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公司法(英文续)  

2008-09-02 08:55:51|  分类: 知识共享 |  标签: |举报 |字号 订阅

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Article 60 A one limited liability company shall, in the company registration, give a clear indication that it is solely-funded by one natural person or legal person and the same shall be specified in the business license of the company.

Article 61 The articles of association of a one-person limited liability company shall be formulated by the shareholder.

Article 62 A one-person limited liability company has no board of directors. When the shareholder make a decision on any of the matters as listed in Article 38 of this Law, he shall make it in written form, put his signature to it and preserve it in the company.

Article 63 A one-person limited liability company shall make a financial statement by the end of every fiscal year, which shall be subject to audit by an accounting firm.

Article 64 If the shareholder of a one-person limited liability company is unable to prove that the property of the one-person limited liability company is independent from his own property, he shall bear joint liabilities for the debts of the company.

Section 4 Special Provisions on Solely State-owned Companies

Article 65 The provisions of this Chapter shall apply to the establishment and organizational setup of the solely state-owned companies. Any matter not covered by this Chapter shall be governed by the provisions of Sections 1 and 2 of this Chapter.

The term “solely state-owned company” as mentioned in this law refers to a limited liability company established through sole investment by the state, for which the State Council or the local people’s government authorizes the state-owned assets supervision and administration institution of the people’s government at the same level to perform the functions of the capital contributor.

Article 66 The articles of association of a solely state-owned company shall be formulated by the state-owned assets supervision and administration institution, or shall be drafted by the board of directors and then be submitted to the state-owned assets supervision and administration institution for approval.

Article 67 A solely state-owned company has no shareholders’ meeting. The state-owned assets supervision and administration institution shall exercise the functions of the shareholders’ meeting. The state-owned assets supervision and administration institution may authorize the company’s board of directors to exercise some of the functions of the shareholders’ meeting and decide on the important matters of the company, excluding those that must be decided by the state-owned assets supervision and administration, such as merger, split-up, dissolution of the company, increase or reduction of registered capital as well as the issuance of corporate bonds. For the merger, split-up, dissolution or application for bankruptcy of an important solely state-owned company, it shall, be subject to the examination of the state-owned assets supervision and administration institution, and then be submitted to the people’s government at the same level for approval. The term “important solely state-owned company” as mentioned in the preceding paragraph shall be determined according to the provisions of the State Council.

Article 68 A solely state-owned company shall establish a board of directors, which shall exercise its functions in accordance with Articles 47 and 67 of this Law. Each term of office of the directors shall not exceed 3 years. The board of directors shall include representatives of the employees. The members of the board of directors shall be appointed by the state-owned assets supervision and administration institution, but of whom the representatives of the employees shall be elected through the assembly of the representatives of the employees of the company. The board of directors shall have one chairman and may have deputy chairman. The chairman and deputy chairman shall be designated by the state-owned assets supervision and administration institution from the members of the board of directors.

Article 69 A solely state-owned company shall have a manager, who shall be hired or dismissed by the board of directors. The manager shall exercise his powers in accordance with Article 50 of this Law. Upon consent of the state-owned assets supervision and administration institution, the members of the board of directors may concurrently hold the post of manager.

Article 70 None of the chairman, deputy chairman, directors and senior managers of a solely state-owned company may concurrently take up a post in any other limited liability company, joint stock limited company or any other economic organization unless it is so consented by the state-owned assets supervision and administration institution.

Article 71 The board supervisors of a solely state-owned company shall be composed of at least 5 persons, of whom the employees’ representatives shall account for no less than 1/3, the concrete percentage shall be specified by the articles of association.

The members of the board of supervisors shall be appointed by the state-owned assets supervision and administration institution, however, of whom the employees’ representatives shall be elected through the assembly of representatives of the employees of the company. The chairman of the board of supervisors shall be designated by the state-owned assets supervision and administration institution from the members of the board of supervisors. The board of supervisions shall exercise the functions as mentioned in Article 54 (1) through (3) of this Law and those provided for by the State Council.

