Sponsor, also known as sponsor, refers to the person who enters into a sponsor agreement, applies for the establishment of a company, subscribes for the shares of the company and is responsible for the establishment of the company in accordance with relevant laws and regulations. The promoter is not only an important element of the establishment of a joint stock limited company, but also the executor of the initiation or establishment.
The company law of western countries generally stipulates that promoters must have the capacity to act, and those who have no capacity or limited capacity may not act as promoters, which is determined by the task of establishing a company undertaken by promoters. Secondly, the sponsor can be a natural person or a legal person. But if the sponsor is a legal person, it must be an enterprise legal person. Some countries and regions also stipulate that sponsors must have a local residence, or must be nationals, or nationals must account for a certain proportion of sponsors. Before the implementation of China's Company Law, there were strict regulations on the qualifications of promoters of joint stock limited companies. Article 10 of the Standard Opinions on Joint Stock Limited Companies stipulates: "The promoters of a company shall be legal persons (except private enterprises and foreign-funded enterprises) established in People's Republic of China (PRC). However, when a Chinese-foreign joint venture acts as a sponsor, it shall not exceed one third of the number of sponsors. Natural persons cannot be sponsors. " According to this regulation, the following persons cannot be promoters of a joint stock limited company: 1. Natural person; Second, private enterprises; 3. Wholly foreign-owned enterprises. At that time, this provision was made mainly to link up with the "Provisional Regulations on the Administration of Private Enterprises" just promulgated by the state. Considering that private enterprises have just started and their capital scale is limited, it is not appropriate to set up a joint stock limited company first, so it is stipulated that private enterprises should take the form of sole proprietorship, partnership and limited liability company. The restrictions on wholly foreign-owned enterprises as promoters of joint stock limited companies are mainly based on the relevant provisions of the Law on Wholly Foreign-owned Enterprises and the actual situation.
However, in the process of formulating China's company law, many people have expressed different views on the qualification restrictions of promoters of joint stock limited companies. They believe that with the development of market economy, the development of various economic sectors and the further development of opening to the outside world, the above qualification restrictions should be lifted in order to be in line with international standards. Whether it is a natural person or a legal person, whether it is a public-owned enterprise or a private enterprise, as long as it meets the conditions of promoters, such as having certain capital, it can become the promoters of a joint stock limited company. However, some people think that we can't go too fast, and we should only expand the promoters of joint stock limited companies to legal persons, and natural persons are not suitable for promoters, so that the transition is safer and more in line with China's national conditions. The company law basically adopts the opinions of the former part of people, and does not restrict the qualifications of promoters of joint stock limited companies, but actually cancels the above restrictions. This makes the image of China's company law more complete and more in line with international practice. However, the restrictions on the qualifications of promoters in the Company Law have not been completely abolished. According to Article 79 of the current Company Law of People's Republic of China (PRC), "To establish a joint stock limited company, there should be two or more promoters but not more than 200, and more than half of the promoters should have their domicile in China." There are at least two sponsors. However, if a state-owned enterprise is transformed into a joint stock limited company, the number of promoters may be less than five, but it must be established by raising funds. The Company Law makes loose restrictions on the minimum number of state-owned enterprises to be transformed into joint stock limited companies, mainly considering the heavy responsibility of the Company Law for the corporatization of state-owned enterprises and the advantages of strong financial resources of state-owned enterprises. This kind of flexible regulation can make the state-owned enterprises corporatize, realize the diversification of shareholders and give full play to the advantages of joint stock limited companies, but it is also restricted. It is stipulated that when there are less than five promoters, they must be established by way of offering, not by way of sponsorship, which can also achieve the goal of diversification of shareholders. The second is the restriction on residence, that is, more than half of all promoters must have residence in China. Restricting the domicile of promoters is mainly to consider that at least a certain number of promoters need to carry out various activities in the process of establishing a joint stock limited company to prepare for the establishment of a joint stock limited company. Moreover, the establishment of a joint stock limited company is a process that takes some time. Therefore, after a certain number of sponsors have their domicile in China, it is convenient to carry out various activities. At the same time, sponsors have more important responsibilities during and after the establishment of a joint stock limited company. Only having a domicile in China will help the state to manage and supervise the promoters and prevent them from taking advantage of the opportunity of setting up a joint stock limited company to harm the interests of the general public. However, the Company Law does not require all promoters to have domicile in China, but only requires more than half of them to have domicile in China. This will not only help the sponsors to carry out various activities, but also help the state to manage the sponsors. At the same time, it will also help foreign investors to invest in China and promote the economic development of China. The promoter has a domicile in China. As far as China citizens are concerned, it means that citizens have their domicile or habitual residence in China; For foreign citizens, it means that their habitual residence is in China; As far as a legal person is concerned, it means that its main office is located in China. Therefore, whether the sponsor has a residence in China depends not on whether he has a house in China, but on whether his habitual residence or main office is in China.
