新加坡公司法-中文版
新加坡公司法简介
Tax transpare nt
Exists subject to Limited Partnership Agreement, which usually states a fixed term
Firm
Personal liability of the owner • Partners personally liable for debts and losses resulting from their own wrongful actions Partners not personally liable for debts and losses of LLP incurred by other partners
4
Evolution of Firms
Sole proprietorship
Limited partnership
Corporation
LLC, LLP, Business Trust, etc
Selection of Business Forms
• What are the considerations? • Liability of the owner • Management of the business • Formalities/legal requirement • Transferability • Legal status • Tax treatment • Duration
新加坡公司法简介 companylaw 2015-2016 master lawsseminar dr.lin lin assistant professor nus law basic concepts corporationsole proprietorship llc, llp, business trust, etc limited partnership evolution firmsselection businessforms formalities/legalrequirement legalstatus taxtreatment durationsole proprietorship partnerships companies general partnership limited partnership llp private co joint venture? public co list co firm personal liability ownermanagement businesscapital contribution legal status tax treatment duration general partnership partners personally liable partnership'sdebts lossesincurred otherpartners partners have equal management rights, unless otherwise agreed upon partners generally contribute cash, property separatelegal entity cansue firm'sname cannotown property firm'sname tax transparen existssubject partnershipagreement, which usually states fixedterm limited partnership generalpartner personally liable limitedpartner personallyliable partnershipbeyond his agreed contribution generalpartner(s)
新加坡公司法-中文
新加坡公司法-中文第一节导言第二节公司成立及其后果第三节公司治理第四节公司权利的行使第五节股东的救济第六节公司股份第七节公司债据与资产抵押第八节公司困境第九节公司解散一16.1.1 在新加坡，与公司有关的主要法律是《公司法（Cap50, 1994 Rev Ed）》(以下称“公司法”)。
值得注意的是，一些特殊类型的公司，除了公司法之外，还要受到其他成文法的规制。
如保险公司和银行，还要分别受《保险法（Cap142,1994 Rev Ed）和《银行法（Cap20, 1994 Rev Ed）》的规制。
有限责任合伙组织其实也是公司，受《有限责任合伙组织法（Cap289,1994 Rev Ed）》规制。
在诸如《证券与期货法（Cap289, 1994 Rev Ed）》等其他成文法中，也有一些与公司有关的条款。
16.1.2 应该注意的是，普通法也会对与公司有关的成文法规范进行补充。
返回顶部二16.2.1 根据公司法第17（3）条的规定，拥有20名以上成员的经营组织都必须设立为公司。
但该规定并不适用于那些遵照新加坡其他成文法设立的，由从事特定职业的个人组成的合伙组织（公司法第17（3）条）。
法律职业的从业者，受《法律职业法（Cap161,1994 Rev Ed）》的规制，他们可以设立成员超过20人的合伙组织。
16.2.2 一般来说，只要提交相应的文件，缴纳规定的费用，任何人都可以在新加坡通过登记设立公司。
设立公司时，必须提交的最重要的文件是公司章程和组织规章，公司法第19（1）条对此作了强制性要求。
公司章程和组织规章就是公司的宪章。
根据公司法第22（1）条的规定，公司章程必须载明公司名称、公司股本[如果有的话]，并表明公司成员承担的是有限责任还是无限责任。
公司组织规章是公司的规章制度，其中也有与公司治理有关的规定。
如果公司章程和组织规章有冲突，前者有优先效力。
16.2.3 公司章程一经登记，登记官便签发设立通知，宣布公司成立并在通知中载明成立的日期。
FINANCE COMPANIES ACT新加坡财务公司法
THE STATUTES OF THE REPUBLIC OF SINGAPORE FINANCE COMPANIES ACT(CHAPTER108)(Original Enactment:Act43of1967)REVISED EDITION2011(15th July2011)Prepared and Published byTHE LAW REVISION COMMISSIONUNDER THE AUTHORITY OFTHE REVISED EDITION OF THE LAWS ACT(CHAPTER275)2011Ed.CHAPTER108Finance Companies ActARRANGEMENT OF SECTIONSPART IPRELIMINARYSection1.Short title2.InterpretationPART IILICENSING OF FINANCE COMPANIES3.Licensing of finance companiese of words“finance company”5.Examination of persons suspected of transacting financingbusiness6.Application for licence7.Minimum capital requirements7A.Capital ratio8.Restriction on opening of branches of finance company9.Mergers,etc.,of finance company10.Control of takeovers of finance companies incorporated inSingapore11.Arrangements affecting control of finance company incorporatedin Singapore12.Control of substantial shareholding in finance companiesincorporated in Singapore13.Power of Authority to require finance company that isincorporated in Singapore to obtain information as to beneficialinterests in shares of finance company14.Amendment of constitution of finance company15.Revocation of licence16.Effect of revocation of licence17.Publication of list of finance companies1PART III RESERVE FUNDS,DIVIDENDS,BALANCE-SHEETS AND INFORMATION Section18.Maintenance of reserve fund by finance companies 18A.Maintenance of adequate provision for bad and doubtful debts 19.Restriction on payment of dividends by finance companies 20.Publication and exhibition of audited balance-sheet 21.Information and statistics to be furnished by finance companies 21A.Monthly statements of advances,loans and credit facilities 21B.Disclosure of interest by directorsPART IVREGULATION OF BUSINESS22.Acknowledgment of indebtedness 23.Dealings by finance companies and credit facilities and limits 24.Dealing by finance company in its own shares,etc.25.Restrictions on trade by finance companies 26.Restrictions on investments by finance companies 27.Restrictions on holding immovable property by finance companies 28.Control over finance companies in the acquisition of shares in companies 29.Power of Authority to secure compliance with sections 23,26,27and 3130.Notices to finance companies 31.Orders by AuthorityPART VMINIMUM LIQUID ASSETS32.Minimum holdings of liquid assets by finance companiesPART VIINSPECTION AND CONTROL OF FINANCE COMPANIES33.Inspection and investigation of finance companies and production of books,etc.34.Information of insolvency,etc.34A.Interpretation of sections 34A to 39Finance Companies2011Ed.C AP .1082Section35.Action by Authority if finance company unable to meet obligations,etc.36.Effect of assumption of control under section 3537.Duration of control 38.Responsibilities of officers,member,etc.,of finance company 39.Remuneration and expenses of Authority and others in certaincasesPART VIAVOLUNTARY TRANSFER OF BUSINESS39A.Interpretation of this Part 39B.V oluntary transfer of business 39C.Approval of transferPART VIISUBMISSION OF FINANCIAL STATEMENTS AND DUTIES OF AUDITORS 40.Directors to submit copy of financial statements 41.Appointment and duties of auditorsPART VIIIMISCELLANEOUS42.Authority to administer Act 43.Prohibition against transacting of financing business on public holidays 44.Priority of specified liabilities 44A.Priority of specified liabilities inter se 45.[Repealed ]46.Memorandum and articles of association of finance company 47.Disqualification or removal of director or executive officer 48.Penalty for offences not otherwise provided for 48A.Composition of offences 48B.Recovery of fees,expenses,etc.49.Offences by directors or managers 50.Falsification of books,documents,etc.51.Holding out as finance company 52.Consent of Public Prosecutor 52A.Jurisdiction of District Court 53.ExemptionsFinance Companies 3C AP .1082011Ed.Section 54.Winding up provisions55.Redemption of securities held by finance company56.Operation of Act not to affect Companies Act57.Regulations An Act to license and control finance companies and for matters connected therewith.[10th January 1968]PART IPRELIMINARYShort title1.This Act may be cited as the Finance Companies Act.Interpretation2.In this Act,unless the context otherwise requires —“agreement ”means an agreement whether formal or informal and whether express or implied;“auditor ”means any person approved by the Authority as a finance company auditor for the purposes of this Act;“Authority ”means the Monetary Authority of Singapore established under section 3of the Monetary Authority ofSingapore Act (Cap.186);“capital funds ”,in relation to a finance company,means the paid-up capital and published reserves of that company,deductionhaving been made in respect of any debit balance appearing in the profit and loss account of the company;“chief executive ”,in relation to a finance company,means any person,by whatever name described,who —(a )is in the direct employment of,or acting for or byarrangement with,the finance company;andFinance Companies2011Ed.C AP .1084(b )is principally responsible for the management andconduct of the business of the finance company;[Act 10of 2013wef 18/04/2013]“company ”means a company incorporated or registered under the Companies Act (Cap.50)or pursuant to any corresponding previous written law;“credit facilities ”means —(a )the granting by a finance company of advances,loansand other facilities whereby a customer of the financecompany has access to funds or financial guarantees;or(b )the incurring by a finance company of other liabilitieson behalf of a customer;“deposit ”means a loan of money at interest or repayable at a premium but does not include a loan to a company or other body corporate upon terms involving the issue of debentures or other securities;“depositor ”means a person entitled,or prospectively entitled,to repayment of a deposit whether made by him or not;“director ”includes any person occupying the position of director of a finance company by whatever name called and includes a person in accordance with whose directions or instructions the directors of a finance company are accustomed to act and an alternate or substitute director;“executive officer ”,in relation to a finance company,means any person,by whatever name described,who —(a )is in the direct employment of,or acting for or byarrangement with,the finance company;and(b )is concerned with or takes part in the management of thefinance company on a day-to-day basis;[Act 10of 2013wef 18/04/2013]“finance company ”means any company licensed under this Act to carry on financing business,and all branches and offices in Singapore of such a company shall be deemed to be one finance company for the purposes of this Act;Finance Companies 5C AP .1082011Ed.“financing business ”means the business of —(a )borrowing money from the public,by acceptance ofdeposits and issuing certificates or other documentsacknowledging or evidencing indebtedness to the publicand undertaking to repay the money on call or after anagreed maturity period;and(b )lending money to the public or to a company deemed tobe related to the finance company by virtue of section 6of the Companies Act (referred to in this Act as therelated company)on the basis that the public or therelated company undertakes to repay the money,whether within an agreed period of time or not,or byinstalments,and includes the business of financing hire-purchase transactions arising out of hire-purchase agreements,as defined in the Hire-Purchase Act (Cap.125),where the money used,or to be used,for such business is borrowed from the public and such other business as the Authority may prescribe for the purposes of this Act;“Government securities ”has the same meaning as in the Government Securities Act (Cap.121A);“licence ”means a licence granted under section 6;[Act 10of 2013wef 18/04/2013]“limited liability partnership ”has the same meaning as in section 2(1)of the Limited Liability Partnerships Act(Cap.163A);“officer ”,in relation to a corporation,includes —(a )a director,secretary or employee of the corporation;(b )a receiver or manager of any part of the undertaking ofthe corporation appointed under a power contained inany instrument;and(c )the liquidator of the corporation appointed in avoluntary winding up;Finance Companies 2011Ed.C AP .1086“partner ”and “manager ”,in relation to a limited liability partnership,have the respective meanings assigned to them in section 2(1)of the Limited Liability Partnerships Act;“person ”includes a corporation;“public company ”means a company incorporated in Singapore other than a private company;“published reserves ”,in relation to a finance company,means reserves which appear in the accounts of the finance company but does not include any reserves which are represented by the writing down of the value of assets or by provision for the depreciation of fixed assets or which are maintained for any specific purposes;“share ”,in relation to a finance company,means a share in the share capital of the finance company and includes an interest in such a share.[33/84;27/94;5/2005]PART IILICENSING OF FINANCE COMPANIESLicensing of finance companies3.—(1)No financing business shall be transacted in Singapore except by a public company that is in possession of a valid licence granted by the Authority authorising it to conduct financing business in accordance with the provisions of this Act.(2)Any person who contravenes subsection (1)shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000or to imprisonment for a term not exceeding 3years or to both.[33/84]Use of words “finance company ”4.—(1)No person or body of persons,whether incorporated or not,other than a finance company licensed under this Act shall,without the consent of the Authority,use the words “finance company ”or anyFinance Companies 7C AP .1082011Ed.of its derivatives in any language,or any other words indicating that it transacts financing business,in the name,description or title under which that person or body of persons is transacting business in Singapore or make or continue to make any representations to that effect in any bill-head,letter-paper,notice,advertisement or in any other manner.