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Legal thinking of one company

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[Abstract]:
Moneypartysoldierslawyers Abstract:Chinain2006inthecompanylawtoconfirmthelegalstatusofacompany,whichisundoubtedlytoencourageinvestment,prosperityandeconomic,promotethetransactionhasbroughtconvenience.
Money party soldiers lawyers
 
Abstract: China in 2006 in the company law to confirm the legal status of a company, which is undoubtedly to encourage investment, prosperity and economic, promote the transaction has brought convenience. The one-man company system has three hundred years of history in the west. The one-man company system in our country has its own characteristics because of its special national conditions. This paper will analyze the concept and definition of one-man company system and analyze the one-person company system in light of China's national conditions In the development and consolidation of our country
 
Key words: one company family business shareholders
 
One-men company (one-men company, one-member company), also known as sole proprietorship, or exclusive shares of the company, it has a narrow and broad sense of distinction. The broad sense of the one-man company, not only in the form of a sense of the company, but also includes the meaning of a one-man company, that is, the company is a single company, The company's real shareholder (Bona Fide Shareholder) has only one person, and the remaining shareholders are only holders of real shareholders who hold the shares for the benefit of the real shareholders. This substantial sense of the company is very common in the United States, because many US state companies require the company to have a certain amount of corporate shares, that is, qualifying shares (qualifying shares), so the vast majority of the shares of many companies by a A legal person or a natural person, and a very small proportion of the shares owned by the directors of the company. In addition, the family of companies are often manifested as a substantial sense of the company. So, what is the minimum shareholding ratio of the real shareholders of a company in the real sense? There is no uniform determination of this standard. However, the way in which one person operates a sole proprietorship, the so-called "sole proprietorship" is a way of equity operation. In the study of economics and jurisprudence, it generally means that the shareholder owns 100% or more of the company's equity The In fact, has indirectly identified the substantive sense of the one-person company's equity structure of the standard. In 1987, the American scholar, J.Curhan, W.Davidson and Rsuri, adopted this standard in a survey of "Tracing the Multinationals" Will be a wholly owned subsidiary of the modern society of an important form of the company, defined as the parent company holding ratio between 95% to 100% of the subsidiary ½. So, in the sense of ownership structure, one company can be defined as follows: One person is a 95% to 100% stake in the company owned by a shareholder.
 
One, one company in accordance with different standards can be divided into a variety of:
 
(A) the form of a company with a substantial one company. Form of a company is the company's organizational structure in full compliance with the concept of one-man company, that is, only one shareholder of the nominal person, the company's total investment or all shares held by the shareholders of a person; substantial one company refers to the form of the company The number of shareholders is in accordance with the minimum number of shareholders required by the Company Law, but the sole owner of the Company or the real owner of the shares is the sole shareholder of the company (bona fide shareholder) only one person, the rest of the shareholders are to meet the legal requirements or the company's real shareholders Interest and holding a certain share of the shares of shareholders. The real meaning of a company in the real life which is widespread, the company law is difficult to prohibit. The Salome Company, which was involved in the famous Salomon case (salomon v.salomon & Co. Ltd.) in the British case law of 1897, was regarded as one of the earliest recognized companies in the history of the company [1 ].
 
(B) the initial establishment of a company and the establishment of a change after the establishment of a company. Whether a company can be initially set up, obviously only according to whether the legislation is expressly allowed to set up a company. If the company law expressly stipulates that the number of shareholders must be two or more people, the company can only be established, it is impossible to produce the initial establishment of a company. And the establishment of a change after the formation of a company because of the company's capital free flow characteristics and easy to operate in the company's business process, but whether such companies have a legal status, but also depends on whether the legislation of the number of shareholders less than the number of cases As the legal cause of the dissolution of the company. From today's world of legislative trends, at present, still strictly abide by the company's community, in the company law is completely prohibited after the establishment of the formation of a change in the country and the country has been very few countries, such as China's Taiwan region, the majority of other countries On the establishment of a change after the formation of a company holding a tolerant attitude.
 
