteen(15)days of such request,reply in written form and state reasons.Given such,shareholders may apply to the people’s court for an order under which the company shall provide the shareholders with such references.Article35Unless otherwise agreed upon by all shareholders,shareholders shall draw dividends in proportion to their actual capital contributions and,where a company increases capital,shall have priority in subscription for new shares in proportion to their actual contributions.Article36Once a company is registered,its shareholders shall not withdraw their capital contributions.Section Two Organizational StructureArticle37The shareholders meeting of a limited liability company shall be composed of all the shareholders.The shareholders meeting shall be the organ of power of the company and shall exercise its functions and powers in accordance with this Law.Article38The shareholders meeting shall exercise the following functions and powers:(1)to decide on the business policy and investment plan of the company;(2)to elect and recall directors and supervisors whose posts are not taken by the representatives of the staff and workers,and to decide on matters concerning the remuneration of directors and supervisors;(3)to examine and approve reports of the board of directors;(4)to examine and approve reports of the supervisory board or supervisors;(5)to examine and approve the annual financial budget plan and final accounts plan of the company;(6)to examine and approve plans for profit distribution of the company and plans for making up losses;(7)to adopt resolutions on the increase or reduction of the registered capital of the company;(8)to adopt resolutions on the issuance of company bonds;(9)to adopt resolutions on matters such as the merger,division,transformation,dissolution and liquidation of the company;(10)to amend the articles of association of the company;(11)to exercise other functions and powers provided for in the articles of association.Where a unanimous consent on the matters described above is achieved in writing by shareholders,the company may directly make decisions that shall be signed and executed by all shareholders instead of convening a shareholders meeting.Article39The first meeting of the shareholders of a company shall be convened and presided over by the shareholder who has made the biggest capital contribution to the company and shall exercise its functions and powers in accordance with this Law.Article40Shareholders meetings shall be divided into regular meetings and interim meetings.Regular shareholders meetings shall be convened on time as stipulated by the articles of association of the company.Interim shareholders meetings may be convened upon proposal made by shareholders representing more than one-tenth of voting rights or by more than one-third of directors,or at the request of board of supervisors or the supervisors of a company absent a board of supervisors.Article41Where a limited liability company has a board of directors,its shareholders meeting shall be convened by the board of directors and presided over by the chairman of the board.Where the chairman of the board is unable to or does not perform his function,the meeting shall be presided over by a vice-chairman.Where the vice-chairman is unable to or does not perform his function,the meeting shall be presided over by a director jointly nominated by more than half of the directors.Where a limited liability company does not form a board of directors,the shareholders meetings shall be convened and presided over by the executive director.Where the board of directors or executive director cannot or does not perform its function,the shareholders meeting shall be convened and presided over by the board of supervisors or the supervisor in the absence of a board of supervisors.Where the board of supervisors or supervisor cannot or does not perform its function,the meeting shall be convened and presided over by shareholders representing more than one-tenth of the voting rights.Article42All shareholders shall be notified fifteen(15)days prior to the convening of a shareholders meeting,unless otherwise stipulated by the articles of association or agreed upon by all shareholders.The shareholders meeting shall prepare minutes regarding the decisions on matters considered at the meeting, which shall be signed by the shareholders present at the meeting.Article43Shareholders shall exercise their voting rights at the shareholders meeting in proportion to their capital contributions,unless otherwise stipulated by the articles of association.Article44Except as provided for in this Law,the rules of deliberation and voting procedures of the shareholders meetingshall be stipulated by the articles of association of the company.Resolutions of the shareholders meeting on the increase or reduction of the registered capital,the division, merger,dissolution,or transformation of the company must be adopted by shareholders of the company representing two-thirds or more of the voting rights.Article45Except as otherwise provided for in Article51of this Law,a limited liability company shall have a board of directors,which shall be composed of three to thirteen members.The members of the board of directors of a limited liability company invested in and established by two or more State-owned enterprises,or by two or more other State-owned investment entities shall include representatives of the staff and workers of the company.The members of the board of directors of other limited liability companies may also include representatives of the staff and workers.Such representatives of the staff and workers shall be democratically elected by the workers and staff members of the company through the congresses or assemblies of the staff and workers or other forms.A board of directors shall have a chairman and may have a vice-chairman.The method for the creation of the chairman and vice-chairmen shall be stipulated in the articles of association of the company.Article46The term of the directors shall be prescribed by the articles of association,provided that each term may not exceed three(3)years.A director may continue to serve his post if he is re-elected upon the expiration of his term.Where a new elect is not yet available upon expiration of a director’s term,or the number of the directors on the board is less than the quorum due to the resignation of a director within his term,such director,before the new elect takes his office,shall continue the performance of his duties in accordance with laws, administrative regulations and the articles or association.Article47The board of directors is accountable to the shareholders meeting and shall exercise the following powers:(1)being responsible for convening shareholders meetings and presenting reports thereto;(2)implementing resolutions adopted by the shareholders meeting;(3)determining the company's operational plans and investment programs;(4)preparing annual financial budget plans and final accounting plans of the company;(5)preparing profit distribution plans and plans to cover company losses;(6)preparing plans for increasing or reducing registered capital of the company or issuing company bonds;(7)drafting plans for merger,division,change of corporate form or dissolution of the company;(8)determining the structure of the company's internal management;(9)appointing or removing the general manager of the company,appointing or removing,upon the general manager's recommendation,deputy managers of the company and the officer in charge of finance,and determining the remuneration for those officers;(10)formulating the basic management scheme of the company;(11)exercising other powers stipulated by the articles of association.Article48A meeting of the board of directors shall be convened and presided over by the chairman.Where the chairman is unable to or does not perform his duties,the meeting shall be convened and presided over by the。
company law 1公司法(双语PPT)
Company Law
§ 1 General Provisions § 2 Incorporation and Organization of a Limited Liability Company § 3 Incorporation and Organization of a Joint Stock Limited Company § 4 Issuance and Transfer of Shares of a Joint Stock Limited Company § 5 Merger and Division of a Company; Increase and Deduction of Registered Capital § 6 Dissolution and Liquidation of a Company
• Boards of Directors： Directors： • Boards of Supervisors： Supervisors： • legal person： person：
October 27, 2005, the People's Republic of China adopted a new Company Law. January 1, 2006 ,Effective date
Case 1
Walkovazky (P) was seriously injured when he was hit by a taxicab owned by Seon Cab Corporation (D). The individual defendant, Carlton (D), is the stockholder of the corporations, including Seon, each of which has two cabs registered in its name and each cab has only minimum liability insurance($10,000) required by law. Basically, each corporation has little additional capital other than the two cabs. Walkovszky(P) brought suit and sought to hold Carlton(D) and the other shareholders personally liable for his injury, alleging that the various corporations were operated as a single entity, unit and enterprise, and that the entire structure was a sham to avoid liability.
美国公司法概要
公司章程续
nn ARTICLES OF INCORPORATION 章程 uu REGISTERED OFFICE AND AGENT
tt OFFICE MUST BE IN STATE
tt AGENT MUST BE RESIDENT OF STATE uu NAME AND ADDRESS OF INCORPORATOR(S)
公司的设立
nn INCORPORATION PROCESS 公司设立过程 uu INCORPORATORS
tt RESPONSIBLE FOR CREATION OF CORPORATION
nn ARTICLES OF INCORPORATION 设立章程 tt SIGNED BY INCORPORATOR(S) tt FILED WITH STATE (WI – DEPARTMENT OF FINANCIAL INSTITUTIONS) tt EXISTENCE BEGINS WHEN ACCEPTED BY DFI
职业性公司(律师事务所、会计师事务所 等)
nn CLASSIFICATIONS uu PROFESSIONAL CORPORATIONS tt “PC” OR “SC” 职业性公司 tt MEMBERS OF A GIVEN PROFESSION ARE SHAREHOLDERS tt NO LIMITED LIABILITY FOR PROFESSIONAL MALPRACTICE
uu PUBLIC CORPORATION公众公司
tt GOVERNMENTAL UNIT tt QUASI-GOVERNMENT ENTITY uu PRIVATE CORPORATION私人公司 tt FOR PROFIT BUSINESS tt NON-PROFIT ORGANIZATION
美国公司法中英文教程Chapter 2
*-+Chapter 2THE CORPORATE FORM公司设立I. WHERE AND HOW TO INCORPORATE设立地点、方法A. Delaware vs. headquarter state: The incorporators mustchoose between incorporating in their headquarter state, or incorporating somewhere else (probably Delaware). [13]1. Closely held（非上市公司？这两个术语我也不是很确定，差不多是这意思吧）: For a closely held corporation,incorporation should usually take place in the statewhere the corporation’s principal place of business主营业地is located. [14]2. Publicly held（上市公司？）: But for a publicly heldcorporation, incorporation in Delaware is usually veryattractive (because of Delaware’s well-defined,predictable, body of law, and its slightpro-management bias.) [14]I.公司设立A．在公司总部所在地设立或其他地方1、非上市公司的设立一般都在公司主营业所在地2、上市公司在特拉华州设立具有很大优势。
B．公司设立机制1、公司章程，成立一个公司创立人需要起草公司章程a.修订，章程可以随时被修订，需经因修订权利受损股东的多数票通过。
1、发起人在明知公司为成立，而以公司名义与他人订立合同的，需要对所订立的合同承担责任。
company law 2公司法双语PPT
debts
The amount of capital contributions
①The minimum amount of registered capital of a limited liability company shall be RMB 30, 000 Yuan. ②The amount of the initial capital contributions made by all shareholders shall be not less than 20% of the registered capital, nor less than the statutory minimum amount of registered capital ③The amount of the capital contributions in currency paid by all the shareholders shall be not less than 30% of the registered capital of the limited liability company. ④in currency, in kind or intellectual property right, land use right or other non-currency properties non-
Incorporation and Organization of a Limited Liability Company 2. Establishment
(1) The number of shareholders (1~50) (2) The amount of capital contributions paid by the shareholders reaches the statutory minimum amount of the registered capital; subscribed capital system (3) The articles of association are worked out jointly by shareholders.(The content of articles ) (4) The company has a name and its organization complies with that of a limited liability company; and (5) The company has a domicile.
