The Legal Nature And Commitment Of Liabilities Of The Pre-incorporation Company

As a legal term, the appearance of "pre-incorporation company" in China mainland hasn't been a long time. However, that legal term has already formed a perfect system in Civil Law countries, in which Germany is the typical sample. Recently, certain scholars have some analysis and study on the pre-incorporation company. As a whole, for the study concerning the specific period before companies acquiring legal personality, we still lack sufficient attention and focus. The revised Company Law hasn't prescribed explicitly or in detail too. Obviously, a few provisions concerning incorporators' liability, together with the sole model in legal practice can't comply with the complexity of incorporation process. The dissertation, applying the methods of comparative analysis and integration of practice with theory, explores the legal systems of the pre-incorporation company in an exhaustive and in-depth manner. Apart from an introduction and a conclusion, it has the four following parts:The first part introduces the process of establishing a company and analyses its characters, which is the concept source of the pre-incorporation company. Afterwards, this part expounds the significance, delimitation and characteristic of the special community. A pre-incorporation company is a structural body without legal personality. It starts with drafting the articles of association and ends up with the incorporation registration. It is a transitional outcome of the incorporation with explicit timeliness and definite objectiveness. If there is not this concept, the promoter has to make contracts under their own name and the property achieved for the company will be only registered in the promoter's name, and then returned to company when it establishes. That is not only unsuitable, but also making the process more troublesome.The second part elaborates on the legal nature of the pre-incorporation company, which is an emphasis of this paper. There are several theories about this problem in continental law system and Anglo-American law system. By comparing the two legal systems, we can affirm that the pre-incorporation company has limited right which is connected with the activity compass of establishment. Because the pre-incorporation company has't legal personality and can't express ideas by itself like nature person, it needs to complete the task of establishing a company by a people organization which can be named institution.The third part focuses on the content and nature concerned in the pre-incorporation activities. Promoter has to take action continuously to set up a company with complete legal personality. The quality and effect of these actions are immensely important in researching and recognizing the property of the pre-incorporation company. We can consider that the study of action is like a bridge.The pre-incorporation activities can be divided into the following classes: inherent behavior, indispensable transaction and dispensable transaction. In the pre-incorporation period, such activities carried out nor by promoter or stockholder, director and supervisor can be defined as pre-incorporation company's action if they belong to establishing action and don't beyond company's right.The fourth part gives a detailed analysis of the civil liabilities the pre-incorporation company bears, which is another important part of the paper. The result of a company establishes or not will influence the responsibility system, so this problem is elaborated in two parts: the company is incorporated and fails to be incorporated.The liability of the inherent behavior and indispensable transaction is shouldered by company established. And company has the option of undertaking the liability of the dispensable transaction or not. When the company is not formed, the promoter will hold responsibility of the inherent behavior and indispensable transaction. And the liability of the dispensable transaction will be responded by the contract parties themselves.