(3) State-owned sole proprietorship, sole proprietorship and natural person sole proprietorship. State-owned company is a special one-person company, all of its capital from the state-owned investors, often by the state-authorized departments directly as shareholders to represent the abstract state of shareholders to exercise equity. China's "Company Law" Chapter II of the third section that provides a one-man company's form, and its internal organizational structure made a special provision. Although it is formal, it is the form of a wholly owned company, but as a form of state-owned enterprises, it shows more of the difference with the general corporate-owned company, can be regarded as a special one-person company type. A wholly-owned company is a wholly-owned subsidiary of a parent company that is owned by a legal entity with a legal entity or has acquired all the shares of the company through the acquisition of the remaining shares of the company. Natural person One person is the most traditional one of the company, due to the limited liability of shareholders to attract, natural investors will often use the form of the company, the responsibility of property limited to the part of the capital into the company to reduce investment risk or business failure Risk, so this one company in the form of private business owners have been welcomed.
 
Second, the traditional legal system of confusion
 
The company is a legal person when no doubt, one of the essential characteristics of the legal person is its group [2] (page 1). The legal system is derived from the group law system of the Roman law and the group system of the Germanic law. In the twelfth century, the jurist put forward the concept of legal person, that is, the legal person is the majority of the group [3] (p. 29) This constitutes the basis of traditional legal theory. The modern corporate system that emerged in the 19th century was a new type of legal person system, and its early function was mainly to raise capital through the plural shareholders. Therefore, the modern corporate system has been labeled as a group from the date of its birth, and any group must contain two elements: people and property, in the group of people and property of the two elements, Group members - shareholders) have a decisive significance, its status and role, have been the most fully apparent [4] (pp. 7-8). Embodied in the company's legal system, the specific system are around the number of shareholders to start, such as the corporate governance structure to determine the corporate creditor legal protection system is built in such a company internal organizational structure. But in one company, the shareholders only one person, which fundamentally shook the basic characteristics of the corporate body corporate. As a result, the creation of one-man companies poses a challenge to the traditional concept of corporate identity. The traditional corporate governance structure is based on the diversification of property rights. The corporate governance structure is / about the mechanism of the relationship between the elements of the company (business) [5] (p. 32), whose legal value lies in adjusting the interests of the multiple property rights within the company. The basic content of which is the board of supervisors of the board of directors of the shareholders' meeting. The shareholders 'meeting or the general meeting of shareholders is the authority of the company. It will promote the will of the shareholders by means of legal procedures. The board of directors is the executive organ of the company, which is responsible for the implementation and realization of the company's will. The board of supervisors supervises the power of the shareholders' meeting and the board of directors. In this system, the shareholders 'meeting or the shareholders' meeting is at the core, it is the legal procedure to reconcile the shareholders will form a single company will, and the board of directors and the board of supervisors to protect its implementation for the purpose. But the characteristics of one-man company is not difficult to find that the sole shareholder of a company so that its shareholders will be with the shareholders or shareholders of the General Assembly will no difference, the shareholders of the General Assembly almost lost the overall will to enhance the will of the company's role, The sole shareholder is often the director and manager of the company. Therefore, one company is difficult to form the traditional corporate governance structure, and its impact.
 
Posing a threat to the company's independent personality. The legal personality of the company is established by the recognition of the law. As early as 1897, the British Chamber of Secon case, the House of Representatives ruling clearly stated: / in the law, the company is an independent person, completely different from the company's articles of association in the constitution, to independent liability As the core of the company independent personality, in the limited liability company and limited liability company as the representative of the traditional form of the company, there is a full expression. Company personality and shareholder personality, with the help of the three elements of the separation and checks and balances of corporate governance structure, in the realization of the company and shareholders of the will and property independence, has been clear and clear separation. However, in a company, although the law gives its independent personality, but the only shareholder of the fact that the mutual supervision between shareholders no longer exist, the only shareholder and the company is really separated from the practice is difficult to control, which It has led to a one-person company poses a threat to the company's independent personality.
 
In conclusion, the impact and challenge of one company on traditional corporate community, corporate independent personality and corporate governance structure has posed a threat to the protection of creditors' interests. Specifically, the company law has been the company's creditors to protect the various measures, the company has a group, the number of shareholders as the basic premise of the formulation, in the loss of this premise, the original protection measures are But also on the company creditors effective, it is doubtful; one company in the company will and shareholders will almost lose the difference between the individual, the company's sole shareholder of the lack of effective control of the power, it is easy to bring shareholders and the pursuit of private selfish private expansion, And then damage the interests of creditors; in the actual operation of the company, one person's independent personality is likely to not be active and effective maintenance of shareholders, which makes it difficult for companies to deal with the transaction is clearly the object of its shareholders whether the company or the company , In this case, the interests of creditors are also facing the risk of being damaged.
 