公司法英文版.doc
公司法英文版（2）-; Article 103; In order to hold a general meeting of shareholders, notice concerning the time, venue and matters to be considered at the meeting shall be given to each shareholder twenty days in advance. In the event of an interim meeting of shareholders, the notice may be given fifteen days in advance. Where the company has issued bearer share certificates, a public notice concerning the time, venue and matters to be considered at the meeting shall be made thirty days prior to the meeting.; Shareholders individually or jointly holding three percent (3%) of the shares of the company may, ten days prior to the general meeting of shareholders, submit a temporary written proposal to the board of directors. The board of directors shall, within two days after receipt of the proposal, inform other shareholders and submit the proposal to the general meeting of shareholders for deliberation. The items contained in the proposal shall fall within the scope of powers exercised by the general meeting of shareholders and clear topic and specific matters to be considered shall be included. The general meeting of shareholders shall not decide on any matters that are not specified in aforesaid notices. Where the holders of bearer shares attend the general meeting of shareholders, they shall deposit the shares with the company five (5) days earlier before the date of the meeting up till the closingdate of the meeting.; Article 104; When a shareholder attends the general meeting of shareholders, each share he holds is entitled to one vote. However, the share held by the company itself shall not have the voting right. A resolution adopted by the general meeting of shareholders requires affirmative votes by a majority of the votes held by shareholders attending the meeting. The resolution with regards to amendment to the articles of association, increase or decrease of registered capital, merger, division or dissolution of the company or change of the form of the company requires affirmative votes by at least two-thirds of the votes held by shareholders attending the meeting.; Article 105; Where it is stipulated in this Law or the articles of association that the assignment or receipt of the company s major assets or provision of security shall be determined at the general meeting of shareholders, the board of directors shall, in a timely manner, convene the general meeting of shareholders that will vote on aforesaid matters.; Article 106; The general meeting of shareholders shall adopt accumulative voting system when voting on the election of directors or supervisors in accordancewith the articles of association or the resolution adopted by the shareholders general meeting. The accumulative voting system referred to herein means that in the election of the directors or supervisors at the general meeting, the number of votes attached to each share held by a; shareholder shall be equal to the number of candidates. A shareholder can multiply his voting shares by the number of candidates and vote them all for one person for director or supervisor.; Article 107; A shareholder may attend a general meeting of shareholders by proxy, the proxy holder shall present the proxy statement issued by the shareholder to the company, and shall exercise his voting rights to the extent authorized by the proxy.; Article 108; The general meeting of shareholders shall prepare minutes regarding the decisions on matters considered at the meeting, which shall be signed by the chairman of the meeting and directors attending the meeting. The minutes shall be maintained together with the record containing signatures of the shareholders attending the meeting and the proxy statements.; Section Three Board of Directors and General Manager公司法英文版（2）-; Article 109; A joint stock limited company shall have a board of directors, which shall be composed of not fewer than five but not more than nineteen members.; The members of the board of directors shall include representatives of the staff and workers of the company. Such representatives of the staff and workers shall be democratically elected by the staff and workers of the company through the congresses or assemblies of the workers and staff members or other forms.; The provisions of Article 46 on the term of directors of a limited liability company shall apply to that of the directors of a joint stock limited company.; The provisions of Article 47 on the functions and powers of the board of directors of a limited liability company shall apply to that of the board of directors of a joint stock limited company.; The board of directors shall have a chairman, and may have one or two vice-chairmen. The chairman and vice-chairman shall be elected by the board of directors through affirmative votes by more than half of all the directors.; The chairman shall convene and preside over meetings of the board of directors and supervise the implementation of resolutions adopted by the board of directors. The vice-chairman shall assist the chairman in his work. Where the chairman is unable to or does not exercise his authorities, the vice-chairman appointed by the chairman shall exercise such authorities in his capacity. Where the vice chairman is unable to or does not exercise his authorities, a director jointly nominated by more than half of all the directors shall exercise such authorities.; Article 111; The board of directors shall hold meetings at least twice a year, and notice shall be given to all directors and supervisors ten days in advance. Shareholders representing one tenth of voting rights, or one third or more of all the directors or supervisors may propose to have an interim meeting of the board. The Chairman, within ten days after receipt of such proposal, may convene and preside over a meeting of the board. Where an interim meeting of the board of directors is to be held, the method and time limit for notification for convening the interim meeting may be prescribed separately.; A meeting of the board of directors may not be held unless attended by more than half of the directors. A resolution adopted by the board of directors requires affirmative votes by more than half of all the directors.; In the voting procedures, one director shall represent one vote.; Article 113; A meeting of the board of directors shall be attended by each director in person. Where a director is unable to attend the meeting for cause, he may issue a written proxy entrusting another director to attend on his behalf, and the proxy shall set forth the scope of authorization.; The board of directors shall prepare minutes regarding the decisions on matters considered at the meeting, which shall be signed by the directors attending the meeting and the person preparing the minutes.; The directors shall be responsible for resolutions adopted by the board of directors. Where a resolution of the board violates any national statutes, administrative regulations or the articles of association, and causes the company to incur serious loss, those directors participating in the adoption of the resolution are liable to the company for damages. Provided, however, if a director is proven to have dissented at the vote adopting such resolution and such dissension was noted in the minutes, then the director may be exemptfrom liability.; Article 114; A joint stock limited company shall have a general manager, to be appointed or removed by the board.公司法英文版（2）-; The provisions of Article 50 on the functions and powers of the manager of a limited liability company shall apply to the manager of a joint stock limited company.; Article 115; The board of directors of the company may decide that a board member is to serve concurrently as the general manager.; Article 116; A joint stock limited company must not directly, or through its affiliate companies, borrow money from its directors, supervisors or senior officers.; Article 117; A joint stock limited company shall disclose on regular basis the remuneration of its directors, supervisors and senior officers.; Section Four Board of Supervisors; Article 118; A joint stock limited company shall have a board of supervisors, which shall be composed of not fewer than three (3) members.; The board of supervisors shall be composed of the shareholders’ representatives and representatives of the workers of the company. The number of the workers representatives shall not be lower than one third of all the supervisors, the specific percentage of which shall be determined in the articles of association. The workers’ representatives on the board of supervisors shall be democratically elected by the workers of the company through the congresses or assemblies of the workers and staff members or other forms. The board of supervisors shall have one chairman that shall be elected by more than half of all the supervisors. The meetings of the board ofsupervisors shall be convened and presided over by the chairman of the board. In the event that the chairman is unable to or does not perform his duties, the meeting shall be convened and presided over by a supervisor jointly nominated by more than half of all the supervisors.; A director and a senior officer may not serve concurrently as a supervisor.; The provisions of Article 52 on the term of the supervisor of a limited liability company shall apply to the supervisor of a joint stock limited company.; Article 119; The provisions of Article 54 and Article 55 on the functions and powers of the board of supervisors of a limited liability company shall apply to the board of the supervisors of a joint stock limited company.; Reasonable expenses necessary for supervisors to performance their duties shall be borne by the company.; Article 120; The board of supervisors shall convene a meeting at least every six months. An interim meeting of the board may be called at the request of supervisors.; The rules of deliberation and voting procedures for the board ofsupervisors shall be stipulated by the articles of association of the company.; The board of supervisors shall prepare a minute of the meeting signed by all supervisors attending the meeting.; Section Four Special Provisions on the Structure of a Listed Company; Article 121; A listed company referred to herein means a joint stock limited company whose shares are listed and traded on a securities exchange.; Article 122; Any purchase or sale of major assets within one year or provision of a security in an amount in excess of thirty percent (30%) of the total assets by a listed company shall be deliberated and determined at a general meeting of shareholders and the resolution adopted by such a meeting requires affirmative votes by shareholders representing two-thirds of the voting rights.; Article 123; A listed company shall have independent directors the specific method of which shall be determined by the State Council.; Article 124公司法英文版（2）-; A listed company shall have a secretary of the board of directors whose responsibilities include the preparation of the general meeting of shareholders and meetings of the board of directors, maintenance of documents, share management as well as relevant matters concerning information disclosure.; Article 125; The director of a listed company affiliated with the enterprise involved in the matters discussed by the board of directors shall not exercise his own, or represent other directors to exercise voting right for such matters. The meeting of the board of directors may be held once more than half of the unaffiliated directors will be present. The resolution made by the meeting of the board shall be adopted by more than half of all