The establishment of a company refers to the legal acts that the promoters of the company must take and complete in order to form a company and obtain legal personality in accordance with legal conditions and procedures. So, here's what I've compiled for you, setting up a limited liability company to prevent risks. Welcome to read and browse.
I. Number of shareholders and identity requirements of a limited liability company
According to Article 24 of the newly revised Company Law in 2005, a limited liability company is established with the contribution of less than 50 shareholders. ? Therefore, the number of shareholders who set up a limited liability company shall not exceed 50. If there are more than 50 shareholders, the establishment of the company will be deemed invalid by the court, and all the signed trial documents will also be invalid. All shareholders of the established company shall be jointly and severally liable for the debts or damages caused by the invalid establishment of the company. Therefore, we must first ensure that the number of shareholders who set up the company does not exceed 50. Secondly, according to the laws of our country, the shareholders of a company must be able to bear civil liabilities independently, including natural persons, legal persons or other economic entities with legal personality. Rural contractors, individual industrial and commercial households, cooperative enterprises and other economic entities without independent legal personality cannot become shareholders of the company.
Second, the company's registered capital should pay attention to the problem
The new company law further relaxed the scope of capital contribution. Article 27: Shareholders may make capital contributions in cash, or in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in money and transferred according to law. However, except for the property that cannot be used as capital contribution as stipulated by laws and administrative regulations. ? It can also be contributed by stages, but it should be noted that the initial contribution of all shareholders of the company shall not be less than 20% of the registered capital, nor less than the statutory minimum registered capital, and the rest shall be fully paid by shareholders within two years from the date of establishment of the company. Investment companies can relax to pay in full within five years.
The minimum registered capital of a limited liability company is RMB 30,000.00 Yuan, and the initial investment shall not be less than RMB 30,000.00 Yuan if it is invested by stages. Moreover, the monetary contribution of all shareholders shall not be less than 30% of the registered capital of a limited liability company. Otherwise, the company cannot be effectively established.
Three, the company establishment agreement should pay attention to the problem
The company establishment agreement is the basis of company establishment. A perfect shareholder investment contract or company establishment agreement should include the following contents: the name, identity card or industrial and commercial registration information of each shareholder; The name, nature, registered capital and address of the company to be established; The company's business scope, tasks and modes of operation; Mode and duration of capital contribution; Rights and obligations of shareholders; Procedures for transferring capital contribution or changing registered capital; Organization and management organization; The company's financial management system; Profit distribution and loss burden; Liability for breach of contract and dispute settlement. Incomplete content can easily lead to disputes between shareholders, because there is no agreement at first, and later changes in the situation or interest pattern can easily make shareholders start to supplement or explain the original imperfect investment contract or company establishment agreement in their own favor, resulting in different understandings among different shareholders. Many shareholder disputes are caused by this. Moreover, as the owner of the company's articles of association, the shareholders' investment contract or the agreement on the establishment of the company determines the content of the company's articles of association. Therefore, the company establishment agreement should be as clear and detailed as possible.
Fourth, seriously formulate the articles of association.
The new company law in 2006 is more reflected? Enterprise autonomy? In principle, more content is left to shareholders to decide freely. As long as there are differences between the articles of association and the law, the articles of association shall prevail. Where are the articles of association? Constitution? The status is becoming more and more obvious. Therefore, we should be more careful when formulating the articles of association. The articles of association of a limited liability company shall be formulated by all shareholders. The articles of association are different from the establishment agreement. Although the main contents of the articles of association are the same as those of the shareholders' contribution contract or the company establishment agreement, the shareholders' contribution contract or the company establishment agreement is aimed at all shareholders and its effective scope is limited to shareholders. The articles of association are aimed at the whole company, and the effective scope covers all personnel and their behaviors, so they should be registered and put on record. Therefore, the articles of association cover the shareholders' investment agreement or the company establishment agreement, but there are more agreed contents. Articles of association are the formal basis for resolving internal disputes. Incomplete or unclear articles of association are not only prone to disputes, but also have no specific basis when disputes arise, which is not conducive to the settlement of disputes. Therefore, the articles of association of the company should not only be complete in content and scientific and reasonable in scheme design, but also be revised in strict accordance with the authority and procedures stipulated in the articles of association, and the corresponding change procedures should be handled at the administrative department for industry and commerce.
Five, the articles of association shall clearly stipulate the legal representative.
Article 13 of the Company Law stipulates that the legal representative of the company shall serve as the chairman, executive director or manager in accordance with the articles of association and shall be registered according to law. Where the legal representative of the company changes, it shall go through the registration of change. ? Accordingly, the articles of association have relatively free space to stipulate the legal representative, and the legal representative of the company is certainly not the chairman of the company. However, the scope of the company's legal representative is also limited, and it can only be held by the chairman, executive director or manager, and it is based on the company's articles of association. Therefore, the company's articles of association must clearly stipulate who is the legal representative, and in order to prevent disputes caused by the change of the company's legal representative, the company's articles of association should specify the procedures for the change of the company's legal representative in detail, especially the dispute settlement mechanism should be carefully designed.
Six, the establishment of a one-person limited liability company should pay special attention to the problem
A one-person limited liability company refers to a limited liability company with only one natural person shareholder or one corporate shareholders. A one-person limited liability company shall indicate the sole proprietorship of a natural person or a legal person in the company registration, and indicate it in the company business license. The company law has made very strict provisions on the financial management and property independence of a one-person limited liability company. Article 63 of the Company Law: A one-person limited liability company shall make financial and accounting reports at the end of each fiscal year, which shall be audited by an accounting firm. ? Article 64 of the Company Law stipulates that if the shareholders of a one-person limited liability company cannot prove that the company's property is independent of the shareholders' own property, they shall be jointly and severally liable for the company's debts. ? The minimum registered capital of a one-person limited liability company is RMB 100,000. Shareholders shall pay in full the capital contribution stipulated in the Articles of Association. A natural person can only invest in establishing a one-person limited liability company, and a one-person limited liability company cannot invest in establishing a new one-person limited liability company. Therefore, there are great differences between a one-person limited liability company and a limited company. We must pay special attention to these differences to avoid risks.
Finally, we must pay attention to Article 2 12 of the Company Law: if a company fails to start business for more than six months without justifiable reasons after its establishment, or fails to start business for more than six months after its opening, its business license may be revoked by the company registration authority. ? Accordingly, the company should start business as soon as possible after its establishment, otherwise its business license may be revoked.
In short, attention should be paid to sorting out and clarifying the rights and interests between shareholders and between shareholders and the company in the establishment of the company to ensure the balance of rights and obligations of all parties; Establish and improve the corporate governance mechanism, clarify the company's operating procedures, and ensure the company's smooth operation. In doing so, the purpose of preventing risks in the establishment of the company has basically been achieved.
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