Study On Legal Issues Of Promoters Of Corporation

The creation of any corporation relies on affirmative action of incorporation by promoters. A study on issues relating to promoters, therefore, is essentially an integral part of the whole studying project. There are fatal flaws in provisions in terms of regulating over promoters'activities in our current legal practicing which invokes a calling for further studying but is failed by fruitless scholarship. This thesis boldly delves into these plaguing issues for a hopeful contribution to the establishment and perfection of legal doctrines in this area, with a combination and integration of experiences of legal profession, enterprise of legal scholarship, and legislative models in foreign countries. 　This thesis consists of introductory remarks, ending remarks and main body. The last part is divided into three sections. 　In the first part, this thesis introduces different doctrines and dealings in terms of starting up an enterprise with a context of comparisons of formalism, substantial theory and theory of a combination of the former two ones. The author's personal cementations over these doctrines is reached in a form of the view that the adoption of combination theory prevailing in law profession for defining the scope of promoter hampers the balance of conflicting interests and benefits of interested parties. The author also suggests basing the criterion of determining promoters primarily on the theory of formalism and with a borrowing of elements of spirits of substantial theory as supplements. On the issue of limitation on the number of promoter imposed by current law, the author advocates a repealing of such provisions. A reflection is made over doctrines that denying the capacity of incapacities and of non-profit corporation as promoters which are sponsored by most of scholars, with a positive argued answer defying prior ones to this determined question. 　Part Two is dedicated to regulations over the legal status of promoters and the utilizations and uses of rights of promoters. With an integration of doctrines and comprehensive analysis of controversies and divergences, this thesis put forward up an approach as to viewing the status of promoter from two directions: the internal relations within company and external relations with outsides. Promoter is the executive function and representative agency of formative corporations and meanwhile the correspondent party of jural relations in which the corporations engage. When status of promoter is fixed the rights of promoter are clear. A comparative analysis of issues of regulation over promoter are carried out with an effort on the scope of rights over executive affairs in incorporation, a point is reached by laying out the exact items of duty of fidelity and duty of due care in conducting incorporation affairs. In the ending part, an analysis and survey on foreign regulations over promoter's right to corporation is carried on as a suggestive reference for further perfection. 　Part three is for a discussion on personal civil liability assumed by promoters. From the angles of promoters'personal liability to the corporation and to the third party, an analysis is elaborated over relevant legal rules and institutions abroad. Meanwhile, a note on the demerits of current relevant rules of law is given in a form of criticism.