such directors. Where there are not more than three (3) unaffiliated directors, the relevant matters shall be forwarded to the general meeting of shareholders for deliberation.; Chapter Five Issue and Transfer of Shares of Joint Stock Limited Companies; Section One Issue of Shares; Article 126; The capital of a joint stock limited company shall be divided into shares, and all the shares shall be of equal value.; Shares of the company are represented by share certificates. A share certificate is a certificate issued by the company certifying the share held by a shareholder.; Article 127; When shares are issued, the principles of openness, fairness, and equity shall be followed, and each share in the same class must have the same rights and receive the same interests.; For shares issued at the same time, each share shall be issued on the same conditions and at the same price. All entities or individuals subscribing for shares shall pay the same price for each share.; Article 128; The issuing price per share may be at par value, or above par value, but may not be below par value.; Article 129; A share certificate shall be in paper form or in other forms prescribed by the securities regulatory authority under the State Council.; A share certificate shall set forth the following major items:; (1) the name of the company;; (2) the company’s date of registration and establishment;; (3) the class and par value of the shares and the number of shares represented;; (4) the serial number of the share certificate.; The share certificate shall be signed by the chairman of the board, and the company’s chop shall be impressed thereon.; Share certificates held by the sponsors shall be marked with the words Sponsors’ Share.; Article 130; Share certificates issued by the company may be in the form of either registered share certificates or bearer share certificates.; Share certificates issued by the company to its sponsors or legal persons shall be registered share certificates bearing the names of such sponsors or legal persons, and may not be registered under any other names or in the names of their legal representatives.; Article 131; A company issuing registered share certificates shall maintain a record of shareholders, which shall set forth the following:; (1) the name and domicile of each shareholder;; (2) the number of shares held by each shareholder;; (3) the serial numbers of share certificates held by each shareholder;; (4) the date on which each shareholder acquired his shares.; A company issuing bearer share certificates shall record the number of such share certificates, their serial numbers and their issuing dates.公司法英文版（2）-; Article 132; The State Council may make separate stipulations relating to a company’s issuance of shares of classes other than those prescribed herein.; Article 133; Upon registration and establishment, a joint stock limited company shall promptly deliver the share certificates to its shareholders officially. Prior to registration and establishment, the company may not deliver any share certificate to its shareholders.; Article 134; Where a company is to issue new shares, the general meeting of shareholders or the board of directors shall adopt a resolution concerning thefollowing in accordance with the articles of association:; (1) the classes and number of the new shares;; (2) the issuing price of the new shares;; (3) the commencing and ending dates of issuance of the new shares;; (4) the classes and number of new shares issued to the existing shareholders.; Article 135; When a company is approved by the securities supervision and administration department under the State Council to issue new shares to the public, it shall make public the prospectus for the issue of new shares, its financial and accounting statements, and shall prepare the subscription form.; The provisions of Article 88 and Article 89 shall apply to the issue of new shares.; Article 136; In issuing new shares, a company may determine the pricing scheme in light of the business operation and financial conditions of the company.; Article 137; Upon full receipt of the share proceeds from the company’s newly issued shares, the company shall carry out amendment registration with the company registration authority and shall make a public announcement.; Section Two Assignment Of Shares; Article 138; Shares held by a shareholder may be assigned in accordance with the law.; Article 139; Assignment of shares by a shareholder must be carried out at a lawfully established securities exchange or in other manners stipulated by the State Council.; Article 140; Assignment of registered share certificates is effected by the shareholder’s endorsement thereof or by other methods prescribed by the relevant national statutes or administrative regulations. In the case of assignment of registered share certificates, the company shall record the assignee’s name and domicile on the record of shareholders.; Alteration registration for the record of shareholders referred to in the preceding paragraph shall not be carried out for a period of twenty days prior to the holding of a general meeting of shareholders, or five days prior to the record date for the purpose of dividend distribution determined by the company. However, where such change of shareholders is otherwise stipulated by the law, such stipulations shall apply.; Article 141; Assignment of bearer share certificates takes effect upon delivery thereof by the shareholder to the assignee.; Article 142; Shares of a company held by its sponsors may not be assigned for a period of one year commencing from the date of the company’s establishment. Shares that have been issued before the public offer shall not be transferred for a period of one year commencing from the date of trading of the company s shares on a stock exchange.; The directors, supervisors and senior officers of the company shall report to the company the number of the company’s shares held thereby and any change of such shareholding. The shares transferred within their term of office each year shall not exceed twenty-five percent (25%) of the total shares of the company held by them. Shares of the company held by aforesaid people shallnot be transferred for a period of one year commencing from the date of trading of the company s shares on a stock exchange. These people, within half of the year from their departure from the company, shall not transfer the shares of the company held by them. The articles of association may otherwise provide for restrictions on the transfer of the shares of the company held by its directors, supervisors and senior officers.公司法英文版（2）-; Article 143; A company may not purchase its own shares, except in the following cases:; (1) reducing the company’s registered capital;; (2) merging with another company holding shares of the company;; (3) granting incentive shares to the staff and workers of the company;; (4) requesting the company to purchase its own shares where shareholders of the company oppose the decision on merge or division of the company made at a general meeting of shareholders.; A resolution shall be adopted by a general meeting of shareholders in the event of a purchase as described in the above items from (1) through (3). The original shares, after the company has purchased its own shares in the case as described in item (1), shall be cancelled within ten days of such purchase. In the cases as described in item (2) and (4), the shares shall be transferred or canceled within six months of such purchase.; The shares of the company purchased by itself in the case as described in item (3) shall not exceed five percent (5%) of the total shares issued by the company. The fund for such purchase shall be paid out of the after-tax profits of the company and the shares purchased shall be transferred to the staff and workers within one year of such purchase.; The company may not accept its own shares as the collateral under a security arrangement.; Article 144; If a registered share certificate is stolen, lost or destroyed, the shareholder may petition a people’s court for the invalidation thereof throughthe public notice procedure prescribed in the Civil Procedural Law of the People’s Republic of China.; After the people’s court has invalidated such share certificate through the public notice procedure, the shareholder may apply to the company for re-issuance of a certificate for the share.; Article 145; The shares of a company approved for listing shall be listed in accordance with laws, administrative regulations and trading rules set forth by a stock exchange.; Article 146; A listed company shall make public its financial conditions and operating conditions in accordance with the relevant laws and administrative regulations, and shall make public its financial and accounting reports semiannually in each fiscal year.; Chapter Six: Qualifications and Obligations of Directors, Supervisors and Senior Officers; Article 147; A person in any of the following categories may not serve as a director,supervisor, or the general manager of a company:; (1) without civil capacity or with limited civil capacity;; (2) having been sentenced to prison for the following crimes, and completion of the sentence being less than five years ago: embezzlement, bribery, conversion of property, misappropriation of property, sabotage of social economic order; or having been deprived of political rights as a result of a criminal conviction, and completion of such sanction being less than five years ago;; (3) having served as a director, the factory chief, or the general manager of a company or enterprise which underwent bankruptcy liquidation as a result of mismanagement, and being personally responsible for such bankruptcy, and completion of the bankruptcy liquidation being less than three years ago;; (4) having served as the legal representative of a company or enterprise whose business license was revoked due to its violation of law, and being personally responsible for such revocation, and such revocation occurring less than three years ago;; (5) in default of personal debt of a significant amount.; If the company elects or appoints a director or supervisor or employs the senior officer in violation of the above paragraph, such election, appointment or employment is invalid. The company shall remove the director, supervisor orsenior officer once the circumstances described in item (1) occur.