《英美商法》双语国家级精品课程课件PPT-第05章 The formation and constitution of the company.ppt

Key points of each Session Learning Objectives: a) Explain the role and duties of company promoters. b) Describe the procedure for registering companies, both public and private. c) Describe the statutory books, records and returns that companies must keep or make. 1. Promoters and pre-incorporation contract (c) Contents: (ⅱ) fiduciary duties to those people who are to own the company (if different from themselves) ①No conflict of interest with the company, it does not matter if the promoter obtains some advantage from his position as promoter. ②disclosure of interests: A promoter may not make a secret profit while acting in that capacity. If he has received it, he may be compelled to account for it to the company. Erlanger v New Sombrero Phosphate Co [1878] ③not to make a wrongful profit: Gluckstein v Barnes Appendix: ★ About legitimate profit and wrongful/secret profit Legitimate profit: made by a promoter (who acquires interest in property before promoting a company and then makes a profit when he sells the property to the promoted company )provided he discloses it. Wrongful/secret profit: made by a promoter who enters into and makes a profit in a contract as a promoter. He is in breach of fiduciary duties. NB: Wrongful/secret profit may be recovered; sometimes contract may be rescinded. Appendix: 信义义务(fiduciary duty)这一述语源于英国衡平法，它是指当事人之间基于信义关系而产生的义务，信义关系从本质上看，它是指特定当事人之间的一种不对等(non-arm's length)的法律关系，即受信人处于一种优势地位，而受益人(beneficiary)或委托人(the principle)则处于弱势地位，受信人作为权力拥有者(the powerholder)具有以自己的行为改变他人法律地位的能力，而受益人或委托人则必须承受这种被改变的法律地位且无法对受信人实施直接控制。法律为了保护受益人或委托人的利益，防止受信人滥用其权力，以确保双方的信任关系，就要求受信人对受益人或委托人负有信义义务. Erlanger v. New Sombrero Phosphate Co (1878) Fact: C, the promoter, acquired the lease of a phosphate mine in the West Indies for ￡55,000. The transaction was on his own account but in the name of another. Investment was not profitable. He then proceeded to sell the mining rights to the newly formed company for ￡110,000. The purchase was approved by the board of dir