Company law(1)(also “corporate” or “corporations” law) is the study of how shareholders, directors, employees, creditors,(2) and other stakeholders(3) such as consumers, the community and the environment interact with one another under the internal rules of the firm(4). Corporate law is a part of a broader companies law(or law of business associations). In UK, other types of business associations can include partnerships(5), trusts(6)(like a pension fund(7)), corporations limited by shares(8) or companies limited by guarantee(9)(like some universities or charities). US corporations are generally classified into C corporations, S Corporations(10), close corporations(11), public corporations(12), professional corporations(13) and non-for-profit corporations(14).
The four characteristics of the modern corporation are:
(1) Separate Legal Personality of the corporation(the right to sue and be sued in its own name i.e. the law treats the company as a human being);
(2) Limited Liability of the shareholders(so that when the company is insolvent(15), they only owe the money that they subscribed for in shares);
(3) Shares(usually on a stock exchange, such as the London Stock Exchange, New York Stock Exchange);
(4) Delegated Management（in other words, control of the company placed in the hands of a board of directors）.
Corporate law is often divided into corporate governance(which concerns the various power relations within a corporation) and corporate finance(which concerns the rules on how capital is used).
2. Corporate Personality
One of the key legal features of corporations is their separate legal personality, also known as “personhood” or being “artificial persons”. However, the separate legal personality was not confirmed under English law until 1895 by the House of Lords in Salomon v.Salomon & Co., Ltd.(16)
Separate legal personality often has unintended consequences, particularly in relation to smaller, family companies. In a case of 1978 it was held that a discovery order obtained by a wife against her husband was not effective against the husband's company as it was not named in the order and was separate and distinct from him. And in another case, a claim under an insurance policy(17) failed where the insured had transferred timber from his name into the name of a company wholly owned by him, and it was subsequently destroyed in a fire; as the property now belonged to the company and not to him, he no longer had an “insurable interest”(18) in it and his claim failed.
However, separate legal personality does allow corporate groups a great deal of flexibility in relation to tax planning, and also enables multinational companies to manage the liability of their overseas operations. For instance, victims of asbestos poisoning at the hands of an American subsidiary(19) could not sue the English parent in tort.
There are certain specific situations where courts are generally prepared to “pierce the corporate veil”(20), to look directly at, and impose liability directly on the individuals behind the company. The most commonly cited examples are:
a) where the company is a mere facade;
b) where the company is effectively just the agent of its members or controllers;
c) where a representative of the company has taken some personal responsibility for an action;
d) where the company is engaged in fraud or other criminal wrongdoing;
e) where permitted by statute(for example, many jurisdictions provide for shareholder liability where a company breaches environmental protection laws);
f) in many jurisdictions, where a company continues to trade despite foreseeable bankruptcy(21), the directors can be forced to account for trading losses personally.
3. Corporate Governance
Corporate governance is primarily the study of the power relations between the board of directors and those who elect them(shareholders and employees). It also concerns other stakeholders, such as creditors, consumers, the environment and the community at large. One of the main differences between different countries in the internal form of companies is between a twotier and a one tier board. The United Kingdom, the United States, and most Commonwealth countries have single unified boards of directors. In Germany, companies have two tiers, so that shareholders(and employees) elect a “supervisory board”, and then the supervisory board chooses the “management board”. There is the option to use two tiers in France.
4. Corporate Constitution
The United States, and a few other common law countries, split the corporate constitution into two separate documents(the UK got rid of this in 2006). The memorandum of association(or articles of incorporation) is the primary document, and will generally regulate the company's activities with the outside world. It states which objects the company is meant to follow(e.g. “this company makes automobiles”) and specifies the authorized share capital(22) of the company. By-laws are the secondary document, and will generally regulate the company's internal affairs and management, such as procedures for board of directors meetings, dividend entitlements etc. In the event of any inconsistency, the memorandum prevails and in the United States only the memorandum is publicized.
