Compared with the normal operating state after the establishment of the company, the establishment process of the company is an abnormal state of the company. The sponsors' initiating and trading behaviors in the establishment of a company are carried out together with creditors and subscribers, and the consequences of the behavior will involve the distribution of risks and benefits among the established company, creditors and sponsors. The classification criteria of these behaviors directly reflect the analytical thinking, and also directly affect the systematicness and completeness of the conclusions.
According to the different purposes and legal subjects of the company's establishment, the company's establishment behavior can be divided into the initiation behavior and the transaction behavior. In order to promote the establishment of a company, promoters must carry out necessary founding activities, which are called initiating activities, while the behavior of promoters trading with others in the name of the company is called trading behavior in the establishment. The advantages of this distinction are as follows: firstly, in nature, we can get rid of the general standards of "contract conclusion time" and "contractor name" and grasp the behavior of the company in establishment more accurately, which is helpful to further promote the research on the company in establishment. Secondly, the liability model established according to this classification is relatively comprehensive, which can basically cover the attribution of various behaviors when the company is established (it should be noted that the legal liability caused by the defects in the company establishment does not belong to the consequences of the behaviors in the company establishment in this paper, so the liability of the sponsors for compensation caused by the invalid company establishment is basically not considered when establishing the model). Thirdly, it is easy to judge from the appearance of behavior, so that the responsibility of behavior can be smoothly classified into the model to which it belongs, and the efficiency optimization brought by establishing the model can be realized.
(1) Initiate behavior
Initiation behavior refers to the actions taken by promoters to complete the formation of a company in accordance with the conditions and procedures prescribed by law, the core of which is that the purpose of these actions is to establish a company. Some scholars call it pre-company behavior, and think it is a preparatory behavior of the company's business behavior, which is of great significance to the normal business behavior after the company is established.
Some scholars call the inherent behavior of establishing a company initiation behavior, that is, the establishment authority of the promoters. Throughout the corporate legislation of various countries, it probably includes (but is not limited to): concluding promoter agreement, concluding articles of association, electing the board of directors and the board of supervisors, applying for establishment registration, issuing shares, contributing capital, subscribing shares, paying subscription fees, convening a company establishment meeting, and applying for establishment registration. In nature, apply for registration of establishment, issue shares and apply for registration of establishment. The characteristics of initiation behavior are: limited to the legal relationship between sponsors and the establishment registration authority, and the legal relationship between sponsors and subscribers for the purpose of establishing a company generally does not include transactions with third parties.
(2) The trading behavior of the company under establishment
In commercial law, transaction refers to the commercial behavior of commercial subjects for profit, and it is a dynamic circulation activity, which is mostly manifested in the conclusion of commercial contracts and the performance of relevant commercial law obligations. The biggest difference between the transaction behavior and the initiation behavior in the establishment of a company is that the initiation behavior is carried out in full accordance with the procedures for the establishment of the company, while the transaction behavior is carried out with other commercial entities, with the purpose of "seeking benefits other than capital".
1, overview
In a sense, the trading behavior system in the establishment of companies in various countries mainly focuses on economic and social effects, and puts legal factors in a secondary position, because according to the legal behavior rules of traditional civil law, civil juristic actors cannot conclude contracts in the name of legal subjects who have not yet obtained full qualifications, which leads to the absolute invalidity of contracts from the beginning, and there is no way to make them effective by updating or undertaking contracts. Therefore, from a purely theoretical point of view, the trading behavior before the establishment of the company can neither be placed under the unauthorized agency system, nor can it be recognized as a contract with a third party, which is almost in a "legal vacuum" state.
The reason why the theory of company law puts forward a different point of view from the contract law on the trading behavior before the establishment of the company and conditionally admits the existence of unnecessary trading behavior before the establishment of the company is because it takes into account the special relationship between the promoters and the company and the characteristics of the trading behavior before the establishment of the company. The purpose is to enable the company to save trading costs by accepting the transactions of the promoters before the establishment of the company, which is also in line with the original intention of the promoters when trading. Therefore, it is not feasible to seek the solution of pre-establishment transaction simply from the perspective of contract law. We should jump out of the strict rules of civil law and seek the solution from the perspective of commercial law.
