General Theory of Company Law

Author: Zhou Yousu
Publisher:
Publishing Date: 2002-01-01
Features: This part of the book is a study on the basic theories of the company and company law. It consists of four chapters.
Chapter 1: Research on Basic Issues of the Company. This chapter examines the characteristics of the company, distinguishes it from related concepts, explores the historical origins of the company, analyzes the current state of company development in major Western countries, and discusses the historical and realistic development of companies in China. It strongly demonstrates that the company is a typical organizational form of the modern enterprise system and will also become the dominant model for enterprises in China.
Chapter 2: Research on Basic Issues of Company Law. This chapter analyzes the relationship between the company and company law, as well as the characteristics of company law, to argue the view that "the company is entirely a creation of law." The development of the company is closely linked to the legal system. It is precisely because of the progress of the legal system that the company has been endowed with universally applicable normative characteristics, allowing it to rise from an economic phenomenon to the level of an enterprise capital organizational form, thereby greatly promoting the development and progress of the economy and society. This chapter introduces the company laws of major Western countries, studies the company legal systems of Taiwan and Hong Kong, and reviews the current company law of China, enabling readers to gain a deep understanding of the essence and characteristics of China's company law through comparison.
Chapter 3: Company Functions and Legal Analysis. This chapter provides an in-depth and accessible analysis of the company's functions, including capital-raising, corporate legalization, modernization of enterprise management, and clarification of property rights. The company's functions have been tested by history for over a century and still meet the needs of the current era and economic practice. The purpose of this chapter is not merely to provide an ideological perspective on the company's functions but also to offer a reference for the various types of companies in the real economy, hoping that all companies, after possessing the "form" of a company for many years, can soon acquire the "spirit" of a company.
Chapter 4: Research on Relevant Issues of the General Provisions of Company Law. This chapter selects three important issues that have attracted attention: the nature of company equity, the denial of corporate personality, and company reinvestment. The nature of company equity is an enduring issue. The author, with a pragmatic approach, concludes that equity is neither a creditor's right nor a property right, but simply equity. The denial of corporate personality has been a major focus of company law research in recent years. This chapter proposes targeted suggestions for the application of the denial of corporate personality in China's judicial practice. Company reinvestment is a general issue in company law, and this chapter conducts a forward-looking study, including the understanding of reinvestment limits, the pros and cons of reinvestment, and the defects and improvements of the current "Company Law" regarding reinvestment.
The second part of the book is a practical study on different types of companies, consisting of six chapters.
Chapter 5: Practical Research on Joint Stock Companies. This chapter is divided into 15 sections and covers the theories and practical issues related to the establishment, capital, shares and stocks, issuance of shares, transfer of shares, corporate bonds, articles of association, shareholders and shareholders' meeting, board of directors, managers, supervisory committees, finance, accounting, mergers and divisions, dissolution, liquidation, and bankruptcy of joint stock companies. The innovative content mainly includes: the nature of the company in the establishment stage, establishment liability and invalid establishment, special forms of share transfer (share buyback, acquisition of listed companies, share exchange, share pledge, court-enforced execution of equity, share auction, etc.), the circulation of state-owned shares of listed companies and the circulation of shares of non-listed joint stock companies, convertible bonds, remedies for illegal articles of association, the shortcomings of the "Company Law" regarding articles of association, remedies for defects in shareholders' meeting resolutions, the need for improvements in the shareholders' meeting system and shareholder protection, special committees of the board of directors, directors of the board, the shortcomings of the "Company Law" regarding managers, theoretical analysis of the design of the supervisory committee system, the shortcomings and improvements of China's supervisory committee system, the consequences of illegal distribution of dividends and the shortcomings of the "Company Law" regarding such provisions, the protection of shareholder and creditor interests in company mergers, antitrust regulation, the legislative shortcomings of the "Company Law" in mergers and divisions, the revocation of company dissolution, company restructuring, the legal status of companies in liquidation, and how to provide relief for creditors during company cancellation.