It is quite common for members of a company to supplement the corporate constitution with additional arrangements, such as shareholders' agreements, whereby they agree to exercise their membership rights in a certain way. A shareholders' agreement fulfills many of the same functions as the corporate constitution, but it is a contract, it will not normally bind new members of the company unless they accede to it. One benefit of shareholders' agreement is that they will usually be confidential, as most jurisdictions do not require shareholders' agreements to be publicly filed.
Ⅰ．课文及译文
1．概述
公司法（company law，亦作corporate law，或者corporation law）是有关股东、董事、雇员、债权人和其他利益相关者（如消费者、社会和环境等）之间如何依据企业内部规则相互发生联系的学问。不过更确切地说，corporate law只是companies law或law of business associations的一部分，后者的内容更为广泛。在英国，公司的类型还包括合伙企业、信托企业（比如养老金信托公司）、股份有限公司和担保有限责任公司（如大学和慈善组织）。美国的公司一般分为C公司、S公司、封闭公司、专业公司以及非营利公司。
Although some forms of companies are thought to have existed during Ancient Rome and Ancient Greece, the closest recognizable ancestors of the modern company did not appear until the second millennium. The first recognizable commercial associations were medieval guilds(23), where guild members agreed to abide by guild rules, but did not participate in ventures for common profit. The earliest forms of joint commercial enterprise under the lex mercatoria were in fact partnerships.
With increasing international trade, Royal charters(24) were increasingly granted in Europe(notably in England and Holland) to merchant adventurers. The Royal charters usually conferred special privileges on the trading company(including, usually, some form of monopoly). Originally, traders in these entities traded stock on their own account, but later the members came to operate on joint account and with joint stock, and the new Joint stock company was born.
Early companies were purely economic ventures; it was only belatedly realized that an incidental benefit of holding joint stock was that the company's stock could not be seized for the debts of any individual member. The development of company law in Europe was hampered by two notorious “bubbles”(the South Sea Bubble(25) in England and the Tulip Bulb Bubble(26) in Holland) in the 17th century, which set the development of companies in the two leading jurisdictions back by over a century in popular estimation.
But companies, almost inevitably, returned to the forefront of commerce, although in England to circumvent the Bubble Act 1720(27) investors had reverted to trading the stock of unincorporated associations, until it was repealed in 1825. However, the cumbersome process of obtaining Royal charters was simply insufficient to keep up with demand. In England there was a lively trade in the charters of defunct companies. However, procrastination amongst the legislature meant that in the United Kingdom it was not until the Joint Stock Companies Act 1844(28) that the first equivalent of modern companies, formed by registration, appeared. Soon after came the Limited Liability Act 1855(29), which in the event of a company's bankruptcy limited the liability of all shareholders to the amount of capital they had invested. The beginning of modern company law came when the two pieces of legislation were codified under the Joint Stock Companies Act 1856.
That legislation shortly gave way to the railway boom, and from there the numbers of companies formed soared. In the later nineteenth century depression took hold, and just as company numbers had boomed, many began to implode and fall into insolvency. Much strong academic, legislative and judicial opinion was opposed to the notion that businessmen could escape accountability for their role in the failing businesses. The last significant development in the history of companies was the decision of the House of Lords in Salomon v.Salomon & Co. where the House of Lords(30) confirmed the separate legal personality of the companys(31), and that the liabilities of the company were separate and distinct from those of its owners.
In a December 2006 article, The Economist(32) identified the development of the joint stock company as one of the key reasons why Western commerce moved ahead of its rivals in the Middle East in post-renaissance era.
Ⅳ. EXERCISES Ⅳ．练习
1. Answer the following questions.
（1）What are the characteristics of modern company?
（2）Tell the differences between S Corporation and C Corporation？
（3）What does “limited liability” mean in the context of company law? In other words, who have the limited liabilities?
（4）What documents is the “constitution” of a company?
