Research On Pre-incorporation Contracts

Although the provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the People's Republic of China(III)(hereinafter referred to as the judicial interpretation of the company law(III))have made special provisions on the adjustment of the pre-incorporation contract,which have established an adjustment model that takes the name of the contract as the principle and the essence o f the contract as the exception.However,there are still disputes and puzzles in the application of relevant system design in theoretical support and judicial practice.For example,the time range embodied in the concept of corporation to be formed is one of the basic conditions for determining the pre-incorporation contract.However,in view of this concept,the relevant theoretical research is still controversial,and there is no uniform standard for the application of judicial decisions;Although the judicial interpretation of the company law(III)stipulates the standards for the determination of promoters,scholars have different opinions on the evaluation of this standard and the judicial judgment has different legal effects on the understanding and application of this standard;In addition,the company law lacks clear legal provisions on whether to apply the pursuit of liability when the contract name and the subject of liability are inconsistent.In this paper,the discussion on the related issues of the corporation to be formed can be roughly divided into the following parts.First of all,it is clear that the corporation to be formed starts from the time when the articles of association are signed and ends at the time when it obtains the independent lega l personality;after that,the corporation to be formed is admitted to ha ve limited legal subject status.It is recognized that the corporation to be formed is an independent organization that does not have the legal personality,but can engage in company establishment activities and business transactions beneficial to itself in its own name.Then,it is demonstrated that the core elements of determining the qualification of promoters are signing the articles of association and making capital contribution to the corporation to be formed.Finally,on the basis of clarifying the above theoretical issues,the pre-incorporation contract shall be limited to the contract concluded by the promoter during the existence of the corporation to be formed.In order to better analyze the issues related to the pre-incorporation contract,through the screening of the contract cases of pre-incorporation contracts in a certain period of time,76 cases were sorted out and make classification according to the contract name.In the current legislation,the paper analyzes the recognition of the name and effect of these contracts and discusses some applicable problems existing in the practice of the existing system design and research on the relationship between the pre-incorporation contract subjects,which provide contract type and theoretical basis for the attribution of contract responsibility;O n the analysis of responsibility attribution of the pre-incorporation contract,the contract types sorted out above and some principles of legislation with company law are referred to,which are used to analyze the actual situation and standard status of these contract responsibilities when the corporation has been established and failed to set up.In addition,the paper gives some argumentation and suggestions on the existing problems.It should be noted that,the model of taking the name of contract as the principle and the essence of contract as the exception,which takes into account the relativity of contract and the principle of contract nominalism.It protects the contract interests and transaction security of the third party,but there is no strict guarantee of the efficiency value of the business,the consistency of contractual rights and obligations,the balance of interests between contract subjects.The specific performance is that when the essence of the contract is inconsistent with the name of the contract,it is difficult to realize the rights and obligations of the essence of the contract.In addition,it does not give more design to the interest balance of the contract subject.After settling the third party's claim for the contract,it is easy to generate interest disputes between the promoter and the company related to this contract.O n the basis of guaranteeing the purpose of the contract and the interests of the third party,the ownership of contractual liability of the pre-incorporation contract,it also needs to balance the interests of other contract subjects.