(2)Nothing in this section shall prohibit an association of finance companies formed for the protection of common interests from using the words “finance company ”or any of its derivatives in any language as part of its name or description of its activities.Examination of persons suspected of transacting financing business5.—(1)Whenever the Authority has reason to believe that a person is conducting financing business without a licence,the Authority may call for the books,accounts and records of that person in order to ascertain whether or not that person has violated or is violating any provisions of this Act.(2)Any person wilfully refusing to submit such books,accounts and records shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000or to imprisonment for a term not exceeding 12months or to both.[33/84](3)Upon the conviction of any person under subsection (2),the court shall have power to order the production of any books,accounts and records to the Authority.[9/2003](4)Any person failing to comply with any order under subsection (3)shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000or to imprisonment for a term not exceeding 12months or to both and,in the case of a continuing offence,to a further fine not exceeding $500for every day during which the offence continues after conviction.[33/84]Finance Companies 2011Ed.C AP .1088Application for licence6.—(1)Any public company proposing to conduct financing business in Singapore shall,before commencing any such business,apply in writing to the Authority for a licence under this Act.(2)In considering any application by a public company for a licence,the Authority may require to be satisfied as to —(a )the financial condition of the company;(b )the character of the management of the company;(c )the adequacy of the capital structure and earning prospects ofthe company;(d )the objects of the company as disclosed in its memorandum ofassociation;(e )the convenience and needs of the community to be served;and(f )whether the public interest will be served by the granting of alicence.(3)The Authority may grant a licence with or without conditions,or refuse to grant a licence.(4)The Authority may at any time vary or revoke any existing conditions of a licence or impose additional conditions.(5)Where a licence is granted subject to conditions,the finance company shall comply with those conditions and any finance company that fails to comply with any of the conditions of its licence shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000and,in the case of a continuing offence,to a further fine of $2,000for every day during which the offence continues after conviction.[33/84](6)Any person who knowingly or recklessly furnishes any document or information which is false or misleading in a material particular in connection with an application for a licence falling within subsection (1)shall be guilty of an offence and shall be liable onFinance Companies 9C AP .1082011Ed.conviction to a fine not exceeding$50,000or to imprisonment for a term not exceeding3years or to both.[33/84] (7)Every finance company shall pay such annual licence fee (including fees in respect of each of its branches)as the Authority may determine by notice in writing and in such manner as the Authority may determine.[27/94] (8)Any applicant who is aggrieved by the refusal of the Authority to grant a licence under subsection(3)may,within30days of the decision of the Authority,appeal in writing to the Minister whose decision shall be final and shall be given effect to by the Authority.[27/94] Minimum capital requirements7.—(1)Subject to this Act,a company shall not be granted or hold a licence unless—(a)in the case of a finance company which holds a licence tocarry on financing business on18th January1995,its capitalfunds are,subject to this section,not less than$50million;and(b)in the case of a finance company which is granted a licence tocarry on financing business after18th January1995,its issuedand paid-up capital is not less than$50million and its capitalfunds are not less than that amount.[27/94] (2)Notwithstanding subsection(1)(a),the Authority may,at any time,after8years from18th January1995,by order require the issued and paid-up capital of a finance company to which that subsection applies to be not less than$50million within such time as may be specified in that order.[27/94] (3)Subject to subsection(4),a finance company to which subsection(1)(a)applies which has capital funds of less than$50 million on18th January1995shall be exempt from the requirement of that provision for8years from18th January1995and shall not duringthat period allow its capital funds to be less than its capital funds on that date.[27/94] (4)If20%or more of the issued and paid-up capital of a finance company is acquired by one or more persons who,alone or acting together with any associate or associates,by virtue of such acquisition becomes a substantial shareholder of the finance company on or after 18th January1995,the finance company—(a)shall have not less than$50million in issued and paid-upcapital;and(b)shall cease to be eligible for the exemption undersubsection(3),unless all the new substantial shareholders are finance companies each with capital funds of not less than$50million at the time of the acquisition.[27/94] (5)A finance company shall not reduce its paid-up capital during the currency of its licence without the approval of the Authority.[27/94] (6)The Authority may restrict or suspend the operations of a finance company which fails to comply with subsection(2),(3),(4)or(5).[27/94] (7)In this section,“substantial shareholder”has the same meaning as in section81of the Companies Act(Cap.50).[27/94] Capital ratio7A.—(1)The Authority may require every finance company to maintain capital funds in Singapore in proportion to its total assets or to every category of assets at such ratio or ratios as may from time to time be determined by the Authority by notice in writing.[27/94] (2)A finance company shall maintain a capital adequacy ratio of not less than12%or such other percentage as may be determined by the Authority from time to time,as calculated in accordance with suchform,content and manner as may be determined by the Authority by notice in writing.[27/94] (3)The Authority may suspend or restrict the operations of a finance company which fails to comply with subsection(2)or any requirement of the Authority under subsection(1).[27/94] Restriction on opening of branches of finance company 8.—(1)No finance company shall open any new branch,agency or office,whether in Singapore or elsewhere,without submitting an application in writing to the Authority.(2)In considering the application,the Authority may require to be satisfied by an inspection under section33or otherwise,as to—(a)the financial condition of the company;(b)the general character of the management of the company;(c)the adequacy of the capital structure and earning prospects ofthe company;(d)the convenience and needs of the community to be served;and(e)whether the public interest will be served by the opening or,asthe case may be,change of location of the place of business.(3)Upon being so satisfied as to the matters referred to in subsection(2),the Authority may—(a)grant the application;or(b)without assigning any reason,refuse to grant the application, and the decision of the Authority shall be final.(4)Any finance company which fails to comply with subsection(1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding$2,000for every day during which the default continues.[33/84]Mergers,etc.,of finance company9.—(1)No finance company carrying on business in Singapore shall be merged or consolidated with or acquire a majority interest in any other finance company without the prior approval of the Authority.(2)In considering such an application,the Authority shall have power to call for such information as it may require.(3)The Authority may approve or refuse the application. Control of takeovers of finance companies incorporated in Singapore10.—(1)This section and sections11and12shall apply to and in relation to all natural persons whether resident in Singapore or not and whether citizens of Singapore or not,and to all bodies corporate or unincorporate,whether incorporated or carrying on business in Singapore or not.[33/84] (2)Without prejudice to section9,no person shall enter into an agreement to acquire shares of a finance company that is incorporated in Singapore by virtue of which he would,if the agreement is carried out,obtain effective control of that finance company without first notifying the Authority of his intention to enter into the agreement and obtaining the approval of the Authority to his entering into the agreement.[33/84](3)For the purposes of this section—(a)a person shall be regarded as entering into an agreement byvirtue of which he would obtain effective control of a financecompany if the person alone or acting together with anyassociate or associates of that person would be in a position tocontrol not less than20%of the voting power in the financecompany or would hold interests in not less than20%of theissued shares of the finance company;(b)a reference to an agreement by which a person would obtaineffective control of a finance company that is incorporated inSingapore includes a reference to an agreement by which theperson would acquire any interest in shares in the finance company where,upon the acquisition of those interests and of any other interests in other shares of the finance company that he has offered to acquire,he would have effective control of the finance company;(c)a reference to a person offering to acquire interests in sharesincludes—(i)a reference to a person making or publishing astatement,however expressed,that expressly orimpliedly invites a holder of interests in shares tooffer to dispose of interests in shares;and(ii)a reference to a person taking part in or proposing to take part in negotiations with a view to the acquisitionof shares;(d)a person holds an interest in a share if he has any legal orequitable interest in that share and,without limiting the generality of the foregoing,an interest in shares shall have the meaning assigned to that expression in section7(6)to(10)of the Companies Act(Cap.50);(e)a reference to the voting power in a finance company is areference to the total number of votes that might be cast in the general meeting of the finance company;(f)the following persons are associates of a person:(i)the person’s spouse or a parent or remoter linealancestor,son,daughter or remoter issue,brother orsister of the person;(ii)any partner of the person;(iii)any corporation of which the person is an officer;(iv)where the person is a corporation,any officer of the corporation;(v)any employee or employer of the person;(vi)any officer of any corporation of which the person is an officer;(vii)any employee of a natural person of whom the person is an employee;(viii)any corporation whose directors are accustomed or under an obligation,whether formal or informal,to actin accordance with the directions,instructions orwishes of the person or,where the person is acorporation,of the directors of the person;(ix)any corporation in accordance with the directions, instructions or wishes of which,or of the directors ofwhich,the person is accustomed or under anobligation,whether formal or informal,to act;(x)any corporation in which the person who is in a position to control not less than20%of the votingpower in the corporation;and(xi)where the person is a corporation,a person who is in a position to control not less than20%of the votingpower in the corporation.[33/84] (4)Any person who contravenes subsection(2)shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000or to imprisonment for a term not exceeding3years or to both.[33/84] Arrangements affecting control of finance company incorporated in Singapore11.—(1)No person shall enter into any arrangement in relation to any finance company that is incorporated in Singapore by virtue of which he would,if the arrangement is carried out,obtain control of the finance company without first notifying the Authority of his intention to enter into the arrangement and obtaining the approval of the Authority to his entering into the arrangement.[33/84](2)For the purposes of this section—(a)a person shall be regarded as entering into an arrangement byvirtue of which he would obtain control of a finance companyif he alone or acting together with an associate or associateswould be in a position to determine the policy of the financecompany;(b)the reference to entering into any arrangement is a referenceto any formal or informal scheme,arrangement orunderstanding,whether expressly or by implication and,inparticular,includes a reference—(i)creating a trust whether express or implied;and(ii)entering into a transaction or agreement,and references to an arrangement shall be construedaccordingly;and(c)the reference to associates of a person has the same referenceas under section10.