公司法英文版（2）-; Article 148; A director, supervisor, or the general manager shall abide by laws, administrative regulations and articles of association of the company and shall have the fiduciary and diligent duties to the company.; A director, supervisor, or the senior officer may not abuse their authorities by accepting bribes or generating other illegal income, and may not convert company property.; Article 149; The director and senior officer:; (1) may not misappropriate company funds;; (2) may not deposit company assets into an account in his own name or in any other individual’s name;; (3) may not loan company funds to other people or give company assets as security for the debt of any other individual without the approval of the shareholders meeting, general meeting of shareholders or the board of directors in violation of the articles of association;; (4) may not execute any contract or engage in any transaction with the company in violation of the articles of association or without the approval of the shareholders meeting or the general meeting of shareholders;; (5) may not use the favorable conditions and conveniences to seek the business opportunities that shall belong to the company to engage in the same business as the company in which he serves as a director or the senior officer either for his own account or for any other person’s account without the approval of the shareholders meeting or the general meeting of shareholders;; (6) may not accept and possess the commissions paid by others for transactions conducted with the company;; (7) may not disclose company confidential information without authorization;; (8) may not engage in other activities in violation of his fiduciary duties.; Article 150; If a director, supervisor or the senior officer causes detriment to the company while performing his duties in violation of laws, administrative regulations or the articles of association, he shall be liable for the loss so caused.; Article 151; Where the shareholders meeting or the general meeting of shareholders requires a director, supervisor or the senior officer to be present at meetings, they shall be present at meetings and answer the inquiries of shareholders.; A director or senior officer shall provide the board of supervisors or the supervisors of a limited liability company without a board of supervisors with genuine documents and information and shall not obstruct the board of supervisors or supervisors from performing duties.; Article 152; Where a director or senior officer is involved in the circumstance as described in Article 150, the shareholders of a limited liability company or a joint stock limited company that individually or jointly hold one percent (1%) of the total shares for consecutive 180 days may request in writing the board ofsupervisors or the supervisors of a limited liability company without a board of supervisors to file suit before a people s court. Where a supervisor is involved in the circumstance as described in Article 150, aforesaid shareholders may request in writing the board of directors or the executive director of a limited liability company without a board of directors to file suit before a people s court.; Where the board of supervisors or the supervisors of a limited liability company without a board of supervisors, or the board of directors or the executive director refuses to file suit after receipt of the written request mentioned above, or does not file suit within thirty days of the receipt of the same, or comes across an emergency where, if no immediate actions are taken, the company s interests shall be incurably impaired, then the shareholders may, for the interest of the company and on their own behalf, directly file suit before a people s court.。
中英对照美国公司法概要幻灯片
A Brief Introduction to Corporate Law of USA 美国公司法概要吴越编译一、公司的特征与分类CHARACTERISTICSCLASSIFICATIONSCORPORATIONS 示范公司法⏹REVISED MODEL BUSINESS CORPORATION ACT (RMBCA)◆1984◆AS ADOPTED BY INDIVIDUAL STATES◆美国示范公司法（RMBCA），又译美国标准公司法。
美国各州都有自己的公司法，尤其以特拉华州公司法最有代表性。
公司的特征⏹CHARACTERISTICS 特征◆LEGAL ENTITY◆OWNED BY SHAREHOLDERS◆MANAGEMENT♦DIRECTORS♦OFFICERS◆LIMITED LIABILITY分类⏹CLASSIFICATIONS◆PUBLIC CORPORATION公众公司♦GOVERNMENTAL UNIT♦QUASI-GOVERNMENT ENTITY◆PRIVATE CORPORATION私人公司♦FOR PROFIT BUSINESS♦NON-PROFIT ORGANIZATION股份公司与有限公司⏹CLASSIFICATIONS◆PUBLICLY HELD股份公司（开放式公司）♦FREELY TRADED SHARES♦PUBLIC MARKET FOR SHARES(WHETHER OR NOT LISTED ONNATIONAL EXCHANGE)◆CLOSELY HELD有限公司（封闭式公司）♦SMALL NUMBER OF SHAREHOLDERS♦RESTRICTIONS ON TRANSFER OFSHARES职业性公司（律师事务所、会计师事务所等）⏹CLASSIFICATIONS◆PROFESSIONAL CORPORATIONS♦“PC” OR “SC” 职业性公司♦MEMBERS OF A GIVENPROFESSION ARESHAREHOLDERS♦NO LIMITED LIABILITY FORPROFESSIONAL MALPRACTICE依据所得税缴纳方式的公司分类⏹CLASSIFICATIONS◆INCOME TAX STATUS所得税地位♦“C” CORPORATION “C”类公司•INCOME IS TAXED AT THECORPORATION LEVEL•SHAREHOLDERS TAXED ONDIVIDENDS THEY RECEIVE♦“S” CORPORATION “S”类公司•NO TAX AT CORPORATION LEVEL•PROFITS PASS THROUGH TO二、公司的设立过程INCORPORATION PROCESS公司的设立⏹INCORPORATION PROCESS 公司设立过程◆INCORPORATORS♦RESPONSIBLE FOR CREATION OFCORPORATION⏹ARTICLES OF INCORPORATION 设立章程♦SIGNED BY INCORPORATOR(S)♦FILED WITH STATE (WI –DEPARTMENT OF FINANCIALINSTITUTIONS)♦EXISTENCE BEGINS WHEN ACCEPTED公司章程⏹ARTICLES OF INCORPORATION 章程◆NAME♦MUST SPECIFICALLY DESIGNATEAS CORPORATION (“CORP.”,“COMPANY”, “INC.”, “LTD”)♦CANNOT BE DECEPTIVELYSIMILAR TO ANOTHERCORPORATION’S NAME公司章程续⏹ARTICLES OF INCORPORATION 章程◆DURATION♦PERPETUAL, OR♦LIMITED PERIOD◆PURPOSE♦SPECIFIC (OR LIMITED)♦ANY LAWFUL BUSINESS◆NUMBER OF AUTHORIZED SHARES公司章程续⏹ARTICLES OF INCORPORATION 章程◆REGISTERED OFFICE AND AGENT♦OFFICE MUST BE IN STATE♦AGENT MUST BE RESIDENT OFSTATE◆NAME AND ADDRESS OFINCORPORATOR(S)内部管理文件⏹BYLAWS 内部管理规则◆DETAILED RULES THAT CONTROLINTERNAL MATTERS OFCORPORATION◆USUALLY, BOTH BOD ANDSHAREHOLDERS HAVE POWER TOCREATE, AMEND OR REPEAL公司设立的效力⏹CORPORATE POWERS 公司的权力、公司设立的效力◆GRANTED BY STATE LAW◆EXAMPLES♦PERPETUAL EXISTENCE♦FILE LAWSUITS♦OWN PROPERTY♦MAKE CONTRACTS♦PERFORM ACTS NECESSARY TOCONDUCTING LAWFUL BUSINESS越权规则⏹“ULTRA VIRES” 越权规则◆ACTS THAT ARE BEYOND CORPORATEPOWERS OR PURPOSE STATED INARTICLES OF INCORPORATION◆FOLLOWING CAN SUE TO PREVENT♦SHAREHOLDER♦CORPORATION, AGAINST OFFICERSOR DIRECTORS♦STATE ATTORNEY GENERAL按设立地分类⏹DOMESTIC CORPORATION 本州公司⏹FOREIGN CORPORATION 外州公司◆DOING BUSINESS IN ANY STATE OTHERTHAN STATE IN WHICH INCORPORATED◆REGISTERED AGENT AND OFFICE◆CANNOT SUE IN THAT STATE UNTILOBTAINING “CERTIFICATE OFAUTHORITY”⏹ALIEN CORPORATION 外国公司◆INCORPORATED IN A FOREIGN公司发起人⏹PROMOTERS 发起人◆PREINCORPORATION CONTRACTS♦CORPORATION NOTAUTOMATICALLY LIABLE♦TO BE LIABLE, MUST “ADOPT”THE PROMOTER’S CONTRACTAFTER COMING INTO EXISTENCE先公司合同⏹PROMOTERS 发起人◆PREINCORPORATION CONTRACTS♦PROMOTER IS PERSONALLY LIABLE♦AVOIDING LIABLILITY•IRREVOCABLE OFFER TO CORP•SPECIFIC CONTRACT TERMS•PROMOTER, THIRD PARTY ANDCORP ENTER INTO “NOVATION”•RELEASE FROM THIRD PARTY公司设立瑕疵⏹DEFECTIVE INCORPORATION 设立瑕疵◆“DE JURE” –IN TOTAL COMPLIANCEWITH STATE STATUTE◆“DE FACTO” 事实公司♦ELEMENTS:•EXISTING STATE STATUTE•GOOD FAITH EFFORT TO COMPLY•CONDUCTING BUSINESS A CORP♦ONLY THE STATE CAN CHALLENGECORP’S EXISTENCE冒牌公司⏹DEFECTIVE INCORPORATION◆CORP BY ESTOPPEL 冒牌公司♦THIRD PARTY CONDUCTS BUSINESSWITH ANOTHER BUSINESS♦THIRD PARTY BELIEVES OTHERBUSINESS TO BE A CORP♦THIRD PARTY CANNOT HOLD“SHAREHOLDERS” (OWNERS)PERSONALLY LIABLE IF BUSINESSFAILED TO PROPERLY INCORPORATE揭开公司面纱⏹“PIERCING CORPORATE VEIL” PERSONAL LIABILITY IMPOSED UPON SHAREHOLDERS◆CIRCUMSTANCES CONSIDERED♦UNDERCAPITALIZATION♦FAILURE TO OBSERVE FORMALITIES♦NONPAYMENT OF DIVIDENDS♦SIPHONING OF FUNDS BYCONTROLLING SHAREHOLDER♦NONFUNCTIONING OF OTHER揭开公司面纱续⏹“PIERCING CORPORATE VEIL”◆CIRCUMSTANCES CONSIDERED♦USE OF CORP AS FACADE FORCONTROLLING SHAREHOLDER’SOTHER FINANCIAL AFFAIRS♦FRAUD, OR OTHER INJUSTICE三、公司的融资结构FINANCIAL STRUCTURE融资结构：公司证券分类⏹“SECURITY”证券◆STOCK (EQUITY SECURITY)股票♦OWNERSHIP INTEREST◆BOND (DEBT SECURITY)债券♦HOLDER IS A CREDITOR OFCORPORATION股东权益⏹RIGHTS OF SHAREHOLDER◆DIVIDENDS◆PARTICIPATE IN CONTROL (VOTEON MAJOR ISSUES ATSHAREHOLDERS’ MEETING)◆SHARE OF NET ASSETS UPONLIQUIDATION OF CORPORATION股票分类：普通股⏹STOCK (SHARES) CLASSES股票分类◆COMMON STOCK♦BASIC GROUP OF OWNERS♦VOTING RIGHTS优先股⏹STOCK CLASSES◆PREFERRED STOCK优先股♦RECEIVE SPECIFIED PRIORITIES•ORDINARILY, RIGHT TO DIVIDENDBEFORE COMMON STOCKSHAREHOLDERS♦MAY BE “CUMULATIVE”•RIGHT TO DIVIDEND CARRIESFORWARD (AND ACCUMULATES)IF NOT PAID IN CURRENT YEAR优先股续⏹STOCK CLASSES◆PREFERRED STOCK♦MAY BE “CALLABLE”•CORP CAN PURCHASE FROMSHAREHOLDER AT CORP’SOPTION•MAY BE “CONVERTIBLE” INTOCOMMON STOCK股票的其他分类⏹STOCK CATEGORIES◆“AUTHORIZED” –CORP MAY ISSUE UP TO THISAMOUNT AS STATED IN ARTICLES OFINCORPORATION 授权发行的股份◆“ISSUED” –SOLD OR OTHERWISETRANSFERRED BY CORPORATION TOSHAREHOLDERS 已发行股份◆“OUTSTANDING” –HELD BY SHAREHOLDERSAT ANY GIVEN POINT IN TIME 股东持有的股份◆“TREASURY” –PREVIOUSLY ISSUED, BUTHAVE BEEN REACQUIRED BY CORP 公司回购的股份（无表决权）取得股份的对价（方式）⏹CONSIDERATION FOR STOCK◆CASH现金◆PROPERTY财产◆PROMISSORY NOTE可转让的票据◆SERVICES PERFORMED已完成服务◆PROMISE TO PERFORM SERVICESIN THE FUTURE承诺的服务认股协议⏹PRE-INCORPORATION SUBSCRIPTION AGREEMENTS◆OFFER BY SHAREHOLDER TO BUYSTOCK IN CORP NOT YET FORMED◆RMBCA TREATS AS IRREVOCABLEOFFER FOR 6 MONTHS AFTER DATE OFOFFER♦WISCONSIN –OFFER ISAUTOMATICALLY ACCEPTED BYCORP UPON FORMATION OF CORP“发水股份”（出资瑕疵）⏹“WATERED STOCK” 发水股票◆STOCK THAT HAS BEEN ISSUED FORINADEQUATE CONSIDERATION♦EXAMPLES•OVERVALUED REAL ESTATE•PROMISE OF FUTURE SERVICESTHAT IS NOT PERFORMED公司债券的种类⏹BOND 有担保债券◆A LOAN OF MONEY TO CORP◆HOLDER ENTITLED TO PERIODICPAYMENT OF INTEREST AND RETURNOF PRINCIPAL WHEN BOND “MATURES”◆SECURED BY SPECIFIC CORPORATEPROPERTY⏹DEBENTURE 无担保债券◆UNSECURED LOAN, SO THAT HOLDER ISA GENERAL CREDITOR OF CORP债券承销协议⏹INDENTURE债券承销协议◆AGREEMENT BETWEEN CORPISSUING BOND AND THEFINANCIAL INSTITUTIONADMINISTERING THE BOND公司证券转让：记名股票⏹TRANSFER OF SECURITIES证券转让◆STOCK CERTIFICATES股权证书♦REGISTERED记名式•TRANSFERRED BY OWNERSIGNING ON CERTIFICATE,NAMING TRANSFEREE, ANDRETURNING TO CORP•CORP ISSUES NEW CERTIFICATE INNAME OF TRANSFEREE不记名股票⏹TRANSFER OF SECURITIES◆STOCK CERTIFICATES♦BEARER不记名式•NO SPECIFIC SHAREHOLDERNAMED ON CERTIFICATE•SHAREHOLDER IS WHOEVERHAS PHYSICAL POSSESSIONOF THE CERTIFICATE上市公司股份转让⏹TRANSFER OF SECURITIES◆MODERN PRACTICE FOR PUBLICLYTRADED CORPORATIONS 上市公司股票♦NO PHYSICAL CERTIFICATE♦OFTEN HELD IN “DEPOSITORY”AND/OR IN BROKER ACCOUNT, WHOKEEP ACCOUNT RECORDS (RATHERTHAN PYSICAL CERTIFICATES)公司红利分配方式⏹DIVIDENDS 红利◆THREE TYPES♦CASH现金♦PROPERTY财产♦STOCK股票◆NO AUTOMATIC RIGHT TODIVIDEND IN A GIVEN YEAR非法红利⏹DIVIDENDS◆ILLEGAL DIVIDENDS非法分红♦CORP INSOLVENT, OR ISSUINGWOULD CAUSE CORP TOBECOME INSOLVENT♦DIRECTORS WHO APPROVE MAYBE PERSONALLY LIABLE三、公司的管理MANAGEMENT公司的管理层次⏹SHAREHOLDERS股东◆OWNERS◆PARTICIPATE IN MAJOR DECISIONS⏹BOARD OF DIRECTORS董事◆POLICY DECISIONS◆ELECT OFFICERS◆DECIDE TO ISSUE DIVIDENDS⏹OFFICERS经理、高管◆DAY-TO-DAY OPERATION OR BUSINESS股东大会⏹SHAREHOLDERS◆SHAREHOLDERS MEETING♦AT LEAST ANNUALLY♦MUST BE GIVEN WRITTENNOTICE OF PLACE AND TIME♦ELECT DIRECTORS♦VOTE ON OTHER MAJOR ISSUES股东大会的要求⏹SHAREHOLDERS MEETING◆QUARUM 百分比要求♦MINIMUM NUMBER OFSHAREHOLDERS (OR RIGHT TO VOTESHARES) THAT MUST BE PRESENT ATMEETING IN ORDER TO CONDUCTBUSINESS◆MAY TAKE ACTION WITHOUT MEETING,IF UNANIMOUS WRITTEN CONSENT OFSHAREHOLDERS累积投票制⏹SHAREHOLDERS MEETING◆CUMULATIVE VOTING累积投票♦ONLY FOR ELECTION OF DIRECTORS♦STATE LAW OR BY-LAWS MUSTPERMIT♦THE NUMBER OF VOTES EACHSHAREHOLDER RECEIVES (USUALLYONE PER SHARE) MULTIPLIED BY THENUMBER OF DIRECTORS BEINGELECTED AT THAT MEETING表决权代理与表决权信托⏹SHAREHOLDERS MEETING◆PROXY VOTING 表决权代理♦SHAREHOLDER DESIGNATES A PARTY WHOCAN VOTE ON BEHALF OF SHAREHOLDER(OFTEN CORPORATE MANAGEMENT)◆VOTING TRUST表决权信托♦SHAREHOLDERS ASSIGN SHARES TOTRUSTEE, WHO VOTES ACCORDING TOTRUST AGREEMENT♦SHAREHOLDERS STILL RECEIVE DIVIDENDS投票协议⏹SHAREHOLDERS MEETING◆VOTING AGREEMENT 投票协议♦CONTRACT BETWEENSHAREHOLDERS TO CAST THEIRVOTES IN A CERTAIN WAY优先认股权⏹SHAREHOLDERS MEETING◆PREEMPTIVE RIGHTS优先认购权♦RIGHT OF SHAREHOLDER TOPURCHASE AMOUNT OF SHARESIN NEW ISSUANCE SO THATPERCENTAGE OWNERSHIPINTEREST IS MAINTAINED股东查阅权⏹SHAREHOLDER’S RIGHT TO REVIEW CORPORATE RECORDS股东查阅权◆MUST BE CURRENT SHAREHOLDER◆WRITTEN DEMAND STATING THEPURPOSE◆MADE IN GOOD FAITH◆PROPER PURPOSE董事会⏹BOARD OF DIRECTORS 董事会◆ACT AS A GROUP, NOT INDIVIDUALLY◆MAY HAVE ONLY ONE DIRECTOR◆MAY HAVE “STAGGERED TERMS”◆（限制性条款，绊脚石条款）◆MID-TERM VACANCY USUALLY FILLEDBY BOD UNTIL NEXT SHAREHOLDERMEETING。
第一章 公司概述
关于强制性法律规范的地位 （mandatory rules）
契约论者认为：公司法应由任意法规则（default rules） 或赋权性规则（enabling rules）构成。 公司法的地位充其量只是为公司提供了一种可供参 考的“示范”和“越轨”原则。（standardized; off the track principle） （二）对“契约关系”理论的批评 1. 该种范式表达了应该是什么，而不是实际是什么的 理念；（what ought to be, rather than what is） 2. 公司并不完全是一种契约安排； 3.公司法并不能完全取消强制法而代之以任意法；
第一章 公 司 概 述
第一节 公司的经典定义
一、公司概念解析 Corporation（美） Company（英） Although company law is a well-recognized subject in the legal curriculum and the title of a voluminous literature, its exact scope is vague since the word company has no strictly legal meaning.
