Research On The Legal System Of The Company Promoter

Company, is the greatest and the most efficient economic organization form inthe history of mankind. It crosses the blood relationship and geopolitics whilecondensing countless individual energy. The goal of this paper is those who give birthto the company--the company promoters. By forming the company, the companypromoters’ individual entrepreneurial motivations turn into commercial, public socialexistence form, which greatly promote the development of social progress. However,Capitals manipulation shadows behind all of these operations. Greed is the essence ofcapital, which promotes social progress and is the foundation of all economicactivities, but under certain conditions it will also be the huge destructive power force.Therefore, under the continuous impact of the concept of social responsibility, profitis no longer the highest goal of business activities protected by the commercial law,the law must try to prevent the profit behavior acted by the commercial subject whichmay do harm to the social justice.The company promoters’ behavior is the cornerstone of the birth of the company,and is the foundation of the successful company establishment and the perfectpersonality. Company promoter’s legal problems should be paid enough attention to,even if it is not most essential theoretical research topic of the company law. The lawmust choose between the full protection of promoters’ entrepreneurial behavior andtheir self-interest behavior. However, in China or even in the world’s company lawfield, many legal problems of the company promoters are still in the chaotic state, anda clear, precise company promoter’s theoretical system has not been constructed. Forexample, what is the connotation of company promoters? Can restricted capacity andincapacitated person become the company promoter of a company? What is the civilsubject status of a company in incorporation? Do the promoters’ contracts have legal effect? What is the root for the company promoter to undertake the fiduciary duty?What is the judgment standard and imputation principle when the company promoterviolates the fiduciary duty? How to allocate the legal responsibility among the relatedsubjects?Through this thesis, the author analyses some basic questions of the companypromoter with obligations as the center. This paper is structured as follows:Introduction--Described the significance of the company promoter study, thetheoretical root for the company promoter to undertake more civil obligations, thelegal value goal which should be seeked when we try to regulate the companypromoter’s conducts and the research method and theoretical framework. The authorbelieves that to regulate the company promoters conducts is the natural requirement toharmonize the relationship between the natural attribute of the company promoter andthe social attribute company promoters’ behavior; is the natural requirement toharmonize the legal value goals between pursuing the economic efficiency andrealizing the social fairness; and the natural requirement to fix China’s presentsituation, and to adapt the economic development demands. The reason for thepromoter to undertake heavier civil obligations and civil liabilities is not based on"rights and obligations phase consistency principle", but for the need to reinforcechecks and balances of the "power"(instead of "right"), for economic efficiencyconsideration, for the future "control income" equity. Based on the special status ofthe company promoter, the company promoter’s legal regulation shall uphold thesafety first principle, and shall be based on obligation standard not the right standard.Chapter One--Study on the company promoter’s legal concepts. First, thischapter analyzes the company promoter’s definition among the continental lawsystem, the Anglo-American law system and China’s law circle. Second, the authorthen puts forward her views on the company promoter’s denotation. Third, the authoranalyses in-depth the company promoter’s qualification, especially, will a non fullcapacity person qualifies as the company promoter.Chapter Two--Study on the company promoter’s legal relationship. From multiple perspectives, this chapter firstly discusses the civil subject status of theestablishing company. It proposes that although civil behavior is still limited onestablishing companies, they do have the qualification of independent civil subjects.About the legal relationship between the company promoter and the establishingcompany, the author believe the former should be the latter’s organ. Then, the chapterdiscusses the legal relationship among each company promoters, the legal relationshipbetween the company promoter and the other investors and the legal relationshipbetween the company promoter and the creditor.Chapter Three--The company promoter’s capital obligations and theresponsibility. This chapter first discusses the legal concept of the companypromoter’s obligations of capital contribution. Then focuses on the companypromoter’s obligations of capital adequacy and believes that the obligations of capitaladequacy is the second “obligation” which is derived from the company promoter’soriginal obligations of capital contribution, and is the second guarantee measure toensure the company’s capital sufficiency by law. The essence of it is "obligation"instead of" responsibility". When the company promoter is in violation of obligationsof capital contribution, he should undertake the responsibility of breach of contract,and if the company is set up successfully, he should also undertake the responsibilityof breach of contract to the company.Chapter Four--The company promoter’s fiduciary duty and the responsibility.This chapter begins with a comparative analysis of the fiduciary duty norm, thehistorical development and the theoretical foundation between the continental lawsystem and the Anglo-American law system. Then, the author analyses the root offiduciary duty and fiduciary duty types among company promoters, companypromoter companies and other investors. Finally, the author analyses the legalpenalties when the company promoter breaches its fiduciary duties. The author thinksin most occasions, breaching its fiduciary duties, the company promoter faces tortliability and contract breaching liability, company promoters should be adopted theprinciple of fault liability. Moreover, from both subjective and objective aspects, the author analyses the judgment standards for breaching fiduciary duty, and the promotermay counterplead for himself based on the business judgment rule.Chapter Five–The company promoters’ contract duty and the responsibility.This chapter first analysis the first company contract concept, characteristics andtypes, and the comparative law study of the first company. Then, the author studiesthe first company contract obligation under success and failure scenarios, the legalliability shall be based on entities and purposes of the company promoter contract aswell as the company promoter’s subjective status.Chapter Six--Suggestions on perfecting the legal system of the companypromoter. In China, there are some defects existing in the legal system of the companypromoter such as the legislative technology is careless, promoter civil obligationsspecies loss, promoter civil liability is too light. So based on the first five chapter, thesixth chapter puts forward some suggestions on perfecting our country’s legal systemof company promoter, which includes both some modification proposals about theexisting laws and some proposals to fill in the blanks due to the lack of some relatedelegal system of the company promoter; Both some generality proposals to set uprelevant legal system framework and some detail proposals about several legal terms;Still there are some suggestions to improve the legislation technology.