[33/84] (3)Any person who contravenes subsection(1)shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000or to imprisonment for a term not exceeding3years or to both.[33/84] Control of substantial shareholding in finance companies incorporated in Singapore12.—(1)No person shall enter into any agreement to acquire shares by virtue of which he would,if the agreement is carried out,acquire a substantial shareholding in a finance company that is incorporated in Singapore without first notifying the Authority of his intention to enter into the agreement and obtaining the approval of the Authority to his entering into the agreement.[33/84](2)For the purposes of this section—(a)a reference to an agreement by which a person would acquirea substantial shareholding in a finance company includes areference to an agreement by virtue of which the personwould acquire any interests in shares in the finance companywhere,upon the acquisition by him of those interests or ofthose interests and of any interest in other shares in thefinance company,being interests that he has offered toacquire,he would acquire a substantial shareholding in thefinance company;(b)a reference to a person offering to acquire interests in sharesand to a person having an interest in shares shall be construedin the same way as under section10;and(c)a substantial shareholding has the same meaning as insection81of the Companies Act(Cap.50).[33/84] (3)Any person who contravenes subsection(1)shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000or to imprisonment for a term not exceeding12months or to both.[33/84] Power of Authority to require finance company that is incorporated in Singapore to obtain information as to beneficial interests in shares of finance company13.—(1)The Authority may by notice in writing direct a finance company that is incorporated in Singapore to obtain from any shareholder of the finance company and to transmit to the Authority information—(a)as to whether that shareholder holds any voting shares in thefinance company as beneficial owner or as trustee;and(b)if he holds them as trustee,to indicate,as far as it can,theperson for whom he holds them(either by name or by otherparticulars sufficient to enable those persons to be identified)and the nature of their interest,and the finance company shall comply with that direction within such time as is specified in the notice.[33/84] (2)For the purposes of this section,“voting shares”has the same meaning as in the Companies Act(Cap.50).[33/84](3)A finance company which fails to comply with a direction under this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding$10,000.[33/84] Amendment of constitution of finance company14.—(1)Every finance company that intends to alter its memorandum of association or articles of association shall,before proposing any resolution in this regard,furnish to the Authority for its approval particulars in writing(verified by a statutory declaration made by the secretary of the finance company)of the proposed alteration.(2)The Authority may thereupon—(a)approve the proposed alteration without modification;(b)approve the proposed alteration with modification;or(c)refuse to approve the proposed alteration.(3)If the Authority approves the proposed alteration with modification,the finance company shall adopt the proposed alteration as so modified or not proceed with the proposed alteration.(4)If the Authority refuses to approve the proposed alteration it may request the finance company to withdraw the proposed alteration and the finance company shall comply with the Authority’s request. (5)Any finance company which fails to comply with the requirements of subsection(1)or with any request by the Authority made under subsection(4)shall be guilty of an offence and shall be liable on conviction to a fine not exceeding$1,000for every day during which the default continues after conviction.[33/84] Revocation of licence15.—(1)The Authority—(a)shall,by order,revoke the licence of a finance company if thecompany ceases to carry on the business for which it has beenlicensed in Singapore or goes into liquidation or is wound upor otherwise dissolved;。
新加坡公司法-中文版
新加坡公司法-中文版第十六章公司法第一节导言第二节公司成立及其后果第三节公司治理第四节公司权利的行使第五节股东的救济第六节公司股份第七节公司债据与资产抵押第八节公司困境第九节公司解散第一节导言16.1.1 在新加坡,与公司有关的主要法律是《公司法(Cap50, 1994 Rev Ed)》(以下称“公司法”)。
值得注意的是,一些特殊类型的公司,除了公司法之外,还要受到其他成文法的规制。
如保险公司和银行,还要分别受《保险法(Cap142,1994 Rev Ed)和《银行法(Cap20, 1994 Rev Ed)》的规制。
有限责任合伙组织其实也是公司,受《有限责任合伙组织法(Cap289,1994 Rev Ed)》规制。
在诸如《证券与期货法(Cap289, 1994 Rev Ed)》等其他成文法中,也有一些与公司有关的条款。
16.1.2 应该注意的是,普通法也会对与公司有关的成文法规范进行补充。
第二节公司成立及其后果设立公司的义务16.2.1 根据公司法第17(3)条的规定,拥有20名以上成员的经营组织都必须设立为公司。
但该规定并不适用于那些遵照新加坡其他成文法设立的,由从事特定职业的个人组成的合伙组织(公司法第17(3)条)。
法律职业的从业者,受《法律职业法(Cap161,1994 Rev Ed)》的规制,他们可以设立成员超过20人的合伙组织。
公司的登记16.2.2 一般来说,只要提交相应的文件,缴纳规定的费用,任何人都可以在新加坡通过登记设立公司。
设立公司时,必须提交的最重要的文件是公司章程和组织规章,公司法第19 (1)条对此作了强制性要求。
公司章程和组织规章就是公司的宪章。
根据公司法第22(1)条的规定,公司章程必须载明公司名称、公司股本[如果有的话],并表明公司成员承担的是有限责任还是无限责任。
公司组织规章是公司的规章制度,其中也有与公司治理有关的规定。
如果公司章程和组织规章有冲突,前者有优先效力。
新加坡公司法SEC9
Reading material新加坡公司法—公司解散、揭开公司面纱SECTION 9WINDING UP第九节公司解散16.9.1 Despite the best of efforts, an insolvent company may not be able to overcome its difficulties. In such circumstances, the company may be dissolved to enable its assets to be liquidated so that its creditors may be repaid part of what is owing to them. This process by which a company is dissolved is known as winding up or liquidation. A healthy company may also be wound up if its members no longer wish the business to continue. When a company is wound up, its assets or the proceeds thereto will be used to pay off creditors after which the balance, if any, is distributed pro rata amongst shareholders.16.9.1 即使尽了最大努力，破产公司仍有可能无法摆脱困境。
在这种情况下，公司存续便可以终结以使公司债权人能够得到部分清偿。
公司终结的过程被称为公司解散或清算。
如果公司成员不愿再继续经营，运行良好的公司也可以解散。
公司解散时，公司的资产及收益应用于向债权人清偿，如果还有余额，则应按比例分配给公司股东。
新加坡公司法
CHAPTER 8 THE LAW OF CONTRACTSection 1 IntroductionSection 2 Offer and AcceptanceSection 3 ConsiderationSection 4 Intention to Create Legal RelationsSection 5 Terms of the ContractSection 6 Capacity to ContractSection 7 Privity of ContractSection 8 Discharge of ContractSection 9 MistakeSection 10 MisrepresentationSection 11 Duress, Undue Influence and UnconscionabilitySection 12 Illegality and Public PolicySection 13 Judicial Remedies for Breach of ContractSECTION 1 INTRODUCTION8.1.1 Contract law in Singapore is largely based on the common law of contract in England. Unlike its neighbours Malaysia and Brunei, following Independence in 1965, Singapore’s Parliament made no attempt to codify Singapore’s law ofcontract. Accordingly, much of the law of contract in Singapore remains in the form of judge-made rules. In some circumstances, these judge-made rules have been modified by specific statutes.8.1.2 Many of these statutes are English in origin. To begin with, 13 English commercial statutes have been incorporated as part of the Statutes of the Republic of Singapore by virtue of s 4 of the Application of English Law Act (Cap 7A, 1993 Rev Ed). These are listed in Part II of the First Schedule of this Act. Other statutes, eg the Contracts (Rights of Third Parties) Act (Cap 53B, 2002 Rev Ed), are modelled upon English statutes. There are also other areas where statutory development based on non-English models has taken place, eg the Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed) (which was largely drawn from fair trading legislation enacted in Alberta and Sasketchewan).8.1.3 The rules developed in the Singapore courts do, nevertheless, bear a very close resemblance to those developed under English common law. Indeed, wherethere is no Singapore authority specifically on point, it will usually be assumed that the position will, in the first instance, be no different from that in England.Return to the topSECTION 2 OFFER AND ACCEPTANCEAgreement8.2.1 A contract is essentially an agreement between two or more parties, the terms of which affect their respective rights and obligations which are enforceable at law. Whether the parties have reached agreement, or a meeting of the minds, is objectively ascertained from the facts. The concepts of offer and acceptance provide in many, albeit not all, cases the starting point for analysing whether agreement has been reached.Offer8.2.2 An offer is a promise, or other expression of willingness, by the ‘offeror’ to be bound on certain specified terms upon the unqualified acceptance of these terms by the person to whom the offer is made (the ‘offeree’). Provided the other formation elements (ie consideration and intention to create legal relations) are present, the acceptance of an offer results in a valid contract.8.2.3 Whether any particular statement amounts to an offer depends on the intention with which it is made. An offer must be made with the intention to be bound. On the other hand, if a person is merely soliciting offers or requesting for information, without any intention to be bound, at best, he or she would be making an invitation to treat. Under the objective test, a person may be said to have made an offer if his or her statement (or conduct) induces a reasonable person to believe that the person making the offer intends to be bound by the acceptance of the alleged offer, even if that person in fact had no such intention.Termination of Offer8.2.4 An offer may be terminated by withdrawal at any time prior to its acceptance, provided there is communication, of the withdrawal to the offeree, whether by the offeror or through some reliable source. Rejection of an offer, which includes the making of a counter-offer or a variation of the original terms, terminates the offer. In the absence of an express stipulation as to time, an offer will lapse after a reasonable time. What this amounts to depends on the particular facts of the case. Death of the offeror, if known to the offeree, would render the offer incapable of being accepted by the offeree. Even in the absence of such knowledge, death of either party terminates any offer which has a personal element.Acceptance8.2.5 An offer is accepted by the unconditional and unqualified assent to its terms by the offeree. This assent may be expressed through words or conduct, but cannot be inferred from mere silence save in very exceptional circumstances.8.2.6 As a general rule, acceptance must be communicated to the offeror, although a limited exception exists where the acceptance is sent by post and this method of communication is either expressly or impliedly authorised. This exception, known as the ‘postal acceptance rule’, stipulates that acceptance takes place at the point when the letter of acceptance is posted, whether or not it was in fact received by the offeror.Certainty8.2.7 Before the agreement may be enforced as a contract, its terms must be sufficiently certain. At the least, the essential terms of the agreement should be specified. Beyond this, the courts may resolve apparent vagueness or uncertainty by reference to the acts of the parties, a previous course of dealing between the parties, trade practice or to a standard of reasonableness. On occasion, statutory provision of contractual details may fill the gaps. For more on implication of terms, see Paragraphs 8.5.5 to 8.5.8 below.Completeness8.2.8 An incomplete agreement also cannot amount to an enforceablecontract. Agreements made ‘subject to contract’ may be considered incomplete if the intention of the parties, as determined from the facts, was not to be legally bound until the execution of a formal document or until further agreement is reached.Electronic Transactions Act8.2.9 The Electronic Transactions Act (Cap 88, 1999 Rev Ed) (‘ETA’) clarifies that, except with respect to the requirement of writing or signatures in wills, negotiable instruments, indentures, declarations of trust or powers of attorney, contracts involving immovable property and documents of title (s 4(1)), electronic records may be used in expressing an offer or acceptance of an offer in contract formation (s 11). A declaration of intent between contracting parties may also be made in the form of an electronic record (s 12). The ETA also clarifies when an electronic record may be attributed to a particular person (s 13) and how the time and place of despatch and receipt of an electronic record are to be determined (s 15).Return to the topSECTION 3 CONSIDERATIONDefinition8.3.1 A promise contained in an agreement is not enforceable unless it is supported by consideration or it is made in a written document made underseal. Consideration is something of value (as