Research On Commitment Of Liability Incurred By Pre-incorporation Contract

A Pre-incorporation contract is signed before the establishment of corporation. At this stage, the company in incorporation doesn't exist as legal person. And It isn't equity that ask initiator commit all the liabilities incurred by pre-corporation contract. Therefore, such kinds of contract disputes are quite distinctive from the civil contract .Theories and legislation give a full attention to the problem in many countries and areas. The leak in Company Law in our country brings very big puzzle to the judicial practice。Therefore, there is an important theoretical and practical significance in researching on this subject.A Pre-incorporation contract that the initiator signs contract with the third party on behalf of formed corporation is signed before the establishment of corporation. It has three characteristics: the first, It is signed before the establishment; the second, It is signed on behalf of formed corporation; the end, the counterpart should exclude the initiator. The existence of company incorporating action lay the foundation for the Pre-incorporation contract, and, in order to complete establishment of company, the initiator needs to sign each type of contract with the third party. This results in the universals existence of the contract before the company is established . Then the bodies of pre-incorporation contracts are analyzed, as well as the forms of pre-incorporation contract so as to study pointedly the commitment of liabilities incurred by the pre-incorporation contract.Investigation of the legislation commitment of liabilities incurred by pre-incorporation, expecting to administration offer reference to relevant legislation and of justice of our country. In the failure of companies to establish circumstances, legislate of various countries to request the initiator to commit the liabilities incurred by the pre-incorporation contract for the considerations of transaction security. After the company formed, the question of commitment of liabilities incurred by pre-incorporation contract is very complex, so, legislate of various countries are also different to this question's stipulation.Researching commitment of liabilities incurred by pre-incorporation contract, we can find that this question has not obtained the very good solution in the restation and judicial practice. It has following several problems at least: The first, the shoulder of initiator is overweight in pre-incorporation contract, which will dispel the enthusiasm of initiator to incorporate company; the second, the modern commercial competition is quite intense. It is very important for the company to seize the opportunities of business. So it isn't advisable to prevent corporation from trading before the establishment of corporation. The third, the contract which is within the confine of company incorporating action, the company doesn't have the right reject the contract. But, the contract which is beyond the confine of company incorporating action, the company doesn't have the right accept the contract that is favorable for incorporation. The end, in our country's judicial practice, the company has the independent property, but it doesn't commit liabilities incurred by pre-incorporation contract after the failure of incorporating company. So It isn't equity for initiator, and will increase the risk of initiator in company incorporating.The solution to the commitment of liabilities incurred pre-incorporation contract has a relationship with the prospency of commerce and economic prosperity, and the safety of trading transaction security. So we should perfect the system of the commitment of liabilities incurred pre-incorporation contract. The first, we should treat transaction security as main value when there is a conflict between the two kinds of value; The end, we need to perfect the system in China by learning from the overseas legislative experiences.In the success of company to incorporate circumstances:The pre-incorporation contract, which is signed by the initiator in the name of himself, we should be valid between the third party and him, but not absolutely restricted to the corporation. But the formed corporation can acquire and commit the liability incurred by pre-corporation contract through signing a new contract with the third party, so that the promoter can release the liability of the former contract.The pre-incorporation contract, which is signed by the initiator in the name of company in incorporation, we should establish a decision system of board meeting to scrutinize pre-incorporation contract.The pre-incorporation contract, which is signed by initiator in the name of formed company, the formed corporation can acquire and commit the liability of the former contract through signing a contract of liability transition in a certain period, according to its own benefit.In the cases of the following if the company fails to be formed:The pre-incorporation contract, which is signed by the initiator in the name of himself, The third party could ask company in incorporation commit the liabilities, and, if the property of company in incorporation is insufficient the discharge, initiator will commit the liabilities. Or the third party could only ask initiator commit the liabilities.The pre-incorporation contract, which is signed by the initiator in the name of company in incorporation, The third party could ask company in incorporation commit the liabilities, and, if the property of company in incorporation is insufficient the discharge, initiator will commit the liabilities.The pre-incorporation contract, which is signed by initiator in the name of formed company, if the third party doesn't know the fact that company is incorporating, he could ask company in incorporation commit the liabilities, and, if the property of company in incorporation is insufficient for the discharge, initiator will commit the liabilities; If the third party know the fact that company is incorporating, he could only ask initiator commit the liabilities.