Chapter III Transfer of Stock Right of A Limited Liability Company

Article 72 All or some of the stock rights of the shareholders of a limited liability company may be transferred among the shareholders.

Where a shareholder intends to transfer his/its stock rights to any non-shareholder, he/it shall be subject to the consent of more than half of the other shareholders. The shareholder shall give the other shareholders a written notice about the matters related to the transfer of stock rights for their consent. If any of the other shareholders fails to give it a reply within 30 days after it receives a written notice, it shall be deemed to have consented to the transfer. If half or more of the other shareholders disagree to the transfer, the shareholders who disagree to the transfer shall purchase the stock rights to be transferred. If they refuse to purchase these stock rights, they shall be deemed to have consented to the transfer. Under the same conditions, the other shareholders have a preemptive right to purchase the stock rights to be transferred upon their consent. If two or more shareholders claim the preemptive right, they shall determine their respective purchase percentage through negotiation. If they fail to reach an agreement during the negotiation, they shall exercise the preemptive right on the basis of their respective percentage of capital contributions.

Unless it is otherwise provided for the transfer of stock rights in the articles of association, the articles of association shall be followed.

Article 73 When the people’s court transfers the stock rights of a shareholder pursuant to the mandatory enforcement procedure as provided in law, it shall notify the company and all the shareholders that the other shareholders have a preemptive right under the same conditions. If any of the other shareholders fails to exercise the preemptive right within 20 days after he/it receives the notice of the court, it shall be deemed to have waived his/its preemptive right.

Article 74 After a company transfers its stock rights in accordance with Articles 72 and 73 of this Law, it shall cancel the capital contribution certificate of the former shareholder, issue a capital contribution certificate to the new shareholder and modify the shareholders and their capital contributions in the articles of association and the register of shareholders. No voting of the shareholders’ meeting is needed for the modification of the articles of association due to the said transfer of stock rights.

Article 75 Under any of the following circumstances, a shareholder, who votes against the resolution of the shareholders’ meeting, may request the company to purchase its stock rights at a reasonable price:
(1)The company has not distributed any profit to the shareholders for 5 consecutive years, but it has made profits for five consecutive years and conforms to the profit distribution conditions as prescribed in this Law;
(2)The merger, split-up, or transfer of the main properties of the company;
(3)When the business term as specified in the articles of association expires or other reasons for dissolution as prescribed in the articles of association occur, the shareholders’ meeting makes the company continue existing by adopting a resolution on modifying the articles of association.

Within 60 days after the resolution is adopted at the shareholders’ meeting, if the shareholder and the company fails to reach an agreement on the purchase of stock rights, the shareholder may initiate a lawsuit in the people’s court within 90 days after the resolution is adopted at the shareholders’ meeting.

Article 76 After death of a natural person shareholder, his lawful inheritor may inherit the shareholder’s qualifications unless it is otherwise provided for by the articles of association.

Chapter IV Establishment and Organizational Setup of A Joint Stock Limited Company

Section 1 Establishment

Article 77 The establishment of a joint stock limited company shall satisfy the following conditions:
(1)The number of promoters meets the quorum requirement;
(2)The capital stock subscribed to by the promoters and raised by stock floatation reaches the minimum amount of the statutory capital;
(3)The issuance of shares and the preparatory work conform to the provisions of the law;
(4)The articles of association are formulated by the promoters, and are adopted at the establishment meeting if the company is to be launched by stock floatation;
(5)The company has a name and its organizational setup complies with that of a joint stock limited company
(6)The company has a domicile.

Article 78 A joint stock limited company may be established by way of promotion or stock floatation.
The establishment of a company by promotion means that the promoters establish a company by subscribing to all of the shares that should be issued by the company.

The establishment of a company by stock floatation means that the promoters establish a company by subscribing to some of the shares that should be issued by the company and offering the remaining shares to the general public or to particular objects for subscription.

Article 79 To establish a joint stock limited company, there shall not be less than 2 but not more than 200 promoters, of whom half or more shall have a domicile within the territory of China.

Article 80 The promoters of a joint stock limited company shall undertake the preparatory work of the company. They shall conclude a promoters agreement to clarify their respective rights and obligations during the course of establishing the company.