defined by the law), requested for bythe party making the promise (the ‘promisor’) and provided by the party who receives it (the ‘promisee’), in exchange for the promise that the promisee is seeking to enforce. Thus, it could consist of either some benefit received by the promisor, or some detriment to the promisee. This benefit/detriment may consist of a counter promise or a completed act.Reciprocity8.3.2 The idea of reciprocity that underlies the requirement for consideration means that there has to be some causal relation between the consideration and the promise itself. Thus, consideration cannot consist of something that was already done before the promise was made. However, the courts do not always adopt a strict chronological approach to the analysis.Sufficiency8.3.3 Whether the consideration provided is sufficient is a question of law, and the court is not, as a general rule, concerned with whether the value of the consideration is commensurate with the value of the promise. The performance of, or the promise to perform, an existing public duty imposed on the promisee does not, without more, constitute sufficient consideration in law to support the promisor’s promise. The performance of an existing obligation that is owed contractually to the promisor is capable of being sufficient consideration, if such performance confers a real and practical benefit on the promisor. If the promisee performs or promises to perform an existing contractual obligation that is owed to a third party, the promisee will have furnished sufficient consideration at law to support a promise given in exchange.Promissory Estoppel8.3.4 Where the doctrine of promissory estoppel applies, a promise may be binding notwithstanding that it is not supported by consideration. This doctrine applies where a party to a contract makes an unequivocal promise, whether by words or conduct, that he or she will not insist on his or her strict legal rights under the contract, and the other party acts, and thereby alters his or her position, in reliance on the promise. The party making the promise cannot seek to enforce those rights if it would be inequitable to do so, although such rights may be reasserted upon the promisor giving reasonable notice. The doctrine prevents the enforcement of existing rights, but does not create new causes of action.Return to the topSECTION 4 INTENTION TO CREATE LEGAL RELATIONSContractual Intention8.4.1 In the absence of contractual intention, an agreement, even if supported by consideration, cannot be enforced. Whether the parties to an agreement intended tocreate legally binding relations between them is a question determined by an objective assessment of the relevant facts.Commercial Arrangements8.4.2 In the case of agreements in a commercial context, the courts will generally presume that the parties intended to be legally bound. However, the presumption can be displaced where the parties expressly declare the contrary intention. This is often done through the use of honour clauses, letters of intent, memoranda of understanding and other similar devices, although the ultimate conclusion would depend, not on the label attached to the document, but on an objective assessment of the language used and on all the attendant facts.Social Arrangements8.4.3 The parties in domestic or social arrangements are generally presumed not to intend legal consequences.Return to the topSECTION 5 TERMS OF THE CONTRACTExpress Terms8.5.1 The rights and obligations of contracting parties are determined by first, ascertaining the terms of the contract, and secondly, interpreting those terms. In ascertaining the terms of a contract, it is sometimes necessary, especially where the contract has not been reduced to writing, to decide whether a particular statement is a contractual term or a mere representation. Whether a statement is contractual or not depends on the intention of the parties, objectively ascertained, and is a question of fact. In ascertaining the parties’ intention, the courts take into account a number of factors including the stage of the transaction at which the statement was made, the importance which the representee attached to the statement and the relative knowledge or skill of the parties vis-à-vis the subject matter of the statement.8.5.2 Once the terms of a contract have been determined, the court applies an objective test in construing or interpreting the meaning of these terms. What is significant in this determination therefore is not the sense attributed by either party to the words used, but how a reasonable person would understand those terms. In this regard, Singapore courts have consistently emphasised the importance of the factual matrix within which the contract was made, as this would assist in determining how a reasonable man would have understood the language of the document.8.5.3 Where the parties have reduced their agreement into writing, whether a particular statement (oral or written) forms part of the actual contract depends on the application of the parol evidence rule. In Singapore, this common law rule and its main exceptions are codified in s 93 and s 94 of the Evidence Act (Cap 97, 1997 Rev Ed). Section 93 provides that where ‘the terms of a contract…have been reduced …tothe form of a document…, no evidence shall be given in proof of the terms of such contract …except the document itself’. Thus, no evidence of any oral agreement or statement may be admitted in evidence to contradict, vary, add to, or subtract from the terms of the written contract. However, secondary evidence is admissible if it falls within one of the exceptions to this general rule found in the proviso to s94. Some controversy remains as to whether s 94 is an exhaustive statement of all exceptions to the rule, or whether other common law exceptions not explicitly covered in s 94 continue to be applicable.8.5.4 It should, however, be noted that the scope of s 93 and s 94 has been circumscribed by Parliament in certain circumstances.Implied Terms8.5.5 In addition to those expressly agreed terms, the court may sometimes imply terms into the contract.8.5.6 Generally, any term to be implied must not contradict any express term of the contract.8.5.7 Where a term is implied to fill a gap in the contract so as to give effect to the presumed intention of the parties, the term is implied in fact and depends on a consideration of the language of the contract as well as the surrounding circumstances. A term will be implied only if it is so necessary that both parties must have intended its inclusion in the contract. The fact that it would be reasonable to include the term is not sufficient for the implication, as the courts will not re-write the contract for the parties.8.5.8 Terms may also be implied because this is required statutorily, or on public policy considerations. The terms implied by the Sale of Goods Act (Cap 393, 1994 Rev Ed) (eg s 12(1) – that the seller of goods has a right to sell the goods) provide examples of the former type of implied terms. As for the latter, whilst there has been no specific authority on the point, it is not inconceivable that Singapore courts, like their English counterparts, may imply ‘default’ terms into specific classes of contracts to give effect to policies that define the contractual relationships that arise out of those contracts.Classification of Terms8.5.9 The terms of a contract may be classified into conditions, warranties or intermediate (or innominate) terms. Proper classification is important as it determines whether the contract may be discharged or terminated for breach [as to which see Paragraphs 8.8.11 to 8.8.12 below].8.5.10 The parties may expressly stipulate in the contract how a particular term is to be classed. This is not, however, conclusive unless the parties are found to have intended the technical meaning of the classifying words used. In the absence of express stipulation, the courts will look objectively at the language of the contract to determine how, in light of the surrounding circumstances, the parties intended a particular term to be classed. There are also instances where statutes may stipulatewhether certain kinds of terms are to be treated as conditions or warranties, in the absence of any specific designation by the contracting parties.Exception Clauses8.5.11 Exception clauses that seek to exclude or limit a contracting party’s liability are commonly, but not exclusively, found in standard form agreements. The law in Singapore relating to such clauses is essentially based on English law. The English Unfair Contract Terms Act 1977, which either invalidates an exception clause or limits the efficacy of such terms by imposing a requirement of reasonableness, has been re-enacted in Singapore as the Unfair Contract Terms Act (as Cap 396, 1994 Rev Ed).Incorporation8.5.12 Whether an exception clause will have its intended effect depends on a number of factors. The threshold requirement is that the clause must have been incorporated into the contract. There are generally three ways in which such incorporation may occur. Where a party has signed a contract which contains an exception clause, the signatory is bound by the clause, even if he or she had not read or was unaware of the clause. An exception clause may also be incorporated, in the absence of a signed contract, if the party seeking to rely on the clause took reasonably sufficient steps to draw the other party’s attention to the existence of the clause. The determination of this issue is heavily dependent on the facts of the particular case. Finally, exception clauses may be incorporated because there has been a consistent and regular course of dealing between the parties on terms that incorporate the exception clause. Even if no steps were taken to incorporate the clause in a particular contract between such parties, it may have been validly incorporated by the parties’ prior course of dealing.Construction8.5.13 The next consideration is one of construction (or interpretation). This is necessary to determine if the liability, which the relevant party is seeking to exclude or restrict, falls within the proper scope of the clause. Here, the courts adopt the contra proferentum rule of construction, and will construe exception clauses strictly against parties seeking to rely on them. Nevertheless, the Singapore courts appear to construe clauses which seek to limit liability more liberally than those which seek to completely exclude liability.Unfair Contract Terms Act8.5.14 Finally, the limits placed by the Unfair Contracts Terms Act (Cap 396, 1994 Rev Ed) (the ‘UCTA’) on the operation and efficacy of exceptions clauses must be considered. It should be noted that the UCTA generally applies only to terms that affect liability for breach of obligations that arise in the course of a business or from the occupation of business premises. It also gives protection to persons who are dealing as consumers. Under the UCTA, exception clauses are either rendered wholly ineffective, or are ineffective unless shown to satisfy the requirement of reasonableness. Terms that attempt to exclude or restrict a party’s liability for deathor personal injury resulting from that party’s negligence are rendered wholly ineffective by the UCTA, while terms that seek to exclude or restrict liability for negligence resulting in loss or damage other than death or personal injury, and those that attempt to exclude or restrict contractual liability, are subject to therequirement of reasonableness. The reasonableness of the exception clause is evaluated as at the time at which the contract was made. The actual consequencesof the breach are therefore, in theory at least, immaterial.Return to the topSECTION 6 CAPACITY TO CONTRACTMinors8.6.1 Under Singapore common law, a minor is a person under the age of 21. The validity of contracts entered into by minors is governed by the common law, as modified by the Minors’ Contracts Act (Cap 389, 1994 Rev Ed).Contracts with Minors8.6.2 As a general rule, contracts are not enforceable against minors. However, where a minor has been supplied with necessaries (ie goods or services suitable for the maintenance of the station in life of the minor concerned: see also s 3(3), Sale of Goods Act (Cap 393, 1999 Rev Ed)), the minor must pay for them. Contracts of service which are, on the whole, for the minor’s benefit are also valid. The minor is also bound by certain types of contracts (ie contracts concerning land or shares in companies, partnership contracts and marriage settlements), unless the minor repudiates the contract before attaining majority at age 21 or within a reasonable time thereafter.Minors’ Contracts Act8.6.3 Under s 2 of the Minors’ Contracts