Third, the theory and practice of one-man company system in China
 
(A) China's 1993 "Company Law" attitude
 
China's 1993 Company Law 6 From the corporate community, it is required that the shareholders of the limited company be 2 or more, 50 or less (Article 20), and the shareholder of the joint stock company is 5 or more (Article 75). On the establishment of the meaning of a company to take the principle of the prohibition of the exception to the attitude of the prohibition of legal persons, natural persons set up a company, an exception to allow state-owned sole proprietorship and foreign sole proprietorship. Because its sole shareholder is the state, the state-owned sole proprietorship is of course a company, and its establishment is strictly restricted to the state authorized investment institutions or departments. Foreign investment may also be established in China by a foreign-funded enterprise law 6 in China. In real life, investors often look for nominal shareholders to circumvent the prohibition of the establishment of a one-man company. This is a real sense of the company. In view of the inability to prohibit the company registration authority, the 1993 Company Law 6 is also expressly prohibited. The existing 5 Company Law 6 does not allow the state-authorized investment institutions or departments outside the commercial entities to set up a company, but whether to prohibit the diversification of limited liability companies or joint-stock companies due to equity transfer into a company, worthy of study. For example, when an ordinary limited liability company or a shareholder of a joint stock company has signed an equity transfer agreement, how to treat the effect of equity transfer? There are three options for this: (1) The equity transfer agreement is invalid. Because the result of the agreement is that the transferee becomes the sole shareholder of the company and the one company is prohibited by the Company Law. (2) the equity transfer agreement is valid, but after the performance of the agreement the company has only one shareholder of the company should be dissolved. The reason is that the "Company Law" does not allow the establishment of one company; but one person set up the prohibition is not equal to the prohibition of equity transfer. (3) The equity transfer agreement is valid and the one-person company that appears after the performance of the agreement should not be dissolved. I hold the third view. One of the reasons is that the provisions of Article 20, paragraph 1, of the Company Law, which are jointly funded by two or more of the following shareholders, are written in the establishment and organization of Chapter 2 Limited; This provision does not apply to survivors after the establishment of the company. Article 190 and Article 191 of the Company Law also do not regard any one of the shareholders of the Company as the statutory dissolution of the company. From the company as far as possible to complete the company's investors, as far as possible to maintain the company's survival and development principles, since the legislator did not limit the minimum number of shareholders of the company's requirements extended to the company's entire process, and the company's shares And the assets are not weakened by the decrease in the number of shareholders, the company's capital on the degree of protection of the company's creditors are not so weakened, the scope of the provisions of the provisions of the provisions should be interpreted meaningless, and should not be extended interpretation. Therefore, one company is indeed a big challenge to the corporate community, but it does not constitute the cause of the dissolution of the company. The second is that the current Company Law does not prohibit the transfer of its shares to another shareholder, since the lack of prohibition of norms; under the spirit of freedom of contract, the agreement shall not be regarded as invalid. The current "Company Law" only prohibits the establishment of a one-person company, does not prohibit the diversification of limited liability companies or joint-stock companies due to equity transfer and into a company. For the existence of a formal form of the one-man company, the company registration authority should actively handle the change of shareholder registration, not only one person on the grounds of the refusal to apply for registration The court can also be issued to the company registration authority to assist the implementation of the notice.
 
(2) from the perspective of our cultural traditions of the interpretation of the natural person one company
 
Chinese family business has its own national characteristics of the social basis and cultural values ​​on the root causes. This kind of social structure and cultural tradition will inevitably lead to the famous American scholar Parsons and Hills said the way of thinking and behavior on the specialism [6]. Because the family or family as the core congenital conquest of the relationship is always the first to be specialism to encourage, and Chinese society is the use of kinship to build a unique structure and specialist tradition, and thus maintained five thousand Year of civilization. In Chinese society, specialism can almost be equivalent to family culture or family culture. Some Chinese scholars on China's traditional culture, national character and "family-based" interpretation is also quite profound [7]. "Family-based" specialist tradition comes from the closed traditional society, it profoundly applied to all levels of Chinese society.
 
Similarly, the tradition of "family-based" in our country must also be reflected in economic activities, with great emphasis on the role of family farming, family management and family. Western scholars have surveyed some Chinese entrepreneurs in Southeast Asia and found that most people see the business as a way to guarantee the survival and security of the family in a chaotic society. Business is a form of family, family reproduction of the tool. Family business is family money