Pre-incorporation Contract From The Perspective Of Civil Law

With the complication and frequency of commercial transactions,it is increasingly common for companies engaging in transactions during the establishment phase and promoters signing pre-incorporation contracts.However,due to the difficulty of clarifying the jurisprudence logic of the civil law behind relevant regulations,it is rather hard to apply rules in terms of pre-incorporation contracts.This article argues that an establishing company shall be considered as a civil subject with legal personality,and its promoters shall be deemed as agents of the establishing company,the scope of agency is limited to the necessary behavior.When a promoter enters into a pre-incorporation contract in the name of himself,according to whether the counterparty knows about the proxy relationship,the indirect proxy rules and anonymous proxy rules should be applied respectively.When a promoter enters into a pre-incorporation contract in the name of the establishing company,the substance of“conformation” from the company is recognition of unauthorized agency,so it should only be exercised when the promoter transcends his authority.When the promoter enters into a pre-incorporation contract in the name of a company before the company is legally established,if the counterparty knows such fact,then the applicable rules shall be the same as contracting in the name of an establishing company;if the counterparty is unaware of such fact,the rule of unauthorized agency should be applied by analogy.