二、公司行为能力
1. 公司具有独立的意志； 2. 公司可以以自己的名义从事各种商事行为； 公司意思实现依赖于公司代表人或代理人。
三、公司责任能力
（一）公司的民事责任能力
第三条 公司是企业法人，有独立的法人财产， 享有法人财产权。公司以其全部财产对公司的 债务承担责任。
（二）公司在公法上的责任能力
二、公司的人格性（legal personality）
公司法英文对照(2)_1完整篇.doc
公司法英文对照（2）-; Article 109 The shareholders’ general committee shall prepare minutes regarding the decisions on matters considered at the meeting，which shall be signed by the directors attending the meeting. The minutes shall be maintained together with the record containing signatures of the shareholders attending the meeting and the proxy statements.; 第一百一十条：股东有权查阅公司章程、股东大会会议记录和财务会计报告，对公司的经营提出建议或者质询。
; Article 110 A shareholder is entitled to inspect the articles of association，the min utes of meetings of shareholders’ general committee and the financial and accounting reports of the company，and is entitled to make a proposal or inquiry concerning the company’s operation.; 第一百一十一条：股东大会、董事会的决议违反法律、行政法规，侵犯股东合法权益的，股东有权向人民法院提起要求停止该违法行为和侵害行为的诉讼。
; Article 111 Where a resolution adopted by the shareholders’ general committee or the board of directors violates the relevant national statutes or administrative regulations，or infringes on the rights and interests of the shareholders，a shareholder is entitled to bring a suit to the People’s Court to enjoin such illegal act or infringing act.; 第三节：董事会、经理Section Three：Board Of Directors And General Manager; 第一百一十二条：股份有限公司设董事会，其成员为五人至十九人。
美国示范商业公司法(中英文对照)
MODEL BUSINESS CORPORATION ACT示范商业公司法CHAPTER 1GENERAL PROVISIONS第一章总则Subchapter A. SHORT TITLE AND RESERVATION OF POWER第一节简称和权力的保留§ 1.01. Short title 简称§ 1.02. Reservation of power to amend or repeal 保留修订和废除本法的权力Subchapter B. FILING DOCUMENTS第二节文件的提交§ 1.20. Requirements for documents; extrinsic facts 申请条件与外部事实§ 1.21. Forms 表格§ 1.22. Filing, service, and copying fees 申报费、服务费以及复印费§ 1.23. Effective time and date of document 文件生效时间与日期§ 1.24. Correcting filed document 对已申请文件的纠正§ 1.25. Filing duty of secretary of state 州务卿的备案归档职责§ 1.26. Appeal from secretary of state's refusal to file document 对州务卿拒绝接受文件归档时的上诉§ 1.27. Evidentiary effect of copy of filed document 已归档文件副本的证据效力§ 1.28. Certificate of existence 关于公司存续的证明书§ 1.29. Penalty for signing false document 对签署假文件的惩罚Subchapter C. SECRETARY OF STATE第三节州务卿§ 1.30. Powers 州务卿的权力Subchapter D. DEFINITIONS第四节定义§ 1.40. Act definitions 本法案中的定义§ 1.41. Notice 通知§ 1.42. Number of shareholders 股东人数Subchapter A.SHORT TITLE AND RESERVATION OF POWER§ 1.01. SHORT TITLE第一节简称和权力保留§ 1.01. 简称This Act shall be known and may be cited as the "[name of state] Business Corporation Act."本法应称为并引用为《（州的名称）公司法》。
公司法(英文版)
The Company Law of the People'sRepublic of China(Revised in 2005)(Adopted at the Fifth Session of the Standing Committee of the Eighth National People's Congress on December 29, 1993. Revised for the first time on December 25, 1999 in accordance with the Decision of the Thirteenth Session of the Standing Committee of the Ninth People's Congress on Amending the Company Law of the People's Republic of China. Revised for the second time on August 28, 2004 in accordance with the Decision of the 11th Session of the Standing Committee of the 10th National People's Congress of the People's Republic of China on Amending the Company Law of the People's Republic of China. Revised for the third time at the 18th Session of the 10th National People's Congress of the People's Republic of China on October 27, 2005)ContentsChapter I General ProvisionsChapter II Incorporation and Organization of a Limited Liability CompanySection 1 IncorporationSection 2 OrganizationSection 3 Special Provisions on One-person Limited Liability CompaniesSection 4 Special Provisions on wholly State-owned CompaniesChapter III Transfer of Stock Right of a Limited Liability CompanyChapter IV Incorporation and Organization of a Joint Stock Limited Company Section 1 IncorporationSection 2 Assembly of shareholdersSection 3 Board of Directors, ManagersSection 4 Board of SupervisorsSection 5 Special Provisions on the Organization of a Listed CompanyChapter V Issuance and Transfer of Shares of a Joint Stock Limited Company Section 1 Issuance of SharesSection 2 Transfer of SharesChapter VI Qualifications and Obligations of the Directors, Supervisors and Senior Managers of a CompanyChapter VII Company BondsChapter VIII Financial Affairs and Accounting of a CompanyChapter IX Merger and Division of a Company; Increase and Deduction of Registered CapitalChapter X Dissolution and Liquidation of a CompanyChapter XI Branches of a Foreign CompanyChapter XII Legal Liabilities Chapter XIII Supplementary ProvisionsChapter I General ProvisionsArticle 1 This Law is formulated for the purposes of regulating the organization and operation of companies, protecting the legitimate rights and interests of companies, shareholders and creditors, maintaining the socialist economic order, and promoting the development of the socialist market economyArticle 2 The term "company" as mentioned in this Law refers to a limited liability company or a joint stock limited company established within the territory of the People's Republic of China in accordance with the provisions of this law.Article 3 A company is an enterprise legal person, which has independent legal person property and enjoys the property right of the legal person. And it shall bear the liabilities for its debts with all its property. As for a limited liability company, the shareholders shall be responsible for the company to the extent of the capital contributions they have paid. As for a joint stock limited company, the shareholders shall be responsible for the company to the extent of the shares they have subscribed for.Article 4 The shareholders of a company shall be entitled to enjoy the capital proceeds, participate in making important decisions, choose managers, and so on.Article 5 When undertaking business operations, a company shall comply with the laws and administrative regulations, social morality and business morality. It shall act in good faith, accept the supervision of the government and the general public, and bear social responsibilities.The legitimate rights and interests of a company shall be protected by laws and may not be infringed.Article 6 For the incorporation of a company, an application for incorporation shall be filed with the company registration authority. If the application meets the requirements of this Law, the company registration authority shall register the company as a limited liability company or a joint stock limited company. If the application fails to meet the requirements, it shall not be registered as a limited liability company or a joint stock limited company.If any law or administrative regulation stipulates that the incorporation of a company shall be subject to approval, the relevant approval formalities shall be gone through prior to the registration of the company.The general public may consult the relevant matters on company registration at company registration authority, who shall provide consulting services.Article 7 For a legally established company, the company registration authority shall issue the company business license to it, and the date of issuance of the company business license shall be the date of incorporation of the company. The company business license shall state the name, domicile, registered capital, paid-up capital, scope of business, the name of the legal representative and etc. If any of the items as stated in the business license is changed, the company shall apply for modification registration, and the company registration authority shall re new the business license.Article 8 For a limited liability company established according to this Law, it shall indicate in its name with the words "limited liability company" or "limited company". For a joint stock limited company established according to this Law, it shall indicate in its name the words "joint stock limited company" or "joint stock company".Article 9 The change of a limited liability company to a joint stock limited company shall satisfy the requirements as prescribed in this Law for joint stock limited companies. The change of a joint stock limited company to a limited liability company shall meet the conditions as prescribed in this Law for limited liability companies. Under any of the aforesaid circumstances, the creditor's rights and debtsof the company prior to the change shall be succeeded by the company after the change.Article 10 A company shall regard the location of its principal office as its domicile.Article 11 The company established according to this law shall formulate its articles of association which are binding on the company, its shareholders, directors, supervisors and senior managers.Article 12 The company's scope of business shall be defined in its articles of association and shall be registered according to law. The company may change its scope of business by modifying its articles of association, but shall go through the modification registration. If the company’s scope of business covers any item subject to approval according to laws or administrative regulations, the approval shall be obtained beforehand.Article 13 The legal representative of a company shall, according to the provisions of its articles of association, be assumed by the chairman of the board of directors, executive director or manager, and shall be registered according to law. If the legal representative of the company is changed, the company shall go through the modification registration.Article 14 The company may set up branches. To set up a branch, the company shall file a registration application with the company registration authority, and shall obtain the business license. The branch shall not enjoy the status of an enterprise legal person, and its civil liabilities shall be born by the company.The company may set up subsidiaries which enjoy the status of an enterprise legal person and shall be independently bear civil liabilities.Article 15 A company may invest in other enterprises. However, it shall not become a capital contributor that shall bear the joint liabilities for the debts of the enterprises it invests in, unless it is otherwise provided for by any law.Article 16 Where a company intends to invest in any other enterprise or provide guarantee for others, it shall, according to the provisions of its articles of association, be decided at the meeting of the board of directors or shareholders’s meeting or shareholders' assembly. If the articles of association prescribe any limit on the total amount of investments or guarantees, or on the amount of a single investment or guarantee, the aforesaid total amount or amount shall not exceed the responsive limited amount. If a company intends to provide guarantee to a shareholder or actual controller of the company, it shall make a resolution through the shareholder's meeting or shareholders' assembly.The shareholder as mentioned in the preceding paragraph or the shareholder dominated by the actual controller as mentioned in the preceding paragraph shall not participate in voting on the matter as mentioned in the preceding paragraph. Such matter requires the affirmative votes of more than half of the other shareholders attending the meeting.Article 17 The company shall protect the lawful rights and interests of its employees, conclude employment contracts with the employees, buy social insurances, strengthen labor protection so as to realize safe production.The company shall, in various forms, reinforce the vocational education andin-service training of its employees so as to improve their professional quality.Article 18 The employees of a company shall, according to the Labor Union Law of the People's Republic of China, organize a labor union, which shall carry out union activities and safeguard the lawful rights and interests of the employees. The company shall provide necessary conditions for its labor union to carry out activities. The labor union shall, on behalf of the employees, conclude the collective contract with the company with respect to the remuneration, working hours, welfare, insurance, operation safety and sanitation and other matters.According to the Constitution and other relevant laws, a company shall implement democratic management in the form of meeting of the representatives of the employees or any other ways.To make a decision on restructuring or any important issue related to business operation, or to formulate any important regulation, a company shall solicit the opinions of its labor union, and shall solicit the opinions and proposals of the employees through the meeting of the representatives of the employees or in any other way.Article 19 An organization of the Chinese Communist Party shall, according to the Charter of the Chinese Communist Party, be established in the company to carry out activities of the Chinese Communist Party. And the company shall provide necessary conditions for the activities of the Chinese Communist Party.Article 20 The shareholders of a company shall comply with the laws, administrative regulations and articles of association, and shall exercise the shareholder's rights according to law. None of them may injure any of the interests of the company or of other shareholders by abusing the shareholder's rights, or injure the interests of any creditor of the company by abusing the independent status of legal person or the shareholder's limited liabilities.Where any of the shareholders of a company causes any loss to the company or to other shareholders by abusing the shareholder's rights, it shall be subject to compensation.Where any of the shareholders of a company evades the payment of its debts by abusing the independent status of legal person or the shareholder's limited liabilities, and thus seriously damages the interests of any creditor, it shall bear joint liabilities for the debts of the company.Article 21 Neither the holding shareholder, nor the actual controller, any of the directors, supervisors or senior managers of the company may injure the interests of the company by taking advantage of its connection relationship. Anyone who has caused any loss to the company due to violation of the preceding paragraph shall be subject to compensation.Article 22The resolution of the shareholders' meeting, shareholders’s assembly or board of directors of the company that has violated any law or administrative regulation shall be null and void.Where the procedures for convoking and the voting form of a shareholders' meeting or shareholders’s assembly or meeting of the board of directors, violate any law, administrative regulation or the articles of association, or the resolution is in violation of the articles of association of the company, the shareholders may, within 60 days as of the day when the resolution is made, request the people's court to revoke it.If the shareholders initiate a lawsuit according to the preceding paragraph, the people's court shall, in light of the request of the company, demand the shareholders to provide corresponding