商法双语复习题(共6页).doc
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1、精选优质文档-倾情为你奉上1. What is a partnership? Answer: A partnership is an association of two or more persons to carry on as co-owners a business for profit. Although the word persons suggests living individuals, a partnership may also include other partnerships among its members; where it is permitted by l
2、ocal law, corporations can become partners. 2What are the essential characteristics of a partnership? Answer: (1)It is an association of individuals. (2)It is voluntary, in the sense that no person can be forced into a partnership. (3)There is co-ownership. Each of the partners must have a proprieta
3、ry interest not only in the profits, but also in the enterprise itself. (4)The association must be for profit. Nonprofit organizations cannot be partnerships. (5)There is mutual agency of partners. Each partner is the agent of the others and of the firm for all partnership acts. Since there is mutua
4、l agency, the relationship between partners is a fiduciary or confidential one, which means that there must be good faith and full disclosure among all the partners. (6)There is mutual liability of partners. Each partner is liable for all partnership acts.This means, in effect, that each partner may
5、 become exclusively liable for partnership debts and obligations if the firm and/or partners become insolvent. 3Who may be a partner? Answer: Any person competent to make a binding contract may become a partner.4. Public and private companiesPrivate companiesTend to be small scale enterprises owned
6、and operated by a small number of individuals. They cannot offer their shares to the public at large. Their shares are not quoted on any share market and tend not to be freely transferable. Public limited companiesTend to be large, and are usually controlled by directors and managers rather than own
7、ers. They are sources of investment and have freely transferable shares which are quoted on the Stock Exchange. 5Legal differences between public and private companies(a)public companies must have at least two directors, whereas private companies need only have one; (b) public companies have minimum
8、-issued and paid-up capital; (c) the requirement to keep accounting records is shorter for private companies; (d) the controls over distribution of dividend payments are relaxed in relation to private companies; (e) private companies may purchase their own shares out of capital, but public companies
9、 cannot; (f) private companies can provide financial assistance for the purchase of their own shares, but public companies cannot; (g) there are fewer and looser controls over directors in private companies, as regards their financial relationships with their companies6. Types of companies in China
10、a limited liability company a joint stock limited company The following conditions shall be fulfilled for the incorporation of a limited liability company:(1) The number of shareholders conforms to the statutory quorum; (2) The capital contributions of the shareholders reach the statutory minimum am
11、ount of capital; (3) The shareholders have jointly formulated the articles of association of the company; (4) The company has a name and an organizational structure established in compliance with the requirements for a limited liability company; (5) The company has a domicile.A one-person limited li
12、ability company referred to herein means a limited liability company with a sole shareholder of either a natural person or a legal person. A wholly state-owned company referred to herein means a limited liability company established through the States sole investment by the state-owned assets superv
13、ision and administration authority entrusted by the State Council or local peoples government to perform the capital contribution functions. The establishment of a joint stock limited company is subject to the following conditions: (1) The number of sponsors meets legal requirement; (2) The amount o
14、f capital stocks subscribed for by the sponsors and publicly placed reaches the legally-prescribed minimum capital level; (3) The issue of its shares and the preparation for its establishment comply with the law; (4) The sponsors prepare the articles of association, and such articles of association
15、of a company established by public share offer shall be adopted by the establishment meeting; (5) There is a company name, and the organs complying with the requirements for a joint stock limited company are established; (6) The company has a domicile. The registered capital of a joint stock limited
16、 company established by sponsorship shall be the total amount of share capital subscribed for by all the sponsors and registered with the company registration authority. The initial capital contribution of all the sponsors shall not be less than twenty percent (20%) of the registered capital, the re
17、maining of which shall be paid in full within two (2) years of the establishment of the company. In the event of an investment company, the remaining part of the registered capital may be fully paid within five (5) years of the establishment of the company. Prior to a full contribution to the regist
18、ered capital, sponsors shall not offer the shares to others. The registered capital of a joint stock limited company established by public share offer shall be the actual total amount of share capital that is paid up and registered with the company registration authority. The minimum amount of the r
19、egistered capital of a joint stock limited company shall be RMB 5,000,000. Where there is a higher level of the minimum amount stipulated by laws and administrative regulations, such stipulations shall apply. 7. The duty of loyalty The duty of loyalty addresses fiduciaries conflicts of interests and
20、 prohibits fiduciaries from serving their own interests at the expense of the corporations. Duty of care The duty of care, in simplest terms, requires directors to exercise the level of care that a person in a like position would exercise under similar circumstances. (1) in good faith(2) in a manner
21、 the director reasonably believes to in the best interests of the corporation. Business judgment rule Because directors, officers, and controlling shareholders enjoy positions of trust with the corporation, they must act in good faith and with loyalty toward the corporation and its shareholders. The
22、 undivided loyalty expected of fiduciaries means that managers must place the interests of the corporation above their own personal interests. Sometimes these corporate interests and personal interests collide, and it becomes necessary to resort to applicable statutes and decisional law. Usually suc
23、h collisions involve (1) corporate opportunities(2) conflicts of interestThe corporate opportunity doctrine forbids directors, officers, and controlling shareholders from diverting to themselves business deals or chances that in fairness or in justice belong to the corporation. Personal gains at the
24、 expense of the corporation represent a breach of the managers fiduciary duties. A corporate opportunity commonly will be found if the manager discovers the opportunity in his or her capacity as director and it is reasonably foreseeable that the corporation would be interested in the opportunity bec
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