Act, a guarantee given in respect of a minor’s contract, which may not be enforceable against the minor, is nevertheless enforceable against the guarantor. Section 3(1) of the Minors’ Contracts Act empowers the court to order restitution against the minor if it is just and equitable to do so.Mental Incapacity and Drunkards8.6.4 A contract entered into by a person of unsound mind is valid, unless it can be shown that that person was incapable of understanding what he or she was doing and the other party knew or ought reasonably to have known of the disability. In this case, the contract may be avoided at the option of the mentally unsound person (assisted by a court-sanctioned representative where necessary). The same principle applies in the case of inebriated persons. Under s 3(2) of the Sale of Goods Act, persons incapacitated mentally or by drunkenness are required to pay a reasonable price for necessaries supplied.Corporations8.6.5 Subject to any written law and to any limits contained in its constitution, a company has full capacity to undertake any business, do any act or enter into any transaction (s 23 – Companies Act, Cap 50, 1994 Rev Ed). Where there are restrictions placed on the capacity of a company and the company acts beyond its capacity, s 25 of the Companies Act validates such ultra vires transactions if they would otherwise be valid and binding. Contracts purportedly entered into by a company prior to its incorporation may be ratified and adopted by the company after its formation (s 41 – Companies Act).8.6.6 A limited liability partnership is also a body corporate under Singapore law – see Limited Liability Partnerships Act 2005 (Act No 5 of 2005). It may, in its own name: sue and be sued in its own name; acquire, own, hold and develop property; hold a common seal; and may do and suffer such other acts and things as any body corporate may lawfully do and suffer – see s 5(1). Section 5(2) also extends s 41 of the Companies Act to apply to a limited liability partnership.Return to the topSECTION 7 PRIVITY OF CONTRACTThird party Enforcement of Contractual Rights Generally not Permitted8.7.1 As a general proposition, only persons who are party (ie ‘privy’) to a contract may enforce rights or obligations arising from that contract. This is sometimes referred to as the ‘privity rule.’8.7.2 A third party who is not privy to a contract is generally not allowed to bring any legal action in his or her own name for breach of contract against a contracting party who fails to perform his or her contractual obligations, even if such failure of performance has caused the third party to suffer a loss.When is Someone Party or Privy to a Contract?8.7.3 There is no clear definition as to when a person is/is not privy to a contract. Generally, a party who is an offeror or offeree will be privy to the contract. However, it seems that merely being mentioned in the contract is not enough.8.7.4 It is, nevertheless, possible to have a multilateral contract where there are multiple offerees (one or more of whom accept the offer on behalf of the others) or where there are multiple offerors (one or more of whom make the offer on behalf of the others). In either case, each offeree or offeror is a joint party to the contract and the privity rule will not apply to them.Non-statutory Exceptions to the Privity Rule8.7.5 The privity rule is not absolute. It is subject to many exceptions. Apart from the possibility of a multilateral or multi-party contract (mentioned above), some other exceptions can be found in the law relating to: (a) agency; (b) trusts; or (c) land (in relation to covenants which ‘run’ with the land or lease). For an in depth discussion of these other legal techniques to circumvent the privity rule, please see Chapters 15 and 18.Statutory Exceptions to the Privity Rule8.7.6 There are also statutory exceptions. Most of these are only applicable to specific and narrowly defined cases. Two examples of such statutes include: (a) the Bills of Exchange Act (Cap 23, 1985 Rev Ed) [see Chapter 22 on Banking Law]; and (b) the Bills of Lading Act (Cap 384, 1994 Rev Ed) [see Chapter 25 on Shipping Law]. Of more general application, the Singapore Parliament enacted the Contracts (Rights of Third Parties) Act (Cap 53B, 2002 Rev Ed) in 2001.Contracts (Rights of Third Parties)Act8.7.7 Section 1 provides that the Contracts (Rights of Third Parties) Act has no retrospective effect – it cannot apply to any contract formed before 1 January2002. Section 1 also provides that the Act does not apply to any contracts which were formed on or after 1 January 2002, but before 1 July 2002, unless the contracting parties expressly provided in their contract for it to do so. Contracts formed on or after 1 July 2002 are always subject to the Act.8.7.8 Where the Act applies, it gives a third party a statutory right to enforce a term of a contract against a party who is in breach of his or her obligations under the contract (the ‘promisor’), even though even though the third party is a volunteerwho has not provided any contractual consideration – see s 2(5).8.7.9 This may occur if either: (a) the contract expressly provides that the third party may enforce a term of the contract in his or her own right – s 2(1)(a); or (b) the contract, ‘purports to confer a benefit on the third party’ – s 2(1)(b). However, s 2(1)(b) is qualified: a third party will not be granted the direct statutory right of suit in the absence of an express provision permitting him or her to do so, ‘if, on a proper construction of the contract, it appears that the parties did not intend the term to be enforceable by the third party.’ – s 2(2).8.7.10 This statutory right of enforcement is not just limited to cases where the promisor is under an obligation to act to confer a positive benefit on the thirdparty. ‘Negative’ benefits, such as the benefit of a term excluding or limiting the third party’s legal liabilities to the promisor, may also be enforced –s 2(5).8.7.11 The third party’s statutory right of enforcement against the promisor is qualified in a number of ways. First, the third party’s statutory right of recovery may be qualified by a defence or set-off which the promisor would have been able to assert vis-à-vis the other party to the contract (the ‘promisee’) – s 4. Second, any sum to be recovered by the third party pursuant to the Act may be reduced to take into account sums recovered by the promisee from the promisor in respect of the promisor’s breach – s 6.8.7.12 Once third party rights are created under the Act, certain restrictions are imposed on the ability of the parties to the contract to vary or rescind their contract if this would extinguish or alter the third party’s rights under the Act – s 3.8.7.13 Though wider in its scope than many of the other legal techniques for circumventing privity, the Act is not of universal application. Section 7 of the Act sets out a number of situations where the Act does not apply. Excluded cases include:(a) contracts on a bill of exchange, promissory note or other negotiable instrument;(b) limited liability partnership agreements as defined under the Limited Liability Partnerships Act 2005 (Act 5 of 2005); (c) the statutory contract binding a company and its members under s39 of the Companies Act (Cap 50, 1994 Rev Ed); (d) third party enforcement of any term of an employment contract against an employee; and (e) third party enforcement of any term (apart from any exclusion or limitation of liability for the benefit of the third party) in a contract for carriage of goods by sea, or a contract for the carriage of goods or cargo by rail, road or air, if such contract is subject to certain international transport conventions.Return to the topSECTION 8 DISCHARGE OF CONTRACTDischarge by Performance8.8.1 If all the contractual obligations as defined by the terms of the contract are fully performed, the contract is brought to an end or ‘discharged’ by performance. In theory, such performance must be precise. However, trivial defects in performance may be ignored as being negligible or ‘de minimis.’ In addition, where full performance is only possible with the cooperation of the other party (as is almost invariably the case with obligations of payment or delivery), tender of performancein circumstances where the other party refuses to accept it is generally deemed to be equivalent to full performance so as to discharge the contract.Non- or Defective Performance8.8.2 In the event that a contractual obligation is not performed or is performed defectively in a non-trivial fashion, Singapore law provides for a variety of legal responses and remedies, depending on the nature of the failure of performance.Lawful Excuses for Breach of Contract8.8.3 If the failure of performance is not subject to any lawful excuse, thecontract is said to be ‘breached.’ In this context, ‘lawful excuses’ may take the following forms.Discharge by Agreement8.8.4 First, just as parties are free to agree to bind themselves to a contract, they are free to negotiate with each other to release themselves from the obligations of。
新加坡公司法-中文版
新加坡公司法-中文版新加坡公司法-中文版第十六章公司法第一节导言第二节公司成立及其后果第三节公司治理第四节公司权利的行使第五节股东的救济第六节公司股份第七节公司债据与资产抵押第八节公司困境第九节公司解散第一节导言16.1.1 在新加坡，与公司有关的主要法律是《公司法（Cap50, 1994 Rev Ed）》(以下称“公司法”)。
值得注意的是，一些特殊类型的公司，除了公司法之外，还要受到其他成文法的规制。
如保险公司和银行，还要分别受《保险法（Cap142,1994 Rev Ed）和《银行法（Cap20, 1994 Rev Ed）》的规制。
有限责任合伙组织其实也是公司，受《有限责任合伙组织法（Cap289,1994 Rev Ed）》规制。
在诸如《证券与期货法（Cap289, 1994 Rev Ed）》等其他成文法中，也有一些与公司有关的条款。
16.1.2 应该注意的是，普通法也会对与公司有关的成文法规范进行补充。
第二节公司成立及其后果设立公司的义务16.2.1 根据公司法第17（3）条的规定，拥有20名以上成员的经营组织都必须设立为公司。
但该规定并不适用于那些遵照新加坡其他成文法设立的，由从事特定职业的个人组成的合伙组织（公司法第17（3）条）。
法律职业的从业者，受《法律职业法（Cap161,1994 Rev Ed）》的规制，他们可以设立成员超过20人的合伙组织。
公司的登记16.2.2 一般来说，只要提交相应的文件，缴纳规定的费用，任何人都可以在新加坡通过登记设立公司。
设立公司时，必须提交的最重要的文件是公司章程和组织规章，公司法第19（1）条对此作了强制性要求。
公司章程和组织规章就是公司的宪章。
根据公司法第22（1）条的规定，公司章程必须载明公司名称、公司股本[如果有的话]，并表明公司成员承担的是有限责任还是无限责任。
公司组织规章是公司的规章制度，其中也有与公司治理有关的规定。
如果公司章程和组织规章有冲突，前者有优先效力。
新加坡公司章程3(主要部分)
公司法第50章私人股份有限责任公司本页为著作的封面，下载以后可以删除本页！【最新资料 Word 版 可自由编辑！！】XXXX有限公司的章程及其细则（于新加坡共和国注册）释义第一条以下词语如无特殊说明，在本文中作如下释义：“公司”指XXXX有限公司；“法规”指公司法第50章；“办公室”指公司成立时的登记办公室；“登记处”指依照公司法第190节成立的登记处；“月”指公历月；“书面方式”指包括所有以打印、印刷、可视方式再现或复制文字的方式。
“秘书”包括包括一个助理秘书以及任何经指定担任公司秘书职务的人士。
“股息”包括红利；“特别决议”有公司法第184节的指定含义；“库存股份”有公司法第76节H款的指定含义；单数形式的词语亦包括复数。
阳性形式的词语亦包括阴性。
此处所述“人”亦包括公司。
表格A第二条包含在公司法第四个计划表格A的规则不适用于公司，除了章程有相同的重述。
私人公司第三条本公司是一家私人公司，据此：（1）转让股份的权利乃以下文所订明的方式受限制。
（2）公司的成员人数（不包括受雇佣于公司的人，亦不包括先前受雇于公司而在受雇用期间及在终止受雇之后，一直作为公司成员的人）以50名为限。
但就本条而言，凡2名或多于2名人士联名持有公司一股或多于一股的股份，该等人士须视为单一名成员。
（3）禁止任何邀请公众人士认购公司的任何股份或债权。
（4）禁止任何邀请公众人士发出活期存款或随时支付，不管是有利息还是没利息。
股份资本和变化的权利第四条根据《公司法》规定，董事会可发行公司股票，所发行的股票可附有董事会按公司通常决议所决定的有关红利、投票资本利润率、或其它事项的优先、延期、或其它特殊权利或限制，但不得影响已经授予任何现存股票股东的任何特权。
第五条根据《公司法》，经一般决议通过，任何优先股均可发行为可赎股份，或按公司意愿，发行成必须赎回的股份。
第六条当股份资本分为不同种类的股票时，每种股票所附带的权利（除非该种股票的发行条件另有规定），经该种发行股票75%的股民书面认可，或经该种股票股民召开股东特别大会通过决议专门许可，则可以变更。
新加坡公司法-英文版