（5）What is your understanding of “pierce the corporate veil”?
2. Translate the following terms into English.
（1）股息
（2）破产
（3）子公司
（4）公众公司
（5）封闭公司
（6）养老基金，退休基金
（7）授权资本
（8）内部管理细则
3. Translate the following terms into Chinese.
（1）corporation limited by shares
（2）company limited by guarantee
（3）non-for-profit corporation
（4）professional corporation
（5）insurable interest
（6）pierce the corporate veil
（7）memorandum of association
（8）articles of incorporation
4. Match the given terms with the proper explanation.
A. dividends
B. non-profit organization
C. liquidation
D. private corporation
E. the articles of incorporation
（1）It is the primary rules governing the management of a corporation in the United States and Canada, and are filed with a state or other regulatory agency.
（2）In law, it is the process by which a company(or part of a company) is brought to an end, and the assets and property of the company redistributed.
（3）It is founded by and composed of private individuals principally for nonpublic purpose, such as manufacturing, banking, and railroad corporations.
（4）It is an organization that does not distribute its surplus funds to owners or shareholders, but instead uses them to help pursue its goals, such as charities, trade unions, trade associations and public arts organizations.
（5）They are payments made by a corporation to its shareholder members. It is the portion of corporate profits paid out to stockholders.
5. Choose the suitable words from the box and fill in the blanks.
shareholders changing property identity distinct form creditor liable for shares
The essence of a corporation is that it has a legal personality distinct from the people who create it. This means that even if the people running the corporation are continuously (1), the corporation itself retains its (2) and the business need not be stopped and restarted with every change in the managers or members of the business. As a limited liability company, not only is the money owned by the corporation regarded as wholly (3) the money owned by those running, but also the members of the corporation are not (4) the debts of the corporation. Members can only be called upon to pay the full price of their (5). After that a (6) must depend on the corporation's money to satisfy his claim. This means that the corporation's (7) is its own and its debts are its responsibility, and the (8) are neither party to the corporation's contracts nor liable for the corporation's debts.
6. Translate the following sentences into Chinese.
（1）If the firm that received a subsidy is a holding company, including a parent company with its own operations, the Department of Commerce will attribute the subsidy to the consolidated sales of the holding company and its subsidiaries.
（2）A shareholder of a corporation has the amount of his liability limited to the amount payable on the shares he holds.
（3）No shareholder of a corporation is personally liable for the debts, obligations or acts of the corporation. As a separate entity, corporations have several distinguishing characteristics including limited liability, easy transferability of shares, and perpetual existence.
（4）US corporations are generally classified into C corporations, S Corporations, close corporations, professional corporations(33) and non-for-profit corporations, and in Britain, there are mainly public and private corporations, corporations limited by shares(34) and corporations limited by guarantee.
（5）Both C Corporation and S Corporation must hold annual meeting of shareholders and meeting minutes must be kept with the corporate records.
（6）The traditional theory is that the shareholders are the owners of the corporation and the role of the directors are to manage the business of the corporation for the benefit of its owners.
（7）The articles of incorporation contain certain important information: the corporation's name, country of registration, objects, amount and division of share capital. The by-laws comprise the regulations governing the running of the corporation. They bind all the members and are valued as “the charter of the corporation”.
（8）An essential step in the establishment of a corporation is that the subscribers agree to acquire some shares in the corporation by writing their names at the bottom of the memorandum: by doing this they become the initial shareholders of the corporation.
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(1) 根据国内的习惯，一般将“company law”翻译为公司法。然而，将“company”一词翻译为“企业”，或者“商事组织”则更为准确。在美国，“company”一词既可以指法人企业，也可以指非法人组织的企业；在英国，“company”一词一般用来指具独立法律人格、享受有限责任的法人组织。Black's Law Dictionary(8th ed)将该词定义为：(1)A corporation—or, less commonly, an association, partnership, or union—that carries on a commercial or industrial enterprise. (2)A corporation, partnership, association, jointstock company, trust, fund, or organized group of persons, whether incorporated or not, and(in an official capacity) any receiver, trustee in bankruptcy, or similar official, or liquidating agent, for any of the foregoing.
