英国公司法讲义1

University of Exeter Business School

Corporate Law 2011/2012

Part A (Sections 1-3): CREATING THE COMPANY

SECTION 1 - THE COMPANY IN CONTEXT

Material to accompany lectures and lecture slides

Types of Business Vehicle

Partnership Act 1890

PA 1890 s.1(1): Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.

Companies excluded from definition: s. 1(2)

The ‘firm’: s. 4(1) PA 1890

Khan v Miah [2000] 1 WLR 2123

Limited Partnerships Act 1907

Limited Liability Partnerships Act 2000

S. 1 LLPA 2000:

(1) There shall be a new form of legal entity to be known as a limited liability partnership.

(2) A limited liability partnership is a body corporate (with legal personality separate from that of its members) which is formed by being incorporated under this Act ….

S. 2 LLPA 2000: (1) For a limited liability partnership to be incorporated – (a) two or more persons associated for carrying on a lawful business with a view to profit must have subscribed their names to an incorporation document.

LLP Regulations 2001

Companies Act 2006

S.7 CA 2006:

(1) A company is formed under this Act by one or more persons –

(a) subscribing their names to a memorandum of association …, and

(b) complying with the requirements of this Act as to registration …

(2) A company may not be so formed for an unlawful purpose.”

Further information about the types of business enterprise is available at:

Further information with a practical focus can be found at Business Link:

/bdotg/action/layer?r.s=tl&r.l1=1073858805&r.lc=en&topicId =1085161962

Types of Company

S. 3: (1) A company is a “limited company” if the liability of its members is limited by its constitution. It may be limited by shares or limited by guarantee.

(2) If their liability is limited to the amount, if any, unpaid of the shares held by them, the company is “limited by shares”.

(3) If their liability is limited to such amount as the members undertake to contribute to the assets of the company in the event of its being wound up, the company is “limited by guarantee”.

(4) If there is no limit on the liability of its members, the company is an “unlimited company”. s. 4(1): A “private company” is any company that is not a public company.

(2) A “public company” is a company limited by shares or limited by guarantee and having a share capital –

(a) whose certificate of incorporation states that it is a public company, and

(b) in relation to which the requirements of this Act, or the former Companies Acts, as to registration or re-registration as a public company have been complied with …. Name: s. 58(2); s. 59(1)

Small co: s. 382(3)

Medium-sized co: s. 465(3)

S. 1159(1): A company is a “subsidiary” of another company, its “holding company”, if that other company –

(a) holds a majority of the voting rights in it, or

(b) is a member of it and has the right to appoint or remove a majority of its board of directors, or

(c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it, or if it is a subsidiary of a company that is itself

a subsidiary of that other company.

(2) A company is a “wholly-owned subsidiary” of another company if it has no members except that other and that other’s wholly-owned subsidiaries or persons acting on behalf of that other or its wholly-owned subsidiaries.” (see also Schedule 6)

S.99 A company may by re-registration under this Part alter its status-

(a) from a private company to a public company (see sections 90 to 96);

(b) from a public company to a private company (see sections 97 to 101);

(c) from a private limited company to an unlimited company (see sections 102 to 104);

(d) from an unlimited private company to a limited company (see sections 105 to 108);

(e) from a public company to an unlimited private company (see sections 109 to 111). Locating Company Law

Welton v Saffery [1897] AC 299:

“These companies are the creature of statute” (Lord Macnaghten)

Ooregum Gold Mining Co of India Ltd v Roper [1892] AC 125

“ … the whole structure of a limited company owes its existence to the Act of Parliament, and it is to the Act of Parliament one must refer to see what are its powers, and within what limits it is free to act.” (Lord Halsbury)

Companies Act 2006 (CA 2006) (royal assent on 8 November 2006, gradually brought into force through 2007-9, completed 1 October 2009)

Insolvency Act 1986 (IA 1986)

Company Directors Disqualification Act 1986 (CDDA 1986)

Financial Services and Markets Act 2000 (FSAMA 2000)