Studies On Establishing Corporation

The issue concerning establishing corporation is a hot point in the field of Corporation Law. The emergence of corporation, especially of the stock company, is not happened in an action. In a general way, the founder's behavior will influence the unborn corporation directly or indirectly. However, there are various insolvable problems concerning the legal position of founder have came forth in theory and in practice. Therefore, it is necessary to discuss these issues, including the legal position of establishing corporation, the liability mechanism in the process of establishment. How to regulate the establishing process, how to set up appropriate regulating mechanism, will be the key points to build healthy, orderly and effective market economy system. The Chinese corporation law has to be modified in these regards. The author of this paper tries to solving the problems regarding the establishing corporation by comparing the laws and theories of various countries in the world. The points of view in this paper are as follows: 1. The main body status of establishing corporation should be admitted in Chinese Corporation Law; 2. The establishing corporation is a transitional non-corporative association, being from the time that the founder made a corporation constitution and subscribed for at least one shares, to the time of the registration, with the aim to set up a nonprofit corporation, have settled departments, possesses certain financial foundation and capacity of will; 3. The relation between the establishing corporation and the founder has the character of duality, that is to say, the founder, to see as a whole, is a department of establishing corporation, at the same time, there is contractual relation among each founder. The liability system is based on this precondition; 4.Comparing the establishing corporation and the established corporation, there are continuity and differences between them. Therefore, the liability ascription is based on the given situation; 5.We may use the system of "balance responsibility"in foreign countries for reference, and admit the case that to establish corporation is "must to do"deed. 6. Regarding the issue of how to make certain the liability, we may use the principle of "contract novation"in Anglo-American countries for reference. The corporation can be chosen to bear the responsibility of the establishment in certain instances. These suggestions will better improve the healthy development of Chinese corporation and guarantee the safe transaction in Chinese market.