CHAPTER 16 SINGAPORE COMPANY LAWSection 1 IntroductionSection 2 Incorporation and its ConsequencesSection 3 Corporate GovernanceSection 4 Enforcement of Corporate RightsSection 5 Shareholder RemediesSection 6 SharesSection 7 Debentures and ChargesSection 8 Companies in DistressSection 9 Winding upSECTION 1 INTRODUCTION16.1.1 InSingapore, companies are principally governed by the Companies Act (Cap 50, 1994 Rev Ed) (hereinafter “the Act”). It should be noted though that specific types of companies may, in addition to the Companies Act, be regulated by other statutes. For example, insurance companies and banks are also regulated by the Insurance Act (Cap 142, 1994 Rev Ed) and the Banking Act (Cap 20, 1994 Rev Ed) respectively. Limited liability partnerships, which despite their name are companies, are governed by the Limited Liability Partnership Act (Act 5 of 2005). Certain provisions in other statutes such as the Securities and Futures Act (Cap 289, 1994 Rev Ed) are also relevant to companies.16.1.2 It should also be noted that the statutory provisions governing companies are supplemented by the common law.SECTION 2 INCORPORATION AND ITS CONSEQUENCESObligation to Incorporate16.2.1 Under section 17(3) of the Act, a business organization that has more than 20 members must be incorporated as a company. However, this requirement does not apply to a partnership of persons carrying on a profession that is formed in pursuance of some other written law inSingapore(section 17(3) of the Act). Thus members of the legal profession who are governed by the Legal Profession Act (Cap 161, 1994 Rev Ed) may establish partnerships of more than 20 partners.Registration of a Company16.2.2 As a general rule, any person may, upon lodgment of the requisite documents and payment of the prescribed fee, register a company in Singapore. The mandatory documents to be lodged under section 19(1) of the Act are the memorandum and articles of association. The memorandum and articles of association are the constitutional documents of the company. Under section 22(1) of the Act, the memorandum of association must prescribe the name of the company, the amount of its share capital (if any) and whether the liability of the members of the company is limited or unlimited. The articles of association are the regulations of the company and contain provisions relating to how the company is to be governed. Where the memorandum and the articles are in conflict, the former will prevail.16.2.3 Once the memorandum of the company is registered, the Registrar will issue a notice of incorporation stating that the company is, from the date specified in the notice, incorporated and thetype of company it is, i.e. whether it is a limited or unlimited company and where applicable that it is a private company –see section 19(4) of the Act.Effects of Incorporation16.2.4 Section 19(5) of the Act sets out the general effect of incorporation which is that the company is a body corporate with all such powers as flow from such an entity. The company may sue and be sued in its own name, it has perpetual succession in that it can survive indefinitely until it is wound up, it may hold land, and the liability of its members is limited in the event the company is wound up. 16.2.5 Cases have established that as a body corporate a company has a distinct personality that is recognized by law. In other words, a company has an existence and identity separate from that of its members –see Salomon v A Salomon & Co Ltd [1897] AC 22; Lee v Lee’s Air Farming Ltd [1961] AC 12. The most important consequence of this is that the debts and obligations incurred by the company are its own and its members do not share the company’s liabilities. Creditors of the company may only look to the company for payment of debts owed to them by the company. If the company is insolvent and cannot pay its debts, the creditors will have to bear the loss however solvent the company’s individual members may be. All that the members of a company are obliged to do is to contribute the amount that remains unpaid on the shares that the members have subscribed. This obligation is owed to the company, not the creditors of the company. As such, if the shares were issued on a fully paid basis, or have already been fully paid, the members have no further liability to the company. Thus, when speaking of limited liability it is important to note that what is meant is not that the company’s liability is limited but that the members’liability to contribute to the company is limited to the share capital for which the members have agreed to subscribe.‘Lifting the Veil’of Incorporation16.2.6 While an incorporated company has a personality separate from that of its members, there are circumstances when the courts will ignore such separate personality and treat the company and its members (or officers) as one for limited purposes. Thus, for example, there may be circumstances when the courts will hold the members of a company liable for debts incurred by the company. When the courts do so, it is said that the veil of incorporation is lifted or pierced. Generally, the cases of veil lifting fall into two categories: by statute and at common law.Statutory Exceptions to the Separate Personality Doctrine16.2.7 It is open to Parliament to limit the effects of incorporation by a suitably worded statutory provision. One of the more important statutory limitations on the separate personality doctrine arises under sections 339(3) and 340(2) of the Act. The combined effect of those provisions is that, where debts are contracted without any reasonable or probable expectation that the company would be able to pay the debts, any officer of the company who was a party to the contracting of such debts is guilty of an offence and may, after conviction, be made personally liable by the court for the payment of the whole or any part of such debts.16.2.8 Another important exception is found in section 340(1) of the Act. Where it appears in the course of the winding up of a company that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the court may declare that any person who was knowingly a party to the carrying on of the business in such a manner shall be personally liable for all or any of the debts or liabilities of the company as the court may direct.16.2.9 A third important exception arises where dividends are paid even though there are no available profits out of which to pay such dividends –see section 403(2)(b) of the Act. Since dividends may only be paid where there are profits so as not to unduly prejudice creditors of the company, a director or manager of a company who wilfully pays or permits the payment of a dividend in the absence of profits will be liable to the creditors of the company for the amount of the debts due to them to the extent by which the dividends exceed the available profits.Common Law Exceptions to the Separate Personality Doctrine16.2.10 Persons incorporate companies for various reasons but, undoubtedly, one of the reasons is to insulate themselves from personal liability should the business fail. Accordingly, the mere fact that members or officers of a company utilize the corporate vehicle to shield themselves from personal liability is no -reason to disregard the company’s separate personality –see Adams v Cape Industries plc [1990] 1 Ch 433. However, the position is different where the members or officers of a company abuse the corporate form for improper means.16.2.11 Thus, if an individual already has existing legal obligations, but attempts to use the corporate vehicle to evade such obligations, the courts will ignore the company’s separate personality. For example, it has been held that a person who has agreed to sell a house cannot avoid his contractual obligations by transferring the house to a company. Both he and the company were ordered to specifically perform the contract even though the company was not a party to the contract –see Jones v Lipman [1962] 1 WLR 832.16.2.12 Similarly, if a company is used to perpetrate a fraudulent act, the courts will treat the company and those behind it as one and the same. Thus, if a company has been incorporated todefraud innocent investors, the court may hold the promoter of the company liable even though the promoter and company are separate persons –see Re Darby [1911] 1 KB 95.SECTION 3 CORPORATE GOVERNANCESeparation of Ownership and Management16.3.1 Section 157A of the Act states that the business of the company shall be managed by or under the direction of the directors. The directors may exercise all the powers of a company except any power that the Act or the memorandum and articles of the company require the company to exercise in general meeting. This reflects one of the features of company law, namely, that it can facilitate a separation of ownership and management. The members or shareholders who own the company need not necessarily be involved in its management as directors. While in some companies, particularly small ones, the members of the company may also be involved in its management - either as directors or in some other executive capacity - in many other companies, the members are not involved in management. Instead, such companies are managed by boards of directors in which many of the directors are not members of the company. Even when the directors are members of the company, their shareholdings in the company may be relatively small. It should also be noted that, in such companies, even this management by the board may often be notional as the majority of the members of the board may not be full-time directors but are non-executive directors. In such companies, the day-to-day management of the company will be in the hands of the senior executive officers of the company, some of whom may be board members. The role of boards in such companies is then to exercise a general oversight but not to be involved in executive matters.Statutory Duties16.3.2 Under common law, directors are regarded as fiduciaries and therefore owe fiduciary duties to their companies. At the same time, the Act also prescribes certain duties on directors which mirror their general duties under the common law. One important provision is section 157(1) of the Act which prescribes that a director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office. Section 157(2) of the Act goes on to state that an officer or agent of a company shall not make improper use of any information acquired by virtue of his position as an officer or agent of the company to gain, directly or indirectly, an advantage for himself or for any other person, or to cause detriment to the company.16.3.3 Section 157 of the Act does not purport to be an exhaustive statement of the law relating to the duties that directors owe to their companies. In this regard, section 157(4) provides that the section is in addition to and not in derogation, of any other rule of law relating to the duty or liability of directors or officers of a company. The effect of section 157 is to render those duties mandatory while the duties at common law are capable of exclusion by agreement between the company and its directors, assuming that the company has made such a decision independently of the interested directors. Under section 157(3) of the Act, a breach of sections 157(1) and 157(2) renders the officer or agent liable to the company for any profit made or any damage suffered by the company as a result of the breach. At the same time, a breach of these sections is an offence, and the officer or agent shall be liable upon conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding one year.Duty at Common Law to Act in the Best Interests of the Company16.3.4 In the exercise of their duties, directors must act bona fide in what they consider is in the best interests of the company. When the acts of directors are challenged, the courts do not substitute theirown judgment for that of the directors –see ECRC Land Pte Ltd v Wing On Ho Christopher [2004] 1 SLR 105; Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162. All that the courts are concerned about is whether the directors have acted honestly in what they (and not the courts) considered to be in the company’s best interests. Of course, if the decision is one that no reasonable board would have arrived at, this casts serious doubt on the bona fides of the directors.16.3.5 It should be noted though that, while the directors’overriding duty is to the company, section 159 of the Act provides that in exercising their powers, directors are entitled to have regard to the interests of the company’s employees generally, as well as the interests of its members. That directors may have regard to the interests of its members is also the position at common law since the members collectively do in a sense comprise the company notwithstanding the company’s separate personality –see Peters American Delicacy Co Ltd v Heath (1939) 61 CLR 457; Greenhalgh v Arderne Cinemas Ltd [1951] Ch 286. The entitlement to have regard to the interests of employees is also a sensible one since advancing the interests of employees will often be in the best interests of the company.16.3.6 There are also circumstances where directors must have regard to the interests of creditors. Generally speaking, creditors have no interest in the company’s assets. A creditor who wishes to enforce the debt owing to him from the company must bring a claim against the company. In the absence of an interest in the company’s assets, the directors of a company do not have to take the interests of creditors into account when making corporate decisions. However, when a company is unable to pay its debts, and is thereby effectively insolvent, the interests of its creditors must be taken into account. This is because creditors of an insolvent company are entitled to appoint a liquidator to get in the assets of the company to which the creditors have a prior claim before the members of thecompany. Accordingly, in such circumstances, directors must ensure that the affairs of the company are properly administered and that its property is not dissipated or exploited to the prejudice of the creditors –see Winkworth v Edward Baron Development Co Ltd [1987] 1 All ER 114.Duty at Common Law to Avoid Conflicts of Interest16.3.7 As a fiduciary, a duty of loyalty is imposed on a director vis-à-vis the company. As a result, a director is obliged not to place himself in a position where his duty to the company may conflict with his own interests –see Chew Kong Huat v Ricwil (Singapore) Pte Ltd [2000] 1 SLR 385;Kumagai-Zenecon