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Research On The Non-cash Contribution Institution Of The Stock Company

Posted on:2012-09-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:X W JinFull Text:PDF
GTID:1116330338965552Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The Amendments of 2005 to the Company Law of PRC provides for the forms of capital contribution, including some non-currency property except currency, such as physical assets, intellectual property, land use rights which can be valued on the basis of currecy and can be transferred. The scope of the subject matter of non-currency properties is limited to property or rights by the Company Law, which are specific and have economic value and can be legally transferred, and the contributors are limited to all the shareholders of a limited liability company and the promoter shareholders of incorporated company, and the physical assets as capital contribution shall not exceed 70% of the total, in which the labor, credit, natural name, goodwill, franchises or the secured property is expressly prohibited. There are some rules in the "share registration and management approach" which is implemented in March 1, 2009, that investors can hold the shares of a limited liability company or incorporated company that are established in China as an investment property to other limited liability company or incorporated company, and shareholders'contribution by non-currency assets should transfer the property in 6 months. It can be seen that the provisions relating to non-currency properties of the Company Law exclude the most non-promoter shareholders thereof. In fact, in addition to contribution in currency, the company's capital should also include any other tangible or intangible property rights. Because the company capital is further socialized in the actual economic life, there have been situations that useof labor, credit, goodwill, franchises or the secured property as the investment, which show their possibility and the value of investment; on the other hand, from the company point of view, a variety of companies have different needs for capital because of the type, nature and goals,. In addition, from the point of the full use of social resources, there are so many diverse forms of property rights today that we should also expand the form of non-currency properties. The company funded system of developed market economies which contains detailed provisions about the non-currency properties may gives us a precedent. In view of the contradiction between the provisions in our current company law and the reality.This paper argues that the Company Law should not be limit the specific type of property investment in a way to enumerate, and the range of non-currency properties should be expanded, which based on the analysis of Non-currency properties from jurisprudence and economic theory and through carding the non-currency properties legal system of extraterritorial civil law and common law countries. In order to solve these problems, the paper suggests that we should reconstruct the non-currency properties legal system suitable for china, in which the responsibility of property assessment is further strengthened and the warranty responsibility system of Verification people in Company contribution and the replacement property settlement system is established.The first Section elaborates on the meaning of capital, the legal nature of non-currency properties and its theoretical basis. Typically, the company's capital assets are composed by the monetary and non-currency forms of properties. According to the existing Company Law, the forms of non-currency properties are:physical material, intellectual properties, land-use rights and properties which can be valued in monetary terms and can be legally transferred. Capital acts as the founding and operating foundation of a company, and also plays an important role in a company's external credit guarantees. Non-currency properties bases on contract theory, transaction cost theory. According to the company contract theory,"company come from the compromise between the Chapteries, and reflects the autonomy of the will. Company law, in general, belongs to private law, so the core value of company law should be selective or arbitrary norms. "The Nature of a company builds on a combination of contracts, and it is a organization where people can trade property rights by contract. The emergence of company does not remove the contract between people completely, but it does reduce the number of them. A series of contracts is replaced by one contract which is called articles of association.The second Section discusses the basic structure of non-currency properties, including the investor and physical matters. Non-currency properties has dual attributes of quantity and quality, so the essential characteristics of its general and should be reflected in these two ways. In quantitative terms, it is involved in an objective assessment of property investment. In terms of quality, it is involved that what kind of things are qualified for contribution in a company.The third Section discusses the current non-currency properties and the balance of interests between shareholders and creditors protection. In the current system of Non-currency properties of both common law characterized by America and civil law characterized by Japan, the current attitude of non-currency properties legislation is to rarely explicitly limit the specific form of non-currency properties, but considering that now it is easy to make the other shareholders and the interests of creditors of the company suffer losses, we need, in the system level, to strengthen procedures and responsibilities of property value assessment system and to emphasize the transparency of the contribution in order to solve the problems of companies' need of various forms of non-currency properties, and the inequality among shareholders in the modern economic environment.The fourth Section is about the foreign legislation system of non-currency properties and its reference we can drawn lessons from, which Introduces the current Non-currency properties system of three civil law countries, Germany, France, Japan, and two common law countries, the United Kingdom, France. From the practice of most countries, the scope of those that can be used as investment property is very broad, including both tangible property which is consist of movable and immovable property, and intangible property which include patents, copyright, proprietary technology, the benefits of movable and immovable rights, mining rights, shares with no restriction on alienation and company's debt. There are strict control measures as pre-funding procedures and independent external assessment system, as well as control of the defects after the funding mechanism for accountability in the foreign legislative system of Non-currency propertiesThe fifth Section is a review on the limits of non-currency properties in China's company law. The relevant provisions of company law appear to be too vague and general, are easy to be misinterpreted and can hardly meet the need of complex and diverse reality of economy. It also demonstrates the need for specific types of non-currency properties. From the trend of the evolution of company law, the company law which was amended in 2005, expand forms of shareholders' investment, and strengthen the company's capital strength. One of the most striking changes is that the term "intellectual property" replaced the former terms of industrial property right and non-patent technology, and that listed in the original Act limited way shift to open additional ways. From the function of capital, it has warning and security role. There is no direct relationship between the payoff of company's debt and the form of the non-currency properties. On the transferring of property rights, in addition to use right transfer, there is a variety of ways of the transfer of property rights, such as licensing, leasing, special licensing and so on. Under certain circumstances whether the company can repay debt has nothing to do with the form of Non-currency properties. If we can improve the system of creditor protection, we are able to resolve debt problems caused by realization of property.The six Section is about the legislative improvement of the system of non-currency properties, which is the reconstruction of the system of non-currency properties. It is the focus of this article. First of all, we analyses, one by one, the meaning, content, social effects and economic value of investment, operability and precautions of credit, labor, goodwill, the overall property and collateral property and finally determine the legal status of credit, labor, goodwill, the overall property and collateral property. Establish the public system of non-currency properties, set out the content of non-currency properties in detail in the articles of association and develop a special network system of company registration to access the company's registration information at relative low cost; in the assessment of non-currency properties pricing procedure, we need to establish a system in which the company registration authority send inspectors to Chaptericipate the pricing procedure. If the company self-assessment and the assessment of inspectors'are inconsistent, place inspectors' assessment as the basis, if the investor of the company don't agree with it, you can seek help through administrative means. Through administrative reconsideration, administrative litigation, the inspectors have not changed the assessment, and investors still don't accept, the registration shall not register.At present the registration authorities are the State and local industrial and commercial administration Chapterments, and the hope that the authorities in the near future establish non-currency properties assessment system will come true soon. This article proposes legislation may take a roundabout way. First establish "personal guarantee responsibility verification system", require the investment checker to ensure the truth and fairness of the assessment to the registration authority, the other shareholders and creditors of the company. If registration authority, the other shareholders and creditors of the company suffer losses because of false verification of capital, verificator and evaluator shall assume joint guarantee responsibilities together. Verificator carries no fault civil liability. In addition, establish alternative settlement of property due to its inherent characteristics, although the nominal ownership has been transferred to the company, but in fact it is still under control of the investor. So when companies need to use their assets to repay debt to the creditor of the company, it is bound to encounter problems of the reeducation of transferable assets of the company. To this end, we need to establish a alternative settlement system that we can use property that can be transferred and replaced to fulfill the property settlement obligations. The specific approach is to present the name and value of the property and the name value and alternative ways to transfer of the alternative property in the articles of association and in company registration and publicity.
Keywords/Search Tags:Capital, Non-currency property contribution, balance of interests, specific type of property
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