legal status
The sponsor status refers to the relationship between the sponsor and the company under construction when organizing the establishment of a joint stock limited company, and the relationship between the sponsor and the company after establishment. Generally speaking, the promoter is the person in charge of the company in the process of setting up before the establishment of the company, and within the scope of performing his duties. Carry out the establishment behavior affairs internally and represent the company under establishment externally. Once a company is established according to law, the behavior of the promoters becomes the behavior of the company's organs, and the rights and obligations arising therefrom are enjoyed or borne by the company. If the company is not effectively established, in order to ensure the safety of the transaction, the promoters shall be jointly and severally liable for the actions taken in the establishment of the company and the expenses incurred in the establishment. What are the reasons why the rights or obligations acquired by the promoters in the process of establishing a company will belong to the registered company in the future? There have always been different theories in law. Mainly includes:
Theory of negotiorum gestio
According to this theory, the relationship between sponsors and companies belongs to negotiorum gestio. After the establishment of the company, the rights and obligations arising from the establishment of the promoters shall be transferred to the company in accordance with the provisions of negotiorum gestio.
Third-party interest contract theory
According to this theory, the legal relationship between sponsors and others is a contract for the benefit of a third party based on the company to be established in the future. According to the relevant provisions of contracts for the benefit of third parties, the contracts concluded between promoters and others are inherited by the established company.
The company in the process of establishment said
According to this theory, the sponsor is the organ of the established company. In short, the promoters should belong to organizations without legal capacity before the establishment of the company, and the rights and obligations acquired by the promoters will be transferred to the company after the establishment of the company.
The agent said
That is, the promoters belong to the agents of unregistered companies, so the rights and obligations arising from the establishment of the promoters during the establishment process are transferred to the established companies.
Genetic theory
According to this statement, the rights and obligations arising from the sponsor's initiation behavior are of course inherited by the company according to the wishes of the parties or the provisions of the law.
Ownership theory
That is, when the promoters set up a joint stock limited company, they acquire rights or assume obligations due to necessary actions, and such rights or obligations naturally belong to the established company in law. In addition, there is the theory of partnership. According to this statement, promoters are an aggregate set up for the purpose of establishing a company, and the initiation behavior is based on the personality of all promoters, and the establishment behavior is the reciprocal behavior of promoters, so the relationship between promoters should belong to partnership. When the company cannot be established according to law, the promoters shall bear unlimited joint and several liability for the legal consequences of the establishment.