(2) creditor：债权人。(1)One to whom a debt is owed; one who gives credit for money or goods. (2)A person or entity with a definite claim against another, especially a claim that is capable of adjustment and liquidation. (3)A person or entity having a claim against the debtor predating the order for relief concerning the debtor.
(3) stakeholder：利益相关者；有时也译为“赌注保管人；争议财产保管人”。(1)A disinterested third party who holds money or property, the right to which is disputed between two or more other parties. (2)A person who has an interest or concern in a business or enterprise, though not necessarily as an owner. (3)One who holds the money or valuables bet by others in a wager.
(4) firm：企业。(1)The title under which one or more persons conduct business jointly. (2)The association by which persons are united for business purposes. Traditionally, this term has referred to a partnership, as opposed to a company. But today it frequently refers to a company.
(5) partnership：合伙，合伙企业。A voluntary association of two or more persons who jointly own and carry on a business for profit. Under the Uniform Partnership Act（《统一合伙企业法》）, a partnership is presumed to exist if the persons agree to share proportionally the business's profits or losses.
(6) trust：信托。(1)The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person(the trustee) at the request of another(the settlor) for the benefit of a third party(the beneficiary). For a trust to be valid, it must involve specific property, reflect the settler's intent, and be created for a lawful purpose. (2)A fiduciary relationship regarding property and charging the person with title to the property with equitable duties to deal with it for another's benefit; the confidence placed in a trustee, together with the trustee's obligations toward the property and the beneficiary. A trust arises as a result of a manifestation of an intention to create it.
(7) pension fund：养老基金，退休基金。A fund from which pensions are paid, accumulated from contributions from employers, employees, or both.
(8) corporation limited by shares：股份有限公司。这是英国法中的称谓，是跟担保有限公司相对立的一种公司形式。这种公司在成立时股东需缴纳一定的注册资本，但不一定要全额缴纳。
(9) company limited by guarantee：担保有限责任公司，亦作a private company limited by guarantee。股东的责任以其已在公司章程中作出的保证在公司清算时向公司承担提供资产的数额为限。该公司通常并不需要营业资本，因为其创立并未出于营利目的，而是为了社会或慈善、宗教、艺术等目的。参见薛波主编：《元照英美法词典》，法律出版社2003年版，第267页。根据《1985年公司法》第1条第2款（Companies Act 1985，s1(2)）的规定，保证有限公司指依据股东的承诺（在公司清算时按照章程载明的固定数额向公司承担缴付责任）而成立的有限公司。这类公司一般是不以盈利为目的的，例如慈善团体或者地方性足球俱乐部。因为没有实际资本的投入，所以这类公司成立时，为了维护其运作，通常需要缴纳一定的费用。参见葛伟军：《英国公司法：原理与判例》，中国法制出版社2007年版，第24—25页。
(10) S公司与C公司是对应的法律概念，它们都是《美国联邦税收法典》S节和C节中依据双重征税与否的标准，就公司形态所作的划分。S corporation, called also “subchapter S corporation”, a small business corporation that is treated for federal tax purposes as a partnership.专业公司一般采用S-Corporation 的付税方式，如此可免交公司的联邦所得税。相比之下，C corporation公司的法律限制较少，但却是双层征税主体。这种税法上的不同待遇实际上是鼓励支持中小企业的法律手段之一。
(11) close corporation：封闭公司。A close corporation is a corporation whose shares are held by a small number of individuals(as management) and not freely or publicly traded.
(12) public corporation：公众公司，指股份可以公开流通的公司。A public corporation is also called a public held corporation, a business corporation whose stocks are publicly traded. 与之相对的是private corporation：私人公司。A corporation founded by and composed of private individuals principally for nonpublic purpose, such as manufacturing, banking, and railroad corporations.