Chapter 6: Research on Several Legal Issues of Listed Companies. Listed companies hold a very important position among joint stock companies in China. This chapter selects highly theoretically and practically significant topics such as corporate governance structures, employee stock option systems, independent director systems, the protection of interests of small and medium-sized shareholders, and shareholder representative lawsuits for research. In the study of the corporate governance structure of listed companies, the author avoids clichés and explores the issue with innovative insights, combining "Chinese characteristics" and "local resources," demonstrating some unique achievements in thinking. The employee stock option system has become popular in recent years and is an important attempt to establish a sound incentive and restraint mechanism for listed companies. Based on a calm and thoughtful analysis, the author points out the advantages and disadvantages of the employee stock option system and, combining with the pilot implementation and implementation obstacles of the system in China, conducts a serious practical exploration of how to promote this system. The independent director system originated in countries with a single-tier company structure. The introduction of this system in China, based on a dual-tier company structure, inevitably leads to the coordination of two different systems. After careful argumentation, the author proposes that the significance of establishing an independent director system in China is not merely to strengthen and improve corporate supervision mechanisms but also to improve the corporate governance structure of listed companies, enhance the quality of listed companies, and promote the standardized development of the securities market. The participation of independent directors in listed companies is beneficial to improving the level of company management and decision-making, thereby increasing company efficiency and improving the construction of company systems. The protection of the interests of small and medium-sized shareholders in listed companies and shareholder representative lawsuits are a set of mutually complementary systems, aimed at ensuring that weak capital is not maliciously bullied by strong capital in the world of "share majority voting." This chapter has made some beneficial explorations.
Chapter 7: Practical Research on Limited Liability Companies. To avoid repetition with the chapter on joint stock companies, this chapter focuses on some unique issues of limited liability companies. The author believes that the "capital combination" attribute of joint stock companies more reflects their organizational characteristics, while the "human combination" attribute of limited liability companies more reflects their contractual characteristics. Correspondingly, the regulations of the "Company Law" on joint stock companies are basically mandatory, while the regulations on limited liability companies are largely optional. In the section on "Several Issues of the Establishment of Limited Liability Companies," the author focuses on issues with strong practical relevance, such as the number of founders and shareholders, shareholder contributions, and establishment procedures. The content involved, including the improvement of China's "Company Law" on contributions, liability for false contributions, and the nature of establishment agreements, contains many innovative views. In the section on "Several Issues of the Continuation of Limited Liability Companies," the author discusses the transfer of shareholder contributions, the duties and responsibilities of directors, managers, and supervisors of the company, the representation of directors and managers beyond their authority, company deadlock and its legal remedies, forms of company change, the relevance of "one-person companies" and state-owned single-shareholder companies, demonstrating the depth of the author's understanding.
Chapter 8: Practical Research on Foreign-Invested Companies. The foreign-invested companies defined in this chapter include joint ventures between Chinese and foreign parties and wholly foreign-owned limited liability companies. Among them, joint ventures between Chinese and foreign parties include both limited liability companies and joint stock companies. This chapter focuses on joint ventures between Chinese and foreign parties, discussing the establishment conditions and procedures of joint venture limited liability companies, contribution systems, joint venture contracts, the establishment of joint venture joint stock companies and other joint ventures, organizational structures, land use, share transfers, audits, finance and accounting, dissolution and liquidation, and also explores issues related to wholly foreign-owned limited liability companies. Finally, it discusses the alignment of the legal system of foreign-invested enterprises with the "Company Law" and further improvements to the legal system of foreign-invested enterprises.
Chapter 9: Research on Branches of Foreign Companies. This chapter involves the analysis of the legal characteristics and legal status of branches of foreign companies, the comparison of branches of foreign companies with other foreign-invested economic organizations, and practical issues such as the establishment, supervision, and liquidation of branches of foreign companies.
Chapter 10: Research on Legal Liability under Company Law. Legal liability under company law includes civil liability, administrative liability, and criminal liability. In response to the increasing number of civil liability cases in company practice and the relatively weak research on such issues, this chapter pays more attention to civil liability research. It not only lists the types of civil liability under company law but also explores the litigation implementation mechanisms of civil liability and the shortcomings and improvements of the "Company Law" regarding civil liability provisions. The research on administrative liability focuses on the implementing agencies and procedures of administrative liability, and points out the shortcomings and improvement directions of the current "Company Law" in this regard. Regarding criminal liability under company law, the author, combining relevant provisions of the "Criminal Law," discusses 16 types of criminal acts involving companies in detail.
The third part of the book is a study on related issues of company law, selecting topics that are hot in current company practice.
Chapter 11: Research on Related Enterprises. This chapter reviews the numerous seemingly plausible definitions of related enterprises in academia and practice in recent years and provides a relatively accurate definition of related enterprises using linguistic philosophy and hermeneutics. More importantly, the author, through the study of the real construction of related enterprises, presents a brand-new interpretation of the legal regulation of related enterprises from several different perspectives.
Chapter 12: Research on Enterprise Groups. This chapter criticizes the traditional definition and research methods of enterprise groups and provides a detailed discussion of the meaning, origin, structure, function, and legal regulation of enterprise groups.
Chapter 13: Research on Cooperative Shareholding Systems. This chapter discusses the different legal relationships between cooperative shareholding enterprises and collective-owned enterprises, cooperative enterprises, and companies, and elaborates on the property rights relationships, leadership systems, and legal regulation of cooperative shareholding enterprises.