Research Of Civil Liability Of The Promoter

The promoters have an important status in the process of establishing a company.In specific practice, the situation is often more complex, which also will cause serious impact on the commercial company. Therefore, in order to perfect company’s personality, protect the interests of the company and protect the claims of the third party, the strict provisions of the civil liabilities of the corporation promoter and clearing the civil liability of the sponsor have very important practical significance.The first part of this paper:an overview of related theories of promoters. It discusses respective characteristics of the formal concept and the essence concept on the promoter through comparative analysis of the continental law system and Anglo American law system countries and regions which make supplement to the definition of China’s "the third judicial interpretation of company law". It hold the view that we can reference the fiction legal person of Japanese system, i.e. if there is evidence participating in the establishing process but not recorded in the articles of association of the company, he or she shall be determined as promoters.The second part of this paper:the legal nature of the promoter’s act and the initiator’s legal status. There are mainly three kinds of views on the legal nature of the act of setting up the company:individual act, contract act and common act. The author views that the common act describes the essence of company establishment and it is the common meaning representation of promoters. This article researches legal status of the promoters through analysis relationships between promoters, the establishing company and promoters, and the established company and promoters.The third part of this paper:the civil liability of promoters. When the company is set up successfully, the civil liability mainly includes five aspects:breach of investment responsibility, capital adequacy responsibility, the liability for damages, contract and tort liability to the third party, liability for failing open information to subscribers. When the company establishment is fail, the civil liability of promoters includes joint and several liabilities between the promoters and joint and several liability of establishment act.The fourth part of this paper:The development and perfection of promoter’s civil liability of our country. By analyzing the present situation of legislation in our country, the "company law" and "the third judicial interpretation of legislation", and combined with the relevant experience of developed countries, adopting the classification analysis method, I proposed suggestions to perfect the system of promoter’s civil liability of our country.