guarantee.Where a company has, in light of the resolution of the shareholders' meeting, shareholders’s assembly or meeting of the board of directors, completed the modification registration, and the people's court declares the resolution null and void or revoke the resolution, the company shall file an application with the company registration authority for cancelling the modification registration.Chapter II Incorporation and Organization of a Limited LiabilityCompanySection 1 IncorporationArticle 23 The incorporation of a limited liability company shall satisfy the following conditions:(1) The number of shareholders accords with the quorum;(2) The amount of capital contributions paid by the shareholders reaches the statutory minimum amount of the registered capital;(3) The articles of association are worked out jointly by shareholders;(4) The company has a name and its organization complies with that of a limited liability company; and(5) The company has a domicile.Article 24 A limited liability company shall be established by not more than 50 shareholders that have made capital contributions.Article 25 A limited liability company shall state the following items in its articles of association:(1) the name and domicile of the company;(2) the scope of business of the company;(3) the registered capital of the company;(4) names of shareholders;(5) forms, amount and time of capital contributions made by shareholders;(6) the organizations of the company and its formation, their functions and rules of procedure;(7) the legal representative of the company;(8) other matters deemed necessary by shareholders. The shareholders should affix their signatures or seals on the articles of association of the company.Article 26 The registered capital of a limited liability company shall be the total amount of the capital contributions subscribed for by all the shareholders that have registered in the company registration authority. The amount of the initial capital contributions made by all shareholders shall be not less than 20% of the registered capital, nor less than the statutory minimum amount of registered capital, and the margin shall be paid off by the shareholders within 2 years as of the day when the company is established; as for an investment company, it may be paid off within5 years. The minimum amount of registered capital of a limited liability company shall be RMB 30, 000 Yuan. If any law or administrative regulation prescribes a relatively higher minimum amount of registered capital of a limited liability company, the provisions of that law or administrative regulation shall be followed.Article 27 A shareholder may make capital contributions in currency, in kind or intellectual property right, land use right or other non-currency properties that may be assessed on the basis of currency and may be transferred according to law, excluding the properties that shall not be treated as capital contributions according to any law or administrative regulation.The value of the non-currency properties as capital contributions shall be assessed and verified, which shall not be over-valued or under-valued. If any law or administrative regulation prescribes the value assessment, such law or administrative regulation shall be followed.The amount of the capital contributions in currency paid by all the shareholders shall be not less than 30% of the registered capital of the limited liability company.Article 28 Every shareholder shall make full payment for the capital contribution it has subscribed to according to the articles of association. If a shareholder makes his/its capital contribution in currency, he shall deposit the full amount of such currency capital contribution into a temporary bank account opened for the limited liability company. If the capital contributions are made innon-currency properties, the appropriate transfer procedures for the property rights therein shall be followed according to law. Where a shareholder fails to make his/its capital contribution as specified in the preceding paragraph, it shall not only makefull payment to the company but also bear the liabilities for breach of the contract to the shareholders who have make full payment of capital contributions on schedule.Article 29 The capital contributions made by shareholders shall be checked by a legally established capital verification institution, which shall issue a certification.Article 30 After the initial capital contributions made by the shareholders for the first time have been checked by a legally established capital verification institution, the representative designated by all the shareholders or the agent authorized by all the shareholders shall apply for incorporation registration with a company registration application, the articles of association, capital verification report and other documents to the company registration authority.Article 31 After the incorporation of a limited liability company, if the actual value of the capital contributions in non-currency properties is found to be apparently lower than that provided for in the articles of association of the company, the balance shall be supplemented by the shareholder who has offered them, and the othershareholders of the company who have established the company shall bear joint liabilities.Article 32 After the incorporation of a limited liability company, every shareholder shall be issued with a capital contribution certificate, which shall specify the following:(1) the name of the company;(2) the date of incorporation of the company;(3) the registered capital of the company;(4) the name of the shareholder, the amount of his capital contribution, and the day when the capital contribution is made; and(5) the serial number and date of issuance of the capital contribution certificate. The capital contribution certificate shall bear the seal of the company.Article 33 A limited liability company shall prepare a register of shareholders, which shall specify the following:(1) the name of every shareholder and his/its domicile thereof;(2) the amount of capital contribution made by every shareholder;(3) the serial number of every capital contribution certificate.The shareholders recorded in the register of shareholders may, in light of the register of shareholders, claim to and exercise the shareholder's rights. A company shall register every shareholder's name and the amount of its capital contribution in the company registration authority. Where any of the registration particulars is changed, it shall apply for modification registration. If the company fails to do so, it shall not, on the basis of the unregistered or un-modified registration particulars, stand up to any third party.Article 34 The shareholder shall be entitled to consult and copy the articles of association, records of the shareholders' meetings, resolutions of the meetings of the board of directors, resolutions of the meetings of the board of supervisors, as well as financial reports.The shareholders may request to consult the accounting books of the company. Where a shareholder requests to consult the accounting books of the company, it shall submit to the company a written request which shall state its motives. If the company, pursuant to any justifiable reason, considers that the shareholder's request to consult the accounting books for any improper purpose may damage the legitimate interestsof the company, it may reject the request of the shareholder, and shall, within in 15 days after the shareholder submits a written request, give it a written reply which shall include an explanation. If the company rejects the request of any shareholder to consult the accounting books, the shareholder may plead the people's court to demand the company to approve consultation.Article 35 The shareholders shall distribute dividends in light of the percentages of capital contributions actually made by them, unless all shareholders agree that the dividends are not distributed on the percentages of capital contributions. Where the company is to increase its capital, its shareholders have the preemptive right to contribute to the increased amount on the basis of the same percentages of the capital contributions they have already made, unless all shareholders agree that they will not contribute to the increased amount of capital on the basis of the percentages of the capital contributions they have already made.Article 36 After the incorporation of a company, no shareholder may illegally take away the contribution capital.Section 2 Organization StructureArticle 37 The shareholders' meeting of a limited liability company shall comprise all the shareholders. It shall be the authority of the company, and shall exercise its authorities according to this Law.Article 38 The shareholders' meeting shall exercise the following authorities:(1) determining the company's operation guidelines and investment plans;(2) electing and changing the director and supervisors assumed bynon-representatives of the employees, and determining the matters concerning their remuneration;(3) deliberating and approving the reports of the board of directors;(4) deliberating and approving the reports of the board of supervisors or the supervisor;(5) deliberating and approving annual financial budget plans and final account plans of the company;(6) deliberating and approving profit distribution plans and loss recovery plans of the company;(7) making resolutions on the increase or decrease of the company's registered capital;(8) making resolutions on the issuance of corporate bonds;(9) adopting resolutions on the assignment, division, change of company form, dissolution, liquidation of the company;(10) revising the articles of association of the company;(11) other functions as specified in the articles of association.Where any of the matters as listed in the preceding paragraph is consented by all the shareholders it in writing, it is not required to convene a shareholders' meeting.A decision may be made directly with the signatures or seals of all the shareholders.Article 39 The shareholders' meeting shall be convened and presided over by the shareholder who has made the largest percentage of capital contributions and shall exercise its authorities according to this Law.Article 40 The shareholders' meeting shall be classified into regular meetings and temporary meetings. The regular meetings shall be timely held in pursuance with the articles of association. Where a temporary meeting is proposed by the shareholders representing 1/10 of the voting rights or more, or by directors representing 1/3 of the voting rights or more, or by the board of supervisors, or by the supervisors of the company with no board of supervisors, a temporary meeting shall be held.Article 41 Where a limited liability company has set up a board of directors, the shareholders' meeting shall be convened by the board of directors and presided over by the chairman of the board of directors. If the chairman is unable or does not perform his duties, the meetings thereof shall be presided over by the deputy chairman of the board of directors. If the deputy chairman of the board of directors is unable or does not perform his duties, the meetings shall be presided over by a director jointly recommended by half or more of the directors. Where a limited liability company has not set up the board of directors, the shareholders' meeting shall be convened and presided over by the executive director.If the board of directors or the executive director is unable or does not perform the duties of convening the shareholders' meeting, the board of supervisors or the supervisor of the company with no board of supervisors may convene and preside over such meetings. If the board of supervisors or supervisor does not convene or preside over such meetings, the shareholders representing 1 / 10 or more of the voting rights may convene and preside over such meetings on his/its own initiative.Article 42 Every shareholder shall be notified 15 days before a shareholders' meeting is held, unless it is otherwise prescribed by the articles of association or it is otherwise contracted by all the shareholders. A shareholders' meeting shall make records for the decisions on the matters discussed at the meeting. The shareholders who attend the meeting shall affix their signatures to the records.Article 43 The shareholders shall exercise their voting rights at the shareholders' meeting on the basis of their respective percentage of the capital contributions, unless it is otherwise prescribed by the articles of association.Article 44 The discussion methods and voting procedures of the shareholders' meeting shall be prescribed in the articles of association, unless it is otherwise provided for by this Law. A resolution made at a shareholders' meeting on amending the articles of association, increasing or reducing the registered capital, merger, division, dissolution or change of the company type shall be adopted by the shareholders representing 2 / 3 or more of the voting rights.Article 45 The board of directors established by a limited liability company shall comprise 3 up to 13 members, unless it is otherwise provided for in Article 51 of this Law. If a limited liability company established by 2 or more state-owned enterprises or other state-owned investors, the board of directors shall comprise the representatives of employees of this company. The board of directors of any other limited liability company may also comprise the representatives of employees of the company concerned. The employees' representatives who are to serve as the board of directors shall be democratically elected by the employees of the company through the assembly of the representatives of employees, the assembly of employees of the company or or by any other means. The board of directors shall have one board chairman and may have one or more deputy chairman. The appointment of the chairman and deputy chairman shall be prescribed in the articles of association.Article 46 The terms of office of the directors shall be provided for in the articles of association, but each term of office shall not exceed 3 years. The directors may, after the expiry of their terms of office, hold a consecutive term uponre-election. If no reelection is timely carried out after the expiry of the term of office of the directors, or if the number of the members of the board of directors is less than the quorum due to the resignation of some directors from the board of directors prior to the expiry of their term of office, the original directors shall, before the newly elected directors assume their posts, exercise the authorities of the directors according to laws, administrative regulations as well as the articles of association.Article 47 The board of directors shall be responsible for the shareholders' meeting and exercise the following authorities:(1) convening shareholders' meeting and reporting on the status of work thereto;。
美国标准公司法中文.