Construction Pte Ltd v Low Hua Kin [2000] 2 SLR 501. One particular application of this duty is that a director is not permitted, without the fully informed consent of the company, to make a profit in connection with the director’s position. Thus, if the director comes across a business opportunity while discharging his role as a director, he cannot personally take advantage of such an opportunity unless the company has, with full knowledge of the facts, permitted him to do so. This permission may be given by the rest of the board (assuming the other board members giving approval do not stand to benefit personally) or by the members in general meeting.Duty at Common Law to Act for Proper Purposes16.3.8 The management of a company is generally vested in the board of directors and the board will often have other more specific powers such as the power to issue shares under section 161 of the Act, provided that the directors have obtained a specific or general mandate to do so. Such powers must be exercised for proper purposes. Even if directors have acted in good faith in what they believe is in the best interests of the company, they may have exercised certain powers in an improper manner. For example, it has been held that, where the power to issue shares was used to facilitate a takeover bidfor a company, that was not a proper exercise of such a power even though the directors felt that they were acting in the company’s best interests –see Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821.Effect of Breach of Fiduciary Duties16.3.9 If a director places his own interests above those of the company, the director will be liable for any loss caused to the company. If the director has profited from his position without the informed consent of the company, the director may have to account for the profits to the company. Where the director has contracted with the company, e.g. the director has sold an asset to the company, the company may be able to avoid the contract if the contract with the company was entered into in breach of the director’s fiduciary obligations to the company. Where a third party has entered into a contract with the company knowing that the directors of the company have acted improperly, the company may also be able to avoid the contract vis-à-vis the third party.SECTION 4 ENFORCEMENT OF CORPORATE RIGHTSThe ‘Proper Plaintiff’Rule16.4.1 As a company has a personality separate from that of its members, a member of the company cannot sue to enforce rights that belong to the company. This is known as the ‘proper plaintiff’rule, namely, that the company is the proper plaintiff in respect of any rights that it has –see Foss v Harbottle (1843) 2 Hare 461; Ng Heng Liat v Kiyue Co Ltd [2003] 4 SLR 218. Where a company has rights to be enforced, or is being sued, the usual body that is empowered to decide whether the company should either bring an action or defend the claim is the board of directors in whom the power of management is usually vested.Derivative Actions16.4.2 Notwithstanding the proper plaintiff rule, there may be occasions where a member of the company is entitled to bring an action on behalf of the company. Where a member does this, the action is referred to as a derivative action as the right is derived from the company. The member is not suing to enforce any rights that belong to him personally. In such actions, the company is included as a nominal defendant so that any decision of the court will bind the company as well.16.4.3 A member may bring a derivative action in respect of a wrong done to the company where the wrongdoer is the person who has control of the company and is in a position, or has used such control, to prevent a proper action from being brought against him. The wrong done may have arisen because the person in control of the company has appropriated the company’s assets for himself, or it may consist of an abuse of the powers vested in the wrongdoers, e.g. where the majority shareholders attempt to use their voting power in an illegitimate manner. In such a situation, the wrongdoers would use their control of the company to prevent a claim from being brought against themselves. Accordingly, a member will be allowed to institute a derivative action against the wrongdoers if the member is bringing the claim bona fide for the benefit of the company in circumstances where there is no other remedy available. If the action is being brought for an ulterior motive or in bad faith, the court is entitled to take that into account in determining if it is in the best interests of the company that the action should proceed.Statutory Derivative Action16.4.4 In addition to the common law derivative action discussed above, sections 216A and 216B of the Act make provision for a statutory derivative action. This action is potentially available to anymember of a company, the Minister of Finance (in certain cases), or any other person who in the discretion of the court is a proper person to make an application under the section. Such persons are potential complainants under sections 216A and 216B.16.4.5 Section 216A(2) of the Act provides that a complainant may apply to the court for leave to bring an action in the name and on behalf of the company or intervene in an action to which the company is a party for the purpose of prosecuting, defending or discontinuing the action on behalf of the company. The court will only grant leave if the court is satisfied under section 216A(3) of the Act that the complainant has given 14 days’notice to the directors of the company of the complainant’s intention to apply for leave; the complainant is acting in good faith; and it appears to be prima facie in the interests of the company that the action be brought, prosecuted, defended or discontinued. One advantage of the statutory derivative action is that if the court authorizes the bringing of the action, it can order the company to pay reasonable legal fees and disbursements incurred by the complainant in connection with the action. Under the common law derivative action, the risk of legal costs falls on the person bringing the action.16.4.6 Section 216B(1) states that an application under section 216A shall not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the company has been or may be approved by the members of the company However, evidence of approval by the members may be taken into account by the court in making an order under section 216A.SECTION 5 SHAREHOLDER REMEDIESThe Oppression Remedy16.5.1 In addition to the ability to bring a common law or statutory derivative action to protect the legitimate interests of the company, there are two other important remedies open to shareholders who feel that their interests are being prejudiced. The first arises under section 216 of the Act. Section 216(1) provides that any member or holder of a debenture of the company, or the Minister of Finance in certain cases, may apply to the court for an order that the affairs of the company are being conducted in a manner oppressive to one or more of the members or holders of debentures, or in disregard of their interests as members, shareholders or holders of debentures of the company. A similar application may be made if an act of the company has been done or is threatened which unfairly discriminates against or is otherwise prejudicial to one or more of the members or holders of debentures. Section 216 is commonly referred to as the ‘oppression remedy’.16.5.2 Where such an application is made, and the court after hearing the evidence is satisfied that the complaint is a valid one, the court may, with a view to bringing an end or remedying the matters complained of, make such order as it thinks fit. Such orders may include directing or prohibiting any act or canceling or varying any transaction or resolution; regulating the conduct of the affairs of the company in future; authorizing civil proceedings to be brought in the name of the company; providing for the purchase of the shares and debentures of the company by other members or holders of debentures or the company itself; or even winding up the company.16.5.3 Section 216 of the Act is intended to provide relief to members or holders of debentures where those in control of the company exhibit conduct that is equivalent to abuse or wrongdoing. The courts are not concerned whether a company is well managed. Business decisions are for the board to make and the courts will not generally second guess business decisions. Nor are the courts concerned that a member or some members are frequently outvoted. It is part and parcel of corporateadministration that decisions are taken by the majority. What the courts are concerned with is whether the affairs of the company are being run by those in control in such a way that there is a visible departure from the standards of fair dealing and a violation of the conditions of fair play which a shareholder is entitled to expect –see Re Kong Thai Sawmill (Miri) Sdn Bhd [1978] 2 MLJ 227. This may arise where key shareholders are excluded from management; where shareholders are deprived of information about the company; where the dominant members are clearly preferring their own interests; and where the patriarch of a family company behaves in an autocratic manner, just to give some common examples.Winding Up on the Just and Equitable Ground16.5.4 Under section 254(1)(i) of the Act, the court may wind up a company where it is just and equitable to do so. This is an important remedy for shareholders as it provides a means for disgruntled shareholders to use the winding up process to disengage from a company.16.5.5 The just and equitable ground for winding up has been used in a number of different circumstances. For example, where the main object of the company cannot be achieved or has been departed from, aggrieved members of the company may petition for the company to be wound up. Similarly, a company may be wound up if it engages in acts that are entirely outside of what can fairly be regarded as having been within the general contemplation and understanding of the members when they became members of the company. Another situation where the just and equitable ground has been used is where the company’s business has been carried on in a fraudulent manner. In addition, where the company is a quasi-partnership, in that the way the business is run resembles how a partnership is managed despite the use of the corporate form, and further, trust and confidenceamong the members has been irretrievably damaged, the court may order the winding up of the company since the members can no longer work with one another.SECTION 6 SHARES16.6.1 A share is the interest of a shareholder in the company measured by a sum of money, for the purpose of liability in the first place, and of interest in the second, but also consisting of a series of mutual covenants entered into by all the shareholders between themselves in accordance with section 39(1) of the Act –see Borland’s Trustee v Steel Brothers & Co Ltd [1901] 1 Ch 279.16.6.2 As mentioned earlier, the liability of a member/shareholder is to contribute to the company only that amount unpaid on the shares taken up by the member/shareholder. This is what is meant by limited liability. A shareholder is entitled to participate in the life of the company on the terms set out in the company’s constitutional documents, namely, the memorandum and articles of association, and to the extent allowed by the Act. The exact rights of the shareholder will depend on the terms of the memorandum and articles. Generally, all shareholders will be entitled to a pro-rata share of any dividends that are declared and paid. Where a company is wound up, again all shareholders are generally entitled to a pro-rata share of any assets remaining after the creditors of a company have been paid. Shareholders are also entitled to appoint and remove the directors of the company.16.6.3 Generally speaking, there are two broad classes of shares –ordinary shares and preference shares. Preference shares, as the name suggests, are shares that confer some preference on the holders of those shares. That preference may be in the form of dividends or return of capital. For example, the terms of a preferential share may provide that the holders of those shares are entitled to a particular rate of dividend before any dividends may be paid to holders of ordinary shares.Maintenance of Capital16.6.4 A company underSingaporelaw is required to maintain its capital in the sense that it cannot, as a general rule, return capital to its members. This general rule is intended to protect creditors. Creditors of a company are said to give credit to the company on the faith that the capital of the company will be applied only for the purposes of the business and therefore have a right to insist that such capital be kept and not returned to the shareholders –see Re Exchange Banking Co (1882) 21 ChD 519.16.6.5 This is not to say that members of a company cannot obtain any return on their investment. Indeed, if a company makes profits in a particular year, the company may pay dividends to its shareholders out of the profits made. The rules relating to capital maintenance also do not mean that members of the company must continue to contribute to the company when trading losses have occurred thereby depleting the company’s capital. A member’s liability to the company is limited only to the amount he has agreed to contribute to the company when the shares are issued to him. The rules relating to capital maintenance simply mean that, absent profits, a company must not take any steps that in effect return capital to its shareholders.16.6.6 Arising from this general principle, the following 5 propositions may be made:(i) a company may not purchase its own shares or those of its parent company –see section 76(1)(b) of the Act;(ii) a company may not lend money on the security of its own shares or those of its parent company - see section 76(1)(c) of the Act;。