Step 2 classify
The transaction behavior of a company under establishment refers to the contractual behavior between the promoters and other economic entities in the name of the company before the company has the status of an independent legal person. According to the purpose and characteristics of the behavior, it can be roughly divided into two categories: one is the subsidiary behavior of establishment and the preparatory behavior of business, that is, the necessary trading behavior in the establishment of the company; The second is the trading behavior related to the company's future business before the establishment of the company, that is, unnecessary trading behavior other than the company's initiation behavior. The former is a necessary condition for the establishment of a company, so it has the basis of belonging to the established company, while the latter is not a necessary condition for the establishment of a company and has no binding effect on the company in principle. The two acts are different in nature and have different legal consequences.
(1) Necessary trading behavior
(1) Establishment of accessory behavior
The subsidiary behavior in the establishment of a company refers to the behavior incidental to the company's initiation and necessary for the company's establishment. It mainly includes hiring a law firm to issue a legal opinion and an accounting firm to issue a capital verification report to complete the legal affairs in the process of company establishment; When the company was established, it signed an underwriting agreement with the securities company, signed a collection agreement with the stock collection bank, and made legal acts such as offering advertisements. Compared with the inherent act of establishment (i.e. initiation), the act of establishing a subsidiary is beyond the scope of the former, which is manifested as a civil and commercial contract concluded with a third party other than the initiator and the subscriber, and the contract was fulfilled before the company was established. So for the established company, most of the establishment behaviors are.
(2) Business preparation behavior.
Generally speaking, foreign company legislation stipulates that a company should take necessary actions to complete its establishment as its direct purpose. However, China's "Company Law" also specifically stipulates that in addition to the statutory registered capital, a company must also have "necessary business premises and conditions" in order to make the company in a state of being able to operate after its establishment. Therefore, in order to make the company meet the establishment conditions stipulated in the Company Law, the company entered into a contract with a third party during its establishment to obtain the necessary production and operation conditions. Therefore, from this point of view, it is obviously not enough for a company's behavior in the process of establishment to be limited to the direct purpose of company establishment, as in foreign legislation, and it should also include the legally and economically necessary trading behavior that creates the necessary conditions for the company's establishment as stipulated in the Company Law, which scholars call the business preparation behavior. In China, it generally includes: (1) signing a construction project contract to build a house to set up the business premises required by the company; (two) sign a lease contract to rent a house; (3) Requisition of land to obtain land use rights; (4) Accepting the capital contribution, registered capital and capital verification of shareholders; (5) signing employment contracts with employees, etc. The above-mentioned behavior is also called business preparation in the establishment of a company, and it is also a company in the process of establishment.
(2) Unnecessary transactions
In addition to necessary transactions, sponsors can also conduct transactions other than the establishment of the company, which usually refers to the behavior of sponsors to conduct business transactions with a third party in the name of the company being established in order to maintain business opportunities. Unlike necessary trading behavior, unnecessary trading behavior is usually not or not only for the purpose of setting up a company. How to define the legal effect of this behavior?
China's company law has no clear relevant provisions. Paragraph 2 of Article 3 of the Regulations of the People's Republic of China on the Administration of Company Registration stipulates: "If a company is established as of the date of implementation of these Regulations, it shall not engage in business activities in the name of the company without the approval and registration of the company registration authority." It can be seen that at present, China's laws do not allow or approve subjects who have not obtained independent legal status to engage in acts that can only be engaged after obtaining corresponding qualifications.
However, due to the combination of standardization of company establishment and administrative examination and approval in China, it often takes a period of time from the time when the sponsors sign the Sponsor Agreement to the time when they obtain the Business License of Enterprise as a Legal Person and formally obtain the qualification to engage in business activities. Companies in this period, especially limited liability companies and joint stock limited companies initiated by them, often have the three elements of promoters, articles of association and capital required for establishment, and are already the embryonic form of companies. If there is a suitable trading opportunity at this time, then in the rapidly changing economic society, a rational commercial subject should not miss a suitable profit opportunity. However, if the counterparty is willing to trade with the established company based on its strength and development prospects, the transaction conforms to the profit principle and fast trading principle of commercial law. If the law stipulates that the established company shall not engage in trading activities, the signed contract will be invalid, which will make the established company lose many related trading opportunities, thus damaging its economic interests.
The goal of commercial transaction is to make full use of existing resources and pursue the maximization of economic benefits. Simple and quick is an important principle of commercial legislation in all countries. Moreover, commercial law also regards encouraging transactions as one of its basic principles, aiming at promoting social and economic exchanges as much as possible by optimizing and utilizing resources to the maximum extent. For transactions with errors or defects, we can provide relief to the parties as much as possible, and legislation should not prohibit sponsors from setting up transactions outside the company in order to keep trading opportunities, so as to provide a more favorable development environment for established companies and promote economic development. This is a mature commercial legislation in the world.