Article 81 Where a joint stock limited company is established by promotion, its registered capital shall be the total capital stock subscribed by all the promoters as registered in the company registration authority. The minimum amount of initial capital contributions to be made by all promoters shall be not less than 20% of the total registered capital, the remaining amount shall be paid off by the promoters within 2 years from the day when the company is established, while for an investment company, the remaining amount may be paid off within 5 years. Before the registered capital is paid off, no stock may be offered to others for subscription.

Where a joint stock limited company is established by stock floatation, its registered capital shall be the total actually paid capital stock as registered in the company registration authority. The minimum amount of the registered capital of a joint stock limited company shall be RMB 5 million yuan. If any law or administrative regulation provides a relatively higher minimum amount of registered capital, such provision shall be followed.

Article 82 The articles of association of a joint stock limited company shall specify the following matters:
(1)The name and address of the company;
(2)The business scope of the company;
(3)The form of company establishment;
(4)Total shares, par value of each share, and the amount of registered capital of the company;
(5)The name of each promoter, the shares it has subscribed to, as well as the form and date of capital contributions;
(6)The formation, powers, term of office, and rules of procedure of the board of directors,
(7)The legal representative of the company;
(8)The composition, powers, term of office, and rules of procedure of the board of directors;
(9)The composition, powers, term of office, and rules of procedure of the supervisory board;
(10)The method for profit distribution of the company;
(11)The reasons for dissolution of the company and liquidation methods;
(12)The methods for issuing notices or public announcements of the company; and
(13)Other matters deemed necessary by the meetings of shareholders’ assembly.

Article 83 The form of capital contributions of promoters shall be governed by the provisions in Article 27 of this Law.

Article 84 When establishing a joint stock company limited by promotion, the promoters shall subscribe, in writing, to the full amount of shares provided for in the articles of association. In the case of paying the capital contributions at one time, the promoters shall make the payment in a lump sum; in the case of paying the capital contributions by installments, the promoters shall make the down payment immediately. In the case of making capital contributions in non-monetary properties, the promoters shall go through the procedures for the transfer of property rights in pursuance of the law.

If any of the promoters fails to make capital contributions by following the provisions of the preceding paragraph, it shall bear the liabilities for breach of contract under the stipulations in the promoters agreement.

After the promoters have made their down payment, they should elect the board of directors and board of supervisors. The board of directors shall file a registration application with the company registration authority and submit thereto the articles of association, the capital verification certification as issued by a lawfully established capital verification institution, as well as other documents as provided for by the laws and administrative regulations.

Article 85 For a joint stock limited company established by stock flotation, the shares subscribed to by the promoters shall not be less than 35 % of the total shares. However, if it is otherwise provided for by any law or administrative regulation, such law or administrative regulation shall prevail.

Article 86 For the public offer shares, the promoters shall publish a prospectus and prepare share subscription forms. The share subscription form shall contain the items listed in Article 87, and a subscriber shall fill in the number and amount of shares he subscribes to, and his domicile, and shall affix his signature or seal thereto. A subscriber shall pay the shares according to the number of shares he has subscribed to.

Article 87 The prospectus shall be accompanied by the articles of association formulated by the promoters and shall state the following:
(1)The number of shares subscribed to by the promoters;
(2)The par value and issuing price of each share;
(3)The total number of unregistered stocks issued;
(4)The purposes of the fund raised;
(5)The rights and obligations of the subscribers; and
(6)The beginning and ending dates for the public offer and a statement that the subscribers may revoke their subscriptions if the offer is under-subscribed at the close of the offer.

Article 88 The public offer shares shall be underwritten by a lawfully established securities company and an underwriting agreement shall be concluded.

Article 89 For the public offer shares, the promoters shall sign an agreement with the receiving bank.

The receiving bank shall receive and hold as agent the payments for shares according to the agreement, produce receipts to subscribers who have made the payments, and shall be obliged to produce evidence of receipt of payments to the relevant departments.