(13) professional corporation：专业公司，在美国用来指那些提供专业服务的公司。A professional corporation is a corporation organized by one or more licensed individuals(as a doctor, accountant or lawyer) to provide professional services and obtain tax advantages.
(15) insolvent：无清偿能力的；破产的。也可指在普通交易中停止支付债务的人，或在债务到期时无力支付的人，或根据《联邦破产法》（Federal Bankruptcy Act）被确立为无力支付的人。(Of a debtor) having liabilities that exceed the value of assets; having stopped paying debts in the ordinary course of business or being unable to pay them as they fall due.
(17) insurance policy：保单；保险单。亦作“policy of insurance”或者“contract of insurance”，是指载明保险人以保险费为对价，负责赔偿被保险人所可能遭受损失的书面文契。(1)A contract of insurance. (2)A document detailing such a contract.
(18) insurable interest：可保利益。被保险人具有的、因承保风险发生而导致损失的利害关系。被保险人对保险标的物必须具有真正的金钱上的利益，才有权对标的物或人进行保险。保险法中自古有“无可保利益则无保险”的法谚，可见其在保险法中的重要地位。A legal interest in another person's life or health or in the protection of property from injury, loss, destruction, or pecuniary damage. To take out an insurance policy, the purchaser or the potential insured's beneficiary must have an insurable interest. If a policy does not have an insurable interest as its basis, it will usu. be considered a form of wagering and thus be held unenforceable.
(19) subsidiary：子公司。Subordinate; under another's control.
(20) pierce the corporate veil：揭开公司面纱；刺破公司面纱。根据该原则，如果法庭认为成立公司的目的在于利用公司作为手段，从事妨碍社会利益、欺诈或逃避个人责任的活动，法院将不考虑公司的法人资格，直接追究股东或其他行为人的民事或刑事责任。也就是说，法院有权要求公司的有控制权的股东及主要经营者对公司债务承担个人责任(Personal Liability)。但是具体而言，应如何判断公司的责任是否应该，以及何时转移到股东个人身上，是一个相当复杂的事实问题。
(21) bankruptcy：破产。可指当事人无力偿还到期债务的状况，也可指已依破产法被宣告破产的事实，或者已依破产法被宣告破产的当事人的地位。A statutory procedure by which a(usu. insolvent) debtor obtains financial relief and undergoes a judicially supervised reorganization or liquidation of the debtor's assets for the benefit of creditors.
(22) authorized share capital：授权资本。亦作“authorized capital”，或者“nominal capital（名义资本）”。Authorized share capital is the maximum amount of share capital that the company is authorized by its constitutional documents to issue to shareholders. Part of the authorized capital can(and frequently does) remain unissued.
(23) guild：基尔特，同业公会，行会。一种为共同目的、相会援助而自愿组成的协会、行会或者同业公会。An association of persons of the same trade or pursuits, formed to protect mutual interests and maintain standards.
(24) Royal charters：皇家特许状。指君主根据其皇室特权或者特别的法定权力所颁布特许状，比如设立公司等。A royal charter is a formal document issued by a monarch as letters patent, granting a right or power to an individual or a body corporate.
(25) South Sea Bubble：“南海泡沫”。英国在1720年春天到秋天之间发生的一次经济泡沫。
(31) separate legal personality of the company：公司的独立法律人格。
(32) Economist：此处是指《经济学人》杂志。
(33) professional corporation：专业公司。在美国用来指那些提供专业服务的公司。A professional corporation is a corporation organized by one or more licensed individuals(as a doctor, accountant or lawyer) to provide professional services and obtain tax advantages.
(34) corporation limited by shares：股份有限公司。这是英国法中的称谓，是跟担保有限公司相对立的一种公司形式。这种公司在成立时股东需缴纳一定的注册资本，但不一定要全额缴纳。