Sponsor of (stock) company
Each of the above has advantages and disadvantages. 1. The agency indicates that it can explain the rights or obligations and responsibilities of the promoters and their relationship with the company to be established in the future. However, in the case that the company cannot be effectively established, why do the promoters bear joint and several liability for the expenses of the establishment, while the society without rights and abilities does not bear joint and several liability and lacks explanatory power? Second, although the theory of negotiorum gestio can explain why the rights and obligations arising from the promoter's initiation of establishment are transferred to the established company, according to the theory of negotiorum gestio, the manager can only ask the managed person to pay the fees paid for negotiorum gestio, but not the remuneration. Whether the sponsor has the right to claim compensation from the company is difficult to answer satisfactorily. 3. The agent said that he could explain why the promoters can conclude a contract with a third party in the name of the company under establishment, and the rights and obligations arising from the establishment of the company shall be enjoyed and borne by the company under establishment. In the case that a company cannot be established according to law, why the rights and obligations arising from the establishment of a company are enjoyed or borne by the promoters, but not by the principal, that is, the company under establishment, and there is no explanatory power. Professor Michael Mecger, an American scholar and Indiana State University, holds the opposite view. He believes that the promoters are not agents of the company, but have a loyal obligation to the company under establishment. Fourthly, regarding the contract of a third party, it is generally believed that the promoters are bound together for the same goal of establishing a company, and their establishment behavior is naturally for the benefit of the company to be established in the future. The result of their establishment behavior is the establishment of a company according to law. However, according to the general principle of the contract with the third party in interest, if the company to be established in the future is the beneficiary, it will only inherit the rights arising from the establishment of the promoters, but will not assume obligations. This can't explain why all the rights and obligations arising from the establishment of promoters belong to the company established according to law in the future. 5. The mistake of inheritance theory is that before the establishment of the company, the company in the process of establishment has no personality, so it cannot inherit. Sixth, the attribution theory is too arbitrary, and it fails to explain the legal reason that the rights and obligations arising from the establishment of the promoters naturally belong to the established company.
rights and duties
As for the rights of promoters, some scholars believe that promoters can only enjoy them after the establishment of a joint stock limited company, on the grounds that the direct purpose of establishing a joint stock limited company is to obtain certain economic benefits, and this purpose can only be realized after the establishment of the company. In this regard, the author does not agree. In fact, before the establishment of a joint stock limited company, the promoters also enjoyed certain rights, mainly including the right to choose the mode of capital contribution and the right to choose the mode of establishment. According to Article 80 of China's Company Law, the promoters of a joint stock limited company can make capital contributions in cash, or in kind, industrial property rights, non-patented technology and land use rights. However, if the promoters invest in industrial property rights or non-patented technology at a fixed price, they shall not exceed 30% of the registered capital of a joint stock limited company. However, this restriction is for all sponsors. Individual sponsors can negotiate with each other, and one or several sponsors can only contribute capital with industrial property rights or non-patented technology. Physical objects, industrial property rights, non-patented technologies or land use rights as capital contributions must be assessed and valued. Especially when state-owned enterprises are restructured into joint stock limited companies, it is strictly forbidden to convert state-owned assets into shares at low prices, sell them at low prices or distribute them to individuals free of charge. If the land use right is used as the capital contribution, its evaluation and pricing shall be handled in accordance with the relevant provisions of laws and administrative regulations. According to Article 74 of China's Company Law, there are two ways to set up a joint stock limited company: one is to initiate the establishment; The first is to raise funds to set up. The so-called initiation and establishment means that the promoters subscribe for all the shares that the company should issue and set up the company without raising funds from anyone other than the promoters. The so-called establishment by public offering means that the promoters subscribe for part of the shares to be issued by the company and set up the company by offering the rest to the public. Generally speaking, promoters are free to choose how to set up a joint stock limited company. However, when a state-owned enterprise is transformed into a joint stock limited company with less than five promoters, it must be established by way of offering. In addition, according to Article 79 of the Company Law (13), promoters can also enjoy the extensive rights recorded in the articles of association that do not violate mandatory legal norms and social welfare. These rights mainly include the option of stock subscription, the priority distribution of dividends, the priority distribution of new shares, the priority distribution of remaining property, the right to claim compensation, the right to receive compensation for expenses and so on.
When establishing a joint stock limited company, the promoters have great influence on the investors, the company to be established in the future and the company's creditors, so the promoters also have considerable obligations. Generally speaking, sponsors mainly have the following obligations.
The obligation to pay in full.
To set up a joint stock limited company, the promoters must have certain funds, otherwise it will become empty talk. According to the second paragraph of Article 78 of the Company Law, the minimum registered capital of a joint stock limited company shall not be less than 6,543,800 yuan. If it is established by means of sponsorship, the promoters must subscribe for all the shares of the company; If it is established by offering, the shares subscribed by the promoters shall not be less than 35% of the total shares of the company, and the remaining shares shall be offered to the public. As for the mode of capital contribution, the sponsors can make capital contribution in cash, in kind, industrial property rights, non-patented technology and land use rights. Physical objects, industrial property rights, non-patented technologies or land use rights as capital contributions must be appraised and converted into shares according to law, and the valuation shall not be overestimated or underestimated. Where the promoters contribute capital at a fixed price with industrial property rights or non-patented technology, they shall not exceed 20% of the registered capital of a joint stock limited company.