美国示范公司法第一章总则第一节简称和权力的保留§ 1.01.简称§ 1.02. 保留修订和废除本法的权力第二节申请文件§ 1.20.申请条件与外部事实§ 1.21.表格§ 1.22申报费、服务费以及复印费§ 1.23.文件生效时间与日期§ 1.24.对已申请文件的纠正§ 1.25州务长官的备案归档职责§ 1.26.对州务长官拒绝接受文件归档时的上诉§ 1.27.已归档文件副本的证据效力§ 1.28.公司存在的证明书§ 1.29对签署假文件的惩罚第三节州务长官§ 1.30.州务长官的权力第四节定义§ 1.40.本法案中的定义§ 1.41.通知§ 1.42.股东人数第一节简称和权力保留§ 1.01.简称：本法应被称为，并被引用为" (州的名称) " 公司法。
§ 1.02.保留修订和废除本法的权力(州立法机构的名称)有权随时修订或废除本法的全部或部分条款，并且原来受本法制约的所有本州和外州的公司都受本法的修订或废除的调整。
第二节申请文件§ 1.20. 申请文件与外部事实* 凡应被州务长官归档的申请文件应该符合本节规定的申请条件以及其他任何章节对这些条件所作的增补和变动。
* 本法必须规定要向州务长官办公室提出申请文件。
* 申请文件应包含本法要求的所有信息，也可以包含其他的信息。
* 申请文件应使用打印形式或印刷形式，如果采用电子传送，则应该使用一种可以通过打印和印刷恢复或复制的格式。
* 申请文件应采用英语书写。
公司的名称如果是采用英文字母或阿拉伯数字或罗马数字书写的，则可以不必使用英语，外州公司存在所要求的证明书，如果附带相当真实可靠的英文翻译文本，则也可以不使用英语。
* 申请文件应由下列人员来签署：(1) 本州公司和外州公司的董事会主席，或者是总裁或是其他高级职员；(2) 公司还没有选出董事或公司还没有设立的，则由其中的一个发起人；或(3) 如果公司处于接收人、托管人或其他法院指定的受托人的控制之中，则由该受托人签署。
- 1、下载文档前请自行甄别文档内容的完整性，平台不提供额外的编辑、内容补充、找答案等附加服务。
- 2、"仅部分预览"的文档,不可在线预览部分如存在完整性等问题,可反馈申请退款(可完整预览的文档不适用该条件!)。
- 3、如文档侵犯您的权益，请联系客服反馈,我们会尽快为您处理(人工客服工作时间：9:00-18:30)。
A Brief Introduction to Corporate Law of USA 美国公司法概要吴越编译一、公司的特征与分类CHARACTERISTICSCLASSIFICATIONSCORPORATIONS 示范公司法⏹REVISED MODEL BUSINESS CORPORATION ACT (RMBCA)◆1984◆AS ADOPTED BY INDIVIDUAL STATES◆美国示范公司法（RMBCA），又译美国标准公司法。
美国各州都有自己的公司法，尤其以特拉华州公司法最有代表性。
公司的特征⏹CHARACTERISTICS 特征◆LEGAL ENTITY◆OWNED BY SHAREHOLDERS◆MANAGEMENT♦DIRECTORS♦OFFICERS◆LIMITED LIABILITY分类⏹CLASSIFICATIONS◆PUBLIC CORPORATION公众公司♦GOVERNMENTAL UNIT♦QUASI-GOVERNMENT ENTITY◆PRIVATE CORPORATION私人公司♦FOR PROFIT BUSINESS♦NON-PROFIT ORGANIZATION股份公司与有限公司⏹CLASSIFICATIONS◆PUBLICLY HELD股份公司（开放式公司）♦FREELY TRADED SHARES♦PUBLIC MARKET FOR SHARES(WHETHER OR NOT LISTED ONNATIONAL EXCHANGE)◆CLOSELY HELD有限公司（封闭式公司）♦SMALL NUMBER OF SHAREHOLDERS♦RESTRICTIONS ON TRANSFER OFSHARES职业性公司（律师事务所、会计师事务所等）⏹CLASSIFICATIONS◆PROFESSIONAL CORPORATIONS♦“PC” OR “SC” 职业性公司♦MEMBERS OF A GIVENPROFESSION ARESHAREHOLDERS♦NO LIMITED LIABILITY FORPROFESSIONAL MALPRACTICE依据所得税缴纳方式的公司分类⏹CLASSIFICATIONS◆INCOME TAX STATUS所得税地位♦“C” CORPORATION “C”类公司•INCOME IS TAXED AT THECORPORATION LEVEL•SHAREHOLDERS TAXED ONDIVIDENDS THEY RECEIVE♦“S” CORPORATION “S”类公司•NO TAX AT CORPORATION LEVEL•PROFITS PASS THROUGH TO二、公司的设立过程INCORPORATION PROCESS公司的设立⏹INCORPORATION PROCESS 公司设立过程◆INCORPORATORS♦RESPONSIBLE FOR CREATION OFCORPORATION⏹ARTICLES OF INCORPORATION 设立章程♦SIGNED BY INCORPORATOR(S)♦FILED WITH STATE (WI –DEPARTMENT OF FINANCIALINSTITUTIONS)♦EXISTENCE BEGINS WHEN ACCEPTED公司章程⏹ARTICLES OF INCORPORATION 章程◆NAME♦MUST SPECIFICALLY DESIGNATEAS CORPORATION (“CORP.”,“COMPANY”, “INC.”, “LTD”)♦CANNOT BE DECEPTIVELYSIMILAR TO ANOTHERCORPORATION’S NAME公司章程续⏹ARTICLES OF INCORPORATION 章程◆DURATION♦PERPETUAL, OR♦LIMITED PERIOD◆PURPOSE♦SPECIFIC (OR LIMITED)♦ANY LAWFUL BUSINESS◆NUMBER OF AUTHORIZED SHARES公司章程续⏹ARTICLES OF INCORPORATION 章程◆REGISTERED OFFICE AND AGENT♦OFFICE MUST BE IN STATE♦AGENT MUST BE RESIDENT OFSTATE◆NAME AND ADDRESS OFINCORPORATOR(S)内部管理文件⏹BYLAWS 内部管理规则◆DETAILED RULES THAT CONTROLINTERNAL MATTERS OFCORPORATION◆USUALLY, BOTH BOD ANDSHAREHOLDERS HAVE POWER TOCREATE, AMEND OR REPEAL公司设立的效力⏹CORPORATE POWERS 公司的权力、公司设立的效力◆GRANTED BY STATE LAW◆EXAMPLES♦PERPETUAL EXISTENCE♦FILE LAWSUITS♦OWN PROPERTY♦MAKE CONTRACTS♦PERFORM ACTS NECESSARY TOCONDUCTING LAWFUL BUSINESS越权规则⏹“ULTRA VIRES” 越权规则◆ACTS THAT ARE BEYOND CORPORATEPOWERS OR PURPOSE STATED INARTICLES OF INCORPORATION◆FOLLOWING CAN SUE TO PREVENT♦SHAREHOLDER♦CORPORATION, AGAINST OFFICERSOR DIRECTORS♦STATE ATTORNEY GENERAL按设立地分类⏹DOMESTIC CORPORATION 本州公司⏹FOREIGN CORPORATION 外州公司◆DOING BUSINESS IN ANY STATE OTHERTHAN STATE IN WHICH INCORPORATED◆REGISTERED AGENT AND OFFICE◆CANNOT SUE IN THAT STATE UNTILOBTAINING “CERTIFICATE OFAUTHORITY”⏹ALIEN CORPORATION 外国公司◆INCORPORATED IN A FOREIGN公司发起人⏹PROMOTERS 发起人◆PREINCORPORATION CONTRACTS♦CORPORATION NOTAUTOMATICALLY LIABLE♦TO BE LIABLE, MUST “ADOPT”THE PROMOTER’S CONTRACTAFTER COMING INTO EXISTENCE先公司合同⏹PROMOTERS 发起人◆PREINCORPORATION CONTRACTS♦PROMOTER IS PERSONALLY LIABLE♦AVOIDING LIABLILITY•IRREVOCABLE OFFER TO CORP•SPECIFIC CONTRACT TERMS•PROMOTER, THIRD PARTY ANDCORP ENTER INTO “NOVATION”•RELEASE FROM THIRD PARTY公司设立瑕疵⏹DEFECTIVE INCORPORATION 设立瑕疵◆“DE JURE” –IN TOTAL COMPLIANCEWITH STATE STATUTE◆“DE FACTO” 事实公司♦ELEMENTS:•EXISTING STATE STATUTE•GOOD FAITH EFFORT TO COMPLY•CONDUCTING BUSINESS A CORP♦ONLY THE STATE CAN CHALLENGECORP’S EXISTENCE冒牌公司⏹DEFECTIVE INCORPORATION◆CORP BY ESTOPPEL 冒牌公司♦THIRD PARTY CONDUCTS BUSINESSWITH ANOTHER BUSINESS♦THIRD PARTY BELIEVES OTHERBUSINESS TO BE A CORP♦THIRD PARTY CANNOT HOLD“SHAREHOLDERS” (OWNERS)PERSONALLY LIABLE IF BUSINESSFAILED TO PROPERLY INCORPORATE揭开公司面纱⏹“PIERCING CORPORATE VEIL” PERSONAL LIABILITY IMPOSED UPON SHAREHOLDERS◆CIRCUMSTANCES CONSIDERED♦UNDERCAPITALIZATION♦FAILURE TO OBSERVE FORMALITIES♦NONPAYMENT OF DIVIDENDS♦SIPHONING OF FUNDS BYCONTROLLING