新加坡设立公司章程范本(3篇)
第1篇第一章总则第一条公司名称公司名称为【公司全称】，以下简称“公司”。
第二条公司住所公司住所位于新加坡【具体地址】，如需变更，需依照法定程序办理。
第三条公司经营范围公司经营范围为【具体经营范围】，包括但不限于以下业务：【具体业务列表】第四条公司注册资本公司注册资本为新加坡元【具体金额】，分为【股份数】股，每股面值【每股面值】新加坡元。
第二章股东第五条股东资格公司股东应当符合新加坡法律、法规规定的资格条件。
第六条股东权利与义务1. 股东有权依照章程规定，出席股东大会，参与公司重大决策。
2. 股东有权查阅公司章程、股东名册、公司债券存根、股东大会会议记录、董事会会议决议、监事会会议决议、财务会计报告。
3. 股东有权按照出资比例分取红利。
4. 股东有权按照章程规定转让其股份。
5. 股东应当遵守公司章程，执行股东大会的决议。
6. 股东应当按照出资比例承担公司债务。
第七条股东大会1. 股东大会是公司的最高权力机构。
2. 股东大会的职权包括但不限于：a. 审议和批准公司的经营方针和投资计划；b. 选举和更换董事、监事；c. 审议批准公司的年度财务预算方案、决算方案；d. 审议批准公司的利润分配方案和弥补亏损方案；e. 对公司增加或者减少注册资本作出决议；f. 对公司合并、分立、解散、清算或者变更公司形式作出决议；g. 修改公司章程；h. 公司章程规定的其他职权。
第三章董事会第八条董事会组成公司设董事会，由【董事人数】名董事组成，其中独立董事不少于【独立董事人数】名。
第九条董事会职权1. 董事会对股东大会负责，执行股东大会的决议。
2. 董事会的职权包括但不限于：a. 召集股东大会，并向股东大会报告工作；b. 执行股东大会的决议；c. 制定公司的经营计划和投资方案；d. 制定公司的年度财务预算方案、决算方案；e. 制定公司的利润分配方案和弥补亏损方案；f. 制定公司的基本管理制度；g. 决定公司的经营方针和投资计划；h. 决定公司内部管理机构的设置；i. 决定聘任或者解聘公司经理及其报酬事项；j. 根据经理的提名，决定聘任或者解聘公司副经理、财务负责人及其报酬事项； k. 决定公司的分立、合并、解散或者变更公司形式；l. 决定公司内部管理机构的设置；m. 决定公司重大事项；n. 公司章程规定的其他职权。
新加坡公司章程中文译本
新加坡会计及公司管理局（ACRA）商业文件公司编号：公司以新名称成立确认证明书兹确认依照《公司法》的规定于2005年3月31日成立的“.”现已通过特别决议的方式决定将其名称变更为“凯德置地宁波控股有限公司”，该公司新名称自2005年4月28日起生效。
特此确认！2005年4月29日签字盖章。
高级助理登记官夫人（签字）新加坡会计及公司管理局（ACRA）（盖章）新加坡会计及公司管理局（ACRA）公司编号：2005042X9C公司成立确认证明书兹确认MILLVIEW私人有限公司已依照《公司法》第50章的规定于2005年3月31日成立；该公司是一家私人股份有限公司。
特此确认！2005年04年05日签字盖章。
助理登记官CHUASIEWYEN（签字）新加坡会计及公司管理局（ACRA）（盖章）《公司法》（第50章）私人股份有限公司MILLVIEW私人股份有限公司（于新加坡共和国注册）组织大纲1.“公司”名称：MILLVIEW私人股份有限公司2.“公司”注册办公地点将设在新加坡共和国。
3.本公司成立的目标在于从事下列部分或全部经营活动，也就是说，对于本条各款所列经营目标，除非该条款另有明确规定，否则，均不得参考或援引任何其他条款或其他各组条款的规定对其实施任何限制或约束；本条各款所列经营目标都能够作为一项独立的目标单独或与本条款或任何其他条款或其他各组条款所列全部或任何一项或多项其他目标共同实现；本章程所述任何部分或业务或目标被废止或被放弃均不得妨碍本公司从事任何其他经核准开展的业务；特此明确宣布，在本条名词解释中，本公司任何经营目标的定义不应参考任何其他目标或因两项或多项目标并列而受到限制，而且如果产生任何歧义，对本条定义的解释都不得夸大或限制本公司的权力：(1)开展一家控股公司的业务并为此目的，收购或以其他方式获取任何个人、企业或公司的部分或全部业务、商誉、资产和负债并从事相关经营活动；与任何个人、企业或公司合并或达成合伙、合资或利润分成协议并从中获取相关利益；发展成立、资助、设立、组建、形成、参与、组织、管理、监督和控制任何法人社团、公司、辛迪加、基金、托拉斯、企业或机构。
公司法新加坡法律第50章.pdf
由代表行事的公司 ............................................................................................................... 27
董事 .................................................................................................................................... 27
董事的委任、退任和撤換..................................................................................................... 29
替任董事 ............................................................................................................................. 30
股票 .................................................................................................................................... 12
催繳股款 ............................................................................................................................. 13
公司法新加坡法律第50章.pdf
董事的委任、退任和撤換..................................................................................................... 29
替任董事 ............................................................................................................................. 30
首席執行官 .......................................................................................................................... 28
罷免董事職務 ...................................................................................................................... 29
由代表行事的公司 ............................................................................................................... 27
董事 .................................................................................................................................... 27
新加坡公司章程中文译本
(3)从事电信和通讯服务的提供或处理、信息检索与交付、电子信息、电子商务、互联网和数据库服务的提供与处理业务。
(4)以任何方式、依照任何条款收购或以其他方式获取和持有股票、股份、债券、债权股票、年金债券和外汇、外币存款和商品，并随时对其中任何部分进行变更、行使和实施本公司在这些股票、股份、债券、外汇、外币存款或商品上的利益的各项附带权利，并以本公司可能认为适当的方式将并非本公司经营急需的闲置资金用于投资或以其他方式进行处置。
(26)与任何政府、主管当局、社团、公司或人员签订任何商务协定或其他协定，同时获取或得到出于任何目的的各种法规、法令、特许状、合同、行政命令、权利、特权、许可证、专营权和优惠，并且落实、执行和遵守上述法规、法令、特许状、合同、行政命令、权利、特权、许可证、专营权和优惠，签订、实施、启动、依法采取任何行动、合同、协议、谈判、法律程序和其他程序、和解、安排和方案并对其进行辩护，采取所有其他似乎在任何时间都对本公司的利益或保护有利或有益的行动和措施等。
(12)设立、保有和经营海运、空运、内陆水路运输和陆路运输企业（公共和私人企业）及其所有辅助服务机构。
(13)在符合法律施加的任何限制性规定的情况下，开展贸易、商业和工业所有分支机构的任何性质或类别的咨询师、顾问、研究人员和分析师业务。
(14)在符合法律施加的任何限制性规定的情况下，提供任何个人、企业或公司要求的任何部分或全部服务或便利设施或责成其他方提供该服务或设施。
(24)开展珠宝商、金匠、银匠、艺术商业务，进口、出口、购买、销售和经营珠宝、金银饰品、镀金和镀银、贵重物品、艺术品以及本公司认为合适的其他商品和货物的批发与零售，设立针对上述业务的培植、加工和制造商品的工厂。
新加坡企业法-中文版
新加坡公司法-中文版第十六章公司法第一节导言第二节公司成立及其后果第三节公司治理第四节公司权利的行使第五节股东的救济弟八节公司股份第七节公司债据与资产抵押第八节公司困境第九节公司解散第一节导言16.1.1在新加坡，与公司有关的主要法律是《公司法( Cap50, 1994 Rev Ed )》(以下称“公司法”)。
值得注意的是，一些特殊类型的公司，除了公司法之外，还要受到其他成文法的规制。
如保险公司和银行，还要分别受《保险法( Cap 142,1994 Rev Ed )和《银行法(Cap20, 1994 Rev Ed )》的规制。
有限责任合伙组织其实也是公司，受《有限责任合伙组织法(Cap289,1994 Rev Ed )》规制。
在诸如《证券与期货法 (Cap289, 1994 Rev Ed )》等其他成文法中，也有一些与公司有关的条款。
16.1.2应该注意的是，普通法也会对与公司有关的成文法规范进行补充。
第二节公司成立及其后果设立公司的义务16.2.1根据公司法第17( 3)条的规定，拥有20名以上成员的经营组织都必须设立为公司。
但该规定并不适用于那些遵照新加坡其他成文法设立的，由从事特定职业的个人组成的合伙组织(公司法第17 (3)条)。
法律职业的从业者，受《法律职业法(Cap161,1994 Rev Ed )》的规制，他们可以设立成员超过20人的合伙组织。
公司的登记16.2.2 一般来说，只要提交相应的文件，缴纳规定的费用，任何人都可以在新加坡通过登记设立公司。
设立公司时，必须提交的最重要的文件是公司章程和组织规章，公司法第19 (1)条对此作了强制性要求。
公司章程和组织规章就是公司的宪章。
根据公司法第22 (1)条的规定，公司章程必须载明公司名称、公司股本［如果有的话］，并表明公司成员承担的是有限责任还是无限责任。
公司组织规章是公司的规章制度，其中也有与公司治理有关的规定。
如果公司章程和组织规章有冲突，前者有优先效力。
新加坡公司证明公证书（中文翻译）
新加坡公司证明公证书（中文翻译）第一篇：新加坡公司证明公证书(中文翻译)公证书敬启者：本人，xxx为公证人，获得合法授权与任命，在新加坡共和国执业。
我特此证明并证实：此处随附的文件为日期为xx的xx投资控股有限私人贸易公司（新加坡）的公司设立证明书复印件，该文件是日期为xx 的xx投资控股有限私人贸易公司（新加坡）的公司设立证明书的真实、准确的复印件。
已经于本日期仔细查验和比照过日期为xx的xx投资控股有限私人贸易公司（新加坡）的公司设立证明书。
我宣誓以上证明属实，且为此签署本人姓名，并加盖官方印章，日期为我主xx年xx月x日。
特此证明新加坡公证人第二篇：公证书证明篇一：公证证明表一.公证证明表格证明湖北省武汉市楚信公证处：我单位__________ 拟（已）赴（国家）探亲（或定居、自费留学、进修），申请办理以下公证，现将有关情况证明如下：1、出生公证：___________,男、女，于_______年________月_______日在________省_______市（县）出生。
___________的生父是____________,（健在或已故），的生母是____________（健在或已故）。
2、未受刑事处分公证：____________（男或女，_______年________月_______日在出生，现住________省_______市区街路号）至________至________年__________月_________日，在中国居住期间未曾受过刑事处分。
（或现住国家地区于_______年________月日离境之日，在中国居住期间未曾受过刑事处分。
）（注：凡申办未受刑事处分公证书的，须加盖单位保卫部门、公安部门或当事人辖区派出所印章证明。
）3、学历、学位及成绩单（表）公证：____________（男或女，_______年________月_______日在出生）于__________年__________月________日入______________学校_____________系学习____________专业，学制（学习）________年，于_______年____月_______日毕业（肄业），并被授予_______________学位。
新加坡公司法
新加坡公司法第十六章公司法第一节导言第二节公司成立及其后果第三节公司治理第四节公司权利的行使第五节股东的救济第六节公司股份第七节公司债据与资产抵押第八节公司困境第九节公司解散第一节导言16.1.1 在新加坡，与公司有关的主要法律是《公司法(Cap50, 1994 Rev Ed)》(以下称“公司法”)。
值得注意的是，一些特殊类型的公司，除了公司法之外，还要受到其他成文法的规制。
如保险公司和银行，还要分别受《保险法(Cap142,1994 Rev Ed)和《银行法(Cap20, 1994 Rev Ed)》的规制。
有限责任合伙组织其实也是公司，受《有限责任合伙组织法(Cap289,1994 Rev Ed)》规制。
在诸如《证券与期货法(Cap289, 1994 Rev Ed)》等其他成文法中，也有一些与公司有关的条款。
16.1.2 应该注意的是，普通法也会对与公司有关的成文法规范进行补充。
第二节公司成立及其后果设立公司的义务16.2.1 根据公司法第17(3)条的规定，拥有20名以上成员的经营组织都必须设立为公司。
但该规定并不适用于那些遵照新加坡其他成文法设立的，由从事特定职业的个人组成的合伙组织(公司法第17(3)条)。
法律职业的从业者，受《法律职业法(Cap161,1994 RevEd)》的规制，他们可以设立成员超过20人的合伙组织。
公司的登记16.2.2 一般来说，只要提交相应的文件，缴纳规定的费用，任何人都可以在新加坡通过登记设立公司。
设立公司时，必须提交的最重要的文件是公司章程和组织规章，公司法第19(1)条对此作了强制性要求。
公司章程和组织规章就是公司的宪章。
根据公司法第22(1)条的规定，公司章程必须载明公司名称、公司股本[如果有的话]，并表明公司成员承担的是有限责任还是无限责任。
公司组织规章是公司的规章制度，其中也有与公司治理有关的规定。
如果公司章程和组织规章有冲突，前者有优先效力。
16.2.3 公司章程一经登记，登记官便签发设立通知，宣布公司成立并在通知中载明成立的日期。
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新加坡公司法-中文版第十六章公司法第一节导言第二节公司成立及其后果第三节公司治理第四节公司权利的行使第五节股东的救济第六节公司股份第七节公司债据与资产抵押第八节公司困境第九节公司解散第一节导言16.1.1 在新加坡，与公司有关的主要法律是《公司法（Cap50, 1994 Rev Ed）》(以下称“公司法”)。
值得注意的是，一些特殊类型的公司，除了公司法之外，还要受到其他成文法的规制。
如保险公司和银行，还要分别受《保险法（Cap142,1994 Rev Ed）和《银行法（Cap20, 1994 Rev Ed）》的规制。
有限责任合伙组织其实也是公司，受《有限责任合伙组织法（Cap289,1994 Rev Ed）》规制。
在诸如《证券与期货法（Cap289, 1994 Rev Ed）》等其他成文法中，也有一些与公司有关的条款。
16.1.2 应该注意的是，普通法也会对与公司有关的成文法规范进行补充。
第二节公司成立及其后果设立公司的义务16.2.1 根据公司法第17（3）条的规定，拥有20名以上成员的经营组织都必须设立为公司。
但该规定并不适用于那些遵照新加坡其他成文法设立的，由从事特定职业的个人组成的合伙组织（公司法第17（3）条）。
法律职业的从业者，受《法律职业法（Cap161,1994 Rev Ed）》的规制，他们可以设立成员超过20人的合伙组织。
公司的登记16.2.2 一般来说，只要提交相应的文件，缴纳规定的费用，任何人都可以在新加坡通过登记设立公司。
设立公司时，必须提交的最重要的文件是公司章程和组织规章，公司法第19（1）条对此作了强制性要求。
公司章程和组织规章就是公司的宪章。
根据公司法第22（1）条的规定，公司章程必须载明公司名称、公司股本[如果有的话]，并表明公司成员承担的是有限责任还是无限责任。
公司组织规章是公司的规章制度，其中也有与公司治理有关的规定。
如果公司章程和组织规章有冲突，前者有优先效力。
16.2.3 公司章程一经登记，登记官便签发设立通知，宣布公司成立并在通知中载明成立的日期。
该通知也会注明公司的类型，即成立的是有限责任公司还是无限责任公司，必要时还将表明成立的公司是私营公司[参见公司法第19（4）条]。
公司成立的效力16.2.4 公司法第19（5）条规定了公司成立的一般效力，即公司作为一个法人组织，拥有此类实体的全部权利能力。
公司可以自己的名义起诉或应诉，并且可以永久存续直至公司解散。
公司还可以拥有土地，在公司解散时，其成员承担的是有限责任。
16.2.5 公司作为法人组织，拥有法律承认的独立身份，这一原则已经得到了判例法的确认。
也就是说，公司具有独立于其成员之外的地位和身份[参见Salomon v. A Salomon & Co Ltd (1897) AC 22一案及Lee v. Lee’s Air Farming Ltd (1961) AC 12一案]。
上述原则最重要的意义在于，公司承担的债务及义务都是属于其自身的债务及义务，其成员并不承担公司的责任。
公司债权人只能指望公司自身来清偿其债务。
如果公司破产且无力清偿债务，不管公司的成员个人是否有清偿能力，债权人都只能自己承担损失。
公司成员的全部义务仅为缴清其已经认购但尚未缴纳的股本。
这一义务是对公司的义务，而非对公司债权人的义务。
因此，如果公司股份在发行时即已缴清，或在其后缴清，公司成员则不再对公司负有责任。
可见，在讲到有限责任时，必须注意的事，它并非指公司的责任是有限的，而是指其成员对公司的出资义务是有限的，即以他们同意认购的股份所代表的资本总额为限。
“揭开公司的面纱”16.2.6 尽管公司具有独立于其成员之外的身份，在某些情况下，法院为了特定的目的可能会无视公司的独立身份，而将公司及其成员（或管理者）视为同一个主体。
例如，在有些情况下，法院会责令公司的成员来承担公司的债务。
如果法院这样做，我们便可以说公司的面纱被揭开或刺穿。
一般来说，揭开公司面纱的案件有两类，分别由成文法和普通法规制。
独立身份原则在制定法上的例外16.2.7 国会有权制定适当的成文法来限制公司法人资格的效力范围。
对独立身份原则较为重要的限制之一规定在公司法第339（3）条和340（2）条中。
根据该两条的规定，当公司订约并承担债务时，如果不能合理地预期公司将具有偿债能力，该公司的任何管理者都将被视为行为违法，在违法行为得到法院认定后其个人便可能要对上述债务的全部或部分承担责任。
16.2.8 另一重要的例外出现在公司法第340 (1)条。
在公司解散过程中，对公司事务的处理如果是为了欺骗公司债权人或任何其他人的债权人，或者出于任何其他的欺诈目的，法院可以责令任何参与此类行为知情者，对公司的债务及责任承担其中的全部或者一部分。
16.2.9 第三个重要的例外出现在以下情形中：即公司在缺乏可资分红的利润时进行了分红[参见公司法第403（2）(b)条]。
公司分红只能在公司有足够的利润且不会不正当地损害公司债权人利益时才能进行。
如果公司的董事或经理在缺乏足够利润时，蓄意分配红利或许可分配红利，则应在分红超过可分配利润的范围之内对公司债权人承担责任。
身份独立原则在普通法上的例外16.2.10 人们设立公司往往出于多种目的，其中之一无疑是避免在经营失败时承担个人责任。
因此，并不能仅仅因为公司成员或管理者利用公司制度来避免个人责任便否定公司的独立身份[参见Adams v Cape Industries plc (1990) 1 Ch 433.一案]。
但如果公司成员或管理者为了不正当的目的而滥用公司形式，则又另当别论。
16.2.11 如果个人已经负有法律义务，却企图利用公司制度来逃避此义务，法院将无视公司的独立身份。
例如，法院曾判决认为，如果某人已经同意出售房屋，则不能通过将房屋转让给公司来逃避其合同义务。
个人和公司都被判令继续履行合同义务，尽管公司本身并非合同的当事人。
[参见Jones v Lipman (1962) 1 WLR 832一案]16.2.12 同样，如果公司被用来进行欺诈行为，法院则会将公司及隐身背后的人视为同一主体。
因此，如果公司的设立是为了欺骗不知情的投资者，法院将责令公司发起人承担责任，尽管发起人和公司具有各自独立的身份。
第三节公司治理公司所有与经营的分离16.3.1 公司法第157A条规定，公司经营由公司董事负责进行或者根据公司董事的指令进行。
除了那些根据公司法或者公司章程应由股东大会行使的权力外，公司董事可以行使全部其它的公司管理权。
这体现了公司法的一个重要特征，即公司法有助于公司所有与管理的分离。
公司成员或者股东尽管是公司的拥有者，但未必需要作为董事参与公司的管理。
在一些公司中，特别是规模较小的公司，公司成员也可能会参与公司管理—或作为公司的董事，或行使其它管理权—但在其它很多公司中，公司成员并不参与公司管理。
这些公司由董事会来经营和管理，而董事会里的很多董事并非公司成员。
即使一些董事是公司成员，他们拥有的公司股份也相对较少。
同样值得注意的是，在这些公司中，甚至董事会的管理也只是理论上的，因为董事会多数成员并非全职董事，而只是非执行董事。
公司的日常管理将由公司的高级执行官来进行，这些人中也有一些是董事会成员。
在这些公司中，董事会只是起到总体监管的作用，而不参与具体的管理工作。
成文法上的义务16.3.2 在普通法上，董事被视为受托人，对公司负有信托义务。
同样，公司法也为公司董事规定了与普通法相类似的义务。
公司法重要的规定之一是其中的第157（1）条，它规定，公司董事在任何时候都应忠实、勤勉地履行其职责。
公司法第157（2）条进一步规定，公司管理者或代理人，对基于其地位所获取的信息不得进行不正当的利用，以间接或直接的方式为自己或他人谋取利益，或者损害公司的利益。
16.3.3 公司法第157条并未穷尽公司董事对公司所负的全部义务。
第157（4）条明确规定，公司法第157条只是补充而非减损公司董事和管理者所负的法律义务或责任。
第157条使这些义务具有了强制性，而在普通法上，这些义务可由公司和董事通过约定予以排除，只要公司在做出此类约定时未受到有利害关系的董事的影响。
根据公司法第157（3）条的规定，违反公司法第157(1)和157（2）条的公司管理者或代理人应对公司由此受到的损失承担责任。
如果违法行为得到认定，公司管理者或代理人同时还将被处于5000新元以下的罚款或者一年以内的监禁。
普通法上“行为应使公司利益最大化”的义务16.3.4 在履行职责时，公司董事所进行的行为，都应是他们善意地认为能促使公司利益最大化的行为。
当董事的行为受到质疑时，法官并不以自己的判断取代董事的判断[参见ECRC Land Pte Ltd v Wing On Ho Christopher (2004) 1 SLR 105一案及Vita HealthLaboratories Pte Ltd v Pang Seng Meng (2004) 4 SLR 162一案]。
法院仅考虑，公司的董事（而不是法院）是否诚心认为其行为是为了公司利益的最大化。
当然，如果法院认为任何合理的董事会都不会采取类似的行动，则公司董事的善意将受到严重的质疑。
16.3.5 值得指出的是，尽管董事最重要的义务是对公司的义务，公司法第159条还规定，在行使职权时，董事也可以一般地考虑公司雇员以及公司成员的利益。
普通法也允许董事适当考虑公司成员的利益。
因为，尽管公司具有独立的身份，在某种意义上，毕竟是公司成员共同组成了一个公司[参见Peters American Delicacy Co Ltd v Health (1939) 61 CLR 457一案及Greenhalgh v Arderne Cinemas Ltd (1951) Ch 286一案]。
公司董事适当考虑雇员的利益也是可以理解的，因为促进雇员的利益往往也会使公司利益最大化。
16.3.6 在某些情况下，公司董事必须考虑公司债权人的利益。
一般来说，公司债权人对公司资产并不享有任何权利。
债权人要想实现债权，则必须对公司进行起诉。
由于债权人对公司资产并不享有权利，公司董事在就公司事务做出决定时并不需要考虑债权人的利益。
但如果公司无力清偿债务因而事实上已经破产时，债权人的利益则必须得到考虑。
这是因为破产公司的债权人有权任命清算人，以管理公司的资产，并且与公司成员相比，债权人对公司资产享有优先权利。
因此，在这种情况下，公司董事必须保证公司事务得到妥善处理，并保证公司资产不会被侵害或剥夺，以免损害债权人的利益[参见Winkworth v Edward Baron Development Co Ltd (1987) 1 All ER 114一案]。