Obligation of loyalty
In the process of establishing a joint stock limited company, the promoters should be honest. First of all, the sponsor's contribution must be true. Where the promoters contribute their capital in kind, industrial property rights, non-patented technology, land use rights, etc., they shall evaluate the price, verify the property and convert the shares, and shall not overestimate or underestimate the price. Generally speaking, if the promoters are natural persons or legal persons, they shall not overestimate the risk or make false contributions; When large and medium-sized state-owned enterprises are transformed into joint stock limited companies, they shall not underestimate the investment at a fixed price and divide the state-owned assets privately, resulting in the loss of state-owned assets. The shares of the company held by the promoters after capital contribution shall not be transferred to others within two years after the establishment of the company. After the promoters have paid their share capital or contributed capital to offset the share capital, they shall not withdraw their share capital, except for the failure to raise shares in full and on time, the failure to convene the founding meeting on time or the resolution of the founding meeting not to set up the company. Secondly, if a joint stock limited company is established by way of offering, the insufficient part shall be offered to the public. Prior to the offering, the promoters shall make and announce the prospectus. The contents of the prospectus shall be true, and there shall be no false records, misleading words or fraudulent activities in the name of offering. The prospectus shall record the amount of shares subscribed by the sponsors, the par value of each share and the issue price. When applying for company registration, the documents submitted by the sponsors should be true, otherwise the company registration authority will not register, and the sponsors will also bear corresponding legal responsibilities.
Duty of diligence
The promoters shall be diligent and conscientious in the process of establishing a joint stock limited company. Before preparing for the establishment of the company, the promoters shall fully investigate and study the necessity and feasibility of the proposed company, or invite experts to conduct feasibility demonstration. Only after the necessity and feasibility of setting up a company are affirmed can the specific preparations for setting up a company be started. Secondly, it is necessary to draft the articles of association of the company, actively raise capital, subscribe for sufficient share capital of the company, and go through the formalities of examination and approval for the establishment of the company, such as putting forward examination opinions to the competent authorities of the industry (foreign investment projects involving infrastructure, technological transformation and need to be submitted for approval must be approved by the foreign trade and economic cooperation department), and then report them to the national or provincial commission for restructuring the economy for examination and approval. If it is established by way of offering, it must be approved by the securities administration department of the State Council. After obtaining the approval of the relevant departments, the promoters shall actively prepare the prospectus and subscription book, determine the underwriting institution and sign the underwriting agreement. After full subscription, the promoters shall call for the subscription. After the subscribers have paid in full, the promoters shall preside over the founding meeting of the company within 30 days. Before the inaugural meeting 15, the promoters shall notify the subscribers of the date and place of the meeting or make an announcement. In the process of establishing a company, the promoters shall actively and comprehensively perform the contract concluded with a third party in the name of the company, and shall not delay the performance, which will affect the reputation of the company established in the future, and shall not sign a contract with a third party in the name of the company to deceive the third party.
Obligation to return capital contribution
Where a joint stock limited company is established by offering, after the promoters subscribe for a certain proportion of shares, the remaining shares shall be offered to the public. When the promoters offer shares to the public, they must announce the prospectus and subscribe, and at the same time, they must be approved by the securities management department of the State Council. If it is found that it does not conform to the provisions of the Company Law of China, it shall be revoked, and the promoters shall return the raised funds to the promoters, plus the interest of the bank deposits in the same period. If the issued shares have not been fully raised within the time limit specified in the prospectus, or if the promoters fail to convene the founding meeting within 30 days after the issued shares have been fully paid, the subscribers may require the promoters to return their capital contribution and add interest on the bank deposits for the same period, and the promoters shall not refuse. If the founding meeting decides not to set up the company due to force majeure or major changes in operating conditions, the promoters shall return the shares paid by the subscribers to each subscriber.