Article 90 After full payments have been made for the public offer shares, they shall be verified by a lawfully established capital verification institution and a certification shall be issued thereby. The promoters shall hold a company establishment meeting within 30 days, which shall be composed of the subscribers. If the public offer shares are not fully subscribed to at the expiration of the time limit prescribed in the prospectus, or if the promoters fail to hold an establishment meeting within 30 days after full payment for the public offer shares is made, the subscribers may demand the promoters to make repayments for the public offer shares plus an interest calculated at the bank deposit interest rate for the same period.

Article 91 The promoters shall notify each subscriber of the date of the establishment meeting or make a public announcement about the meeting 15 days in advance. The establishment meeting may not be held unless subscribers representing at least half of the shares appear. The establishment meeting shall exercise the following powers:
(1) Deliberating the report on the pre-establishment activities prepared by the sponsors;
(2) Adopting the articles of association;
(3)Electing members of the board of directors;
(4)Electing members of the board of supervisors;
(5)Verifying expenses incurred for the establishment of the company;
(6) Verifying the value of the assets contributed by the promoters in lieu of pecuniary payment for the shares;
(7)Where any force majeure or any material change in the operational conditions that may affect the company''s establishment occurs, a resolution not to establish the company may be adopted.
A resolution adopted at the establishment meeting on any of the matters as mentioned in the previous paragraph requires affirmative votes by subscribers representing more than half of the votes of those attending the meeting.

Article 92 The promoters and subscribers shall not withdraw their share capital after making payments for the shares they have subscribed to or after making capital contributions by using non-monetary properties, unless the public offer shares have not been fully subscribed within the time limit, the promoters fail to convene the establishment meeting within the time limit, or the establishment meeting has decided not to set up the company.

Article 93 The board of directors shall, within 30 days after the establishment meeting ends, file a registration application with the company registration authority and submit thereto the following documents:
(1)A company registration application;
(2)The minutes of the establishment meeting;
(3)The articles of association;
(4)A capital verification certification;
(5)The appointment documents and identity certificates of the legal representative, directors, supervisors;
(6)The certifications for the legal person or natural person status of the promoters; and
(7)The certification for the domicile of the company.

For a joint stock limited company established by stock floatation that makes public stock offerings, besides the aforementioned documents, it shall submit to the company registration authority the approval documents issued by the securities regulatory institution of the State Council.

Article 94 After the establishment of a joint stock limited company, if any of the promoters fails to make full payments for the capital contributions as stipulated in the articles of association, it shall make up the arrears and the other promoters shall bear several and joint liabilities.

After the establishment of a joint stock limited company, if it is found that the actual value of the non-monetary properties used as capital contributions for the establishment of the company is obviously lower than that as stipulated in the articles of association, the promoter who made the capital contribution shall make up the difference and the other promoters shall bear several and joint liabilities.

Article 95 The promoters of a joint stock limited company shall bear the following liabilities:
(1)In the event of failure to establish the company, being jointly and severally liable for the debts and expenses incurred from the pre-establishment activities;
(2)In the event of failure to establish the company, being liable for refunding the paid-in capital as well as the interests thereof calculated at the bank interest rate for the same period; and
(3)If the company’s interest is injured in the course of its establishment due to the negligence of the promoters, being liable for making compensations to the company.

Article 96 Where a limited liability company is changed into a joint stock limited company, the total amount of the paid-in capital shall not be less than the total amount of the net assets. Where a limited liability company is changed into a joint stock limited company, the public offer stocks issued for the purpose of increasing the capital shall comply with the law.

Article 97 A joint stock limited company shall prepare and keep in the company the articles of association, register of the shareholders, stub of corporate bonds, minutes of the shareholders’ assembly meetings, minutes of the meetings of the board of directors, minutes of the meetings of the board of supervisors, and financial reports.

Article 98 The shareholders shall be entitled to consult the articles of association, register of the shareholders, stub of corporate bonds, minutes of the shareholders’ assembly meetings, minutes of the meetings of the board of directors, minutes of the meetings of the board of supervisors, and financial reports, and may put forward proposals or raise questions about the business operations of the company.

Section 2 Shareholders’ Assembly

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