SHAREHOLDER♦NONFUNCTIONING OF OTHER揭开公司面纱续⏹“PIERCING CORPORATE VEIL”◆CIRCUMSTANCES CONSIDERED♦USE OF CORP AS FACADE FORCONTROLLING SHAREHOLDER’SOTHER FINANCIAL AFFAIRS♦FRAUD, OR OTHER INJUSTICE三、公司的融资结构FINANCIAL STRUCTURE融资结构：公司证券分类⏹“SECURITY”证券◆STOCK (EQUITY SECURITY)股票♦OWNERSHIP INTEREST◆BOND (DEBT SECURITY)债券♦HOLDER IS A CREDITOR OFCORPORATION股东权益⏹RIGHTS OF SHAREHOLDER◆DIVIDENDS◆PARTICIPATE IN CONTROL (VOTEON MAJOR ISSUES ATSHAREHOLDERS’ MEETING)◆SHARE OF NET ASSETS UPONLIQUIDATION OF CORPORATION股票分类：普通股⏹STOCK (SHARES) CLASSES股票分类◆COMMON STOCK♦BASIC GROUP OF OWNERS♦VOTING RIGHTS优先股⏹STOCK CLASSES◆PREFERRED STOCK优先股♦RECEIVE SPECIFIED PRIORITIES•ORDINARILY, RIGHT TO DIVIDENDBEFORE COMMON STOCKSHAREHOLDERS♦MAY BE “CUMULATIVE”•RIGHT TO DIVIDEND CARRIESFORWARD (AND ACCUMULATES)IF NOT PAID IN CURRENT YEAR优先股续⏹STOCK CLASSES◆PREFERRED STOCK♦MAY BE “CALLABLE”•CORP CAN PURCHASE FROMSHAREHOLDER AT CORP’SOPTION•MAY BE “CONVERTIBLE” INTOCOMMON STOCK股票的其他分类⏹STOCK CATEGORIES◆“AUTHORIZED” –CORP MAY ISSUE UP TO THISAMOUNT AS STATED IN ARTICLES OFINCORPORATION 授权发行的股份◆“ISSUED” –SOLD OR OTHERWISETRANSFERRED BY CORPORATION TOSHAREHOLDERS 已发行股份◆“OUTSTANDING” –HELD BY SHAREHOLDERSAT ANY GIVEN POINT IN TIME 股东持有的股份◆“TREASURY” –PREVIOUSLY ISSUED, BUTHAVE BEEN REACQUIRED BY CORP 公司回购的股份（无表决权）取得股份的对价（方式）⏹CONSIDERATION FOR STOCK◆CASH现金◆PROPERTY财产◆PROMISSORY NOTE可转让的票据◆SERVICES PERFORMED已完成服务◆PROMISE TO PERFORM SERVICESIN THE FUTURE承诺的服务认股协议⏹PRE-INCORPORATION SUBSCRIPTION AGREEMENTS◆OFFER BY SHAREHOLDER TO BUYSTOCK IN CORP NOT YET FORMED◆RMBCA TREATS AS IRREVOCABLEOFFER FOR 6 MONTHS AFTER DATE OFOFFER♦WISCONSIN –OFFER ISAUTOMATICALLY ACCEPTED BYCORP UPON FORMATION OF CORP“发水股份”（出资瑕疵）⏹“WATERED STOCK” 发水股票◆STOCK THAT HAS BEEN ISSUED FORINADEQUATE CONSIDERATION♦EXAMPLES•OVERVALUED REAL ESTATE•PROMISE OF FUTURE SERVICESTHAT IS NOT PERFORMED公司债券的种类⏹BOND 有担保债券◆A LOAN OF MONEY TO CORP◆HOLDER ENTITLED TO PERIODICPAYMENT OF INTEREST AND RETURNOF PRINCIPAL WHEN BOND “MATURES”◆SECURED BY SPECIFIC CORPORATEPROPERTY⏹DEBENTURE 无担保债券◆UNSECURED LOAN, SO THAT HOLDER ISA GENERAL CREDITOR OF CORP债券承销协议⏹INDENTURE债券承销协议◆AGREEMENT BETWEEN CORPISSUING BOND AND THEFINANCIAL INSTITUTIONADMINISTERING THE BOND公司证券转让：记名股票⏹TRANSFER OF SECURITIES证券转让◆STOCK CERTIFICATES股权证书♦REGISTERED记名式•TRANSFERRED BY OWNERSIGNING ON CERTIFICATE,NAMING TRANSFEREE, ANDRETURNING TO CORP•CORP ISSUES NEW CERTIFICATE INNAME OF TRANSFEREE不记名股票⏹TRANSFER OF SECURITIES◆STOCK CERTIFICATES♦BEARER不记名式•NO SPECIFIC SHAREHOLDERNAMED ON CERTIFICATE•SHAREHOLDER IS WHOEVERHAS PHYSICAL POSSESSIONOF THE CERTIFICATE上市公司股份转让⏹TRANSFER OF SECURITIES◆MODERN PRACTICE FOR PUBLICLYTRADED CORPORATIONS 上市公司股票♦NO PHYSICAL CERTIFICATE♦OFTEN HELD IN “DEPOSITORY”AND/OR IN BROKER ACCOUNT, WHOKEEP ACCOUNT RECORDS (RATHERTHAN PYSICAL CERTIFICATES)公司红利分配方式⏹DIVIDENDS 红利◆THREE TYPES♦CASH现金♦PROPERTY财产♦STOCK股票◆NO AUTOMATIC RIGHT TODIVIDEND IN A GIVEN YEAR非法红利⏹DIVIDENDS◆ILLEGAL DIVIDENDS非法分红♦CORP INSOLVENT, OR ISSUINGWOULD CAUSE CORP TOBECOME INSOLVENT♦DIRECTORS WHO APPROVE MAYBE PERSONALLY LIABLE三、公司的管理MANAGEMENT公司的管理层次⏹SHAREHOLDERS股东◆OWNERS◆PARTICIPATE IN MAJOR DECISIONS⏹BOARD OF DIRECTORS董事◆POLICY DECISIONS◆ELECT OFFICERS◆DECIDE TO ISSUE DIVIDENDS⏹OFFICERS经理、高管◆DAY-TO-DAY OPERATION OR BUSINESS股东大会⏹SHAREHOLDERS◆SHAREHOLDERS MEETING♦AT LEAST ANNUALLY♦MUST BE GIVEN WRITTENNOTICE OF PLACE AND TIME♦ELECT DIRECTORS♦VOTE ON OTHER MAJOR ISSUES股东大会的要求⏹SHAREHOLDERS MEETING◆QUARUM 百分比要求♦MINIMUM NUMBER OFSHAREHOLDERS (OR RIGHT TO VOTESHARES) THAT MUST BE PRESENT ATMEETING IN ORDER TO CONDUCTBUSINESS◆MAY TAKE ACTION WITHOUT MEETING,IF UNANIMOUS WRITTEN CONSENT OFSHAREHOLDERS累积投票制⏹SHAREHOLDERS MEETING◆CUMULATIVE VOTING累积投票♦ONLY FOR ELECTION OF DIRECTORS♦STATE LAW OR BY-LAWS MUSTPERMIT♦THE NUMBER OF VOTES EACHSHAREHOLDER RECEIVES (USUALLYONE PER SHARE) MULTIPLIED BY THENUMBER OF DIRECTORS BEINGELECTED AT THAT MEETING表决权代理与表决权信托⏹SHAREHOLDERS MEETING◆PROXY VOTING 表决权代理♦SHAREHOLDER DESIGNATES A PARTY WHOCAN VOTE ON BEHALF OF SHAREHOLDER(OFTEN CORPORATE MANAGEMENT)◆VOTING TRUST表决权信托♦SHAREHOLDERS ASSIGN SHARES TOTRUSTEE, WHO VOTES ACCORDING TOTRUST AGREEMENT♦SHAREHOLDERS STILL RECEIVE DIVIDENDS投票协议⏹SHAREHOLDERS MEETING◆VOTING AGREEMENT 投票协议♦CONTRACT BETWEENSHAREHOLDERS TO CAST THEIRVOTES IN A CERTAIN WAY优先认股权⏹SHAREHOLDERS MEETING◆PREEMPTIVE RIGHTS优先认购权♦RIGHT OF SHAREHOLDER TOPURCHASE AMOUNT OF SHARESIN NEW ISSUANCE SO THATPERCENTAGE OWNERSHIPINTEREST IS MAINTAINED股东查阅权⏹SHAREHOLDER’S RIGHT TO REVIEW CORPORATE RECORDS股东查阅权◆MUST BE CURRENT SHAREHOLDER◆WRITTEN DEMAND STATING THEPURPOSE◆MADE IN GOOD FAITH◆PROPER PURPOSE董事会⏹BOARD OF DIRECTORS 董事会◆ACT AS A GROUP, NOT INDIVIDUALLY◆MAY HAVE ONLY ONE DIRECTOR◆MAY HAVE “STAGGERED TERMS”◆（限制性条款，绊脚石条款）◆MID-TERM VACANCY USUALLY FILLEDBY BOD UNTIL NEXT SHAREHOLDERMEETING。