Analysis on the responsibility of sponsors to sign contracts with foreign countries in the establishment of lawyer bill company

The responsibility of sponsors to sign contracts with foreign countries in the process of company establishment lies in the legal relationship among the company, sponsors, contract counterparts and company subjects. In order to set up a company, the promoters sign contracts with foreign countries. Who will bear the contract responsibility? The complexity of this problem lies in the independent and interrelated relationship among the company, the sponsor and the company, and who will bear the contract responsibility can only be analyzed in specific cases.

In this regard, Article 2 of Interpretation III of the Company Law stipulates: "If the sponsor signs a contract for the establishment of a company in his own name, the people's court shall support it if the counterparty of the contract requests the sponsor to bear the contract liability; After the establishment of the company, the people's court shall support the request of the opposite party to the contract to the company to assume the contractual responsibilities. " Article 75 of the Civil Law stipulates: "The legal consequences of the civil activities carried out by the promoters for the establishment of a legal person shall be borne by the legal person; If a legal person is not established, the legal consequences shall be borne by the founder. Where there are more than two promoters, they shall enjoy joint creditor's rights and bear joint debts. The third party has the right to choose to request the legal person or promoter to bear the civil liability arising from the establishment of a legal person to engage in civil activities in its own name. "

The above provisions seem to solve the problem that the author wants to discuss. In fact, in judicial practice, due to the application of law, this point is still controversial. Here, the author still uses a judicial precedent to discuss this issue. For example, (20 13) Minti Zi No.212 discussed this issue. As stated in the judgment, the primary issue in discussing contract liability is the effectiveness of the contract. Therefore, the parties to the construction engineering design contract are Hong Kong Hang Seng Company and Ye Wei Shandong Branch. This contract is the true intention of both parties, and does not violate the mandatory provisions of China laws and administrative regulations. It is legal and valid and legally binding on both parties.

In the civil judgment of (20 13) Min Tizi No.212, although the design entrusted by Hang Seng Company in Hong Kong did not indicate that the contractual debts would be borne by the established Hang Seng Hotel Company, there was a corresponding provision in Judicial Interpretation III of the Company Law that the promoters signed the contract for the establishment of the company in their own name. Therefore, according to the provisions of Article 2 of Judicial Interpretation III of the Company Law and the facts of this case, it is known that Hang Seng Hotel Company obtained the Business License of Enterprise as a Legal Person on February 28, 2008, which has been legally established. Therefore, this case should apply this provision to determine the legal consequences of Hang Seng Company's actions in Hong Kong. According to the above provisions, if the promoters sign a contract for the establishment of a company in their own name, only when the established company expressly or implicitly agrees to become a party to the contract and actually enjoys contractual rights or undertakes contractual obligations will the legal consequences of the established company becoming a party to the contract instead of the promoters occur. At this time, the counterpart of the contract has the right to choose the sponsor of the contract or the company established as the party to the contract.

The above provisions embody the strict principle of contract relativity, and the contract can only be bound by it with the consent of the company, in order to prevent the promoters from abusing their powers to harm the interests of the company and other promoters during the establishment of the company. Similarly, if the promoters sign a contract for the establishment of a company in their own name, and the company fails to be established for some reason, all promoters will only bear joint and several liability if they explicitly or implicitly approve the contract. Therefore, the core issue of this case is whether Hang Seng Hotel Company expressly or implicitly agrees to be bound by the design contract of the construction project involved. Only on the premise of confirming that Hang Seng Hotel Company agrees to be bound by the contract, it is necessary to analyze the liability that Lu Tong Company, as a shareholder of Hang Seng Hotel Company, bears to creditors due to insufficient capital contribution.

In this case, Hang Seng Hotel Company did not carry out business activities after its establishment, neither explicitly confirmed the payment of the design fee, nor actually used the design results or fulfilled the contractual obligations. The collection of design results by the directors appointed by Hang Seng Hotel Company in Hong Kong is not enough to constitute the implied consent of Hang Seng Hotel Company to the construction project design contract. That is to say, only after the registered capital of Hang Seng Company in Hong Kong is in place, the construction engineering design contract will go through the contract approval and review procedures of both sponsors to decide whether Hang Seng Hotel Company should bear the contract debts. Before the contract review, Hang Seng Company in Hong Kong should bear the contract responsibilities. Since Hong Kong Hang Seng Company did not contribute to Hang Seng Hotel Company, the design contract of construction project signed by it has never been recognized by both sponsors.

It can be seen that (20 13) civil judgment No.212 is actually an analysis and choice of the application of law stipulated in Article 2 of Judicial Interpretation III of Company Law. In this regard, (20 15) Su Shen sanshenminzi No.00089 civil ruling holds that this article gives the opposite party of the contract the right to choose the object of claim, that is, the opposite party of the contract has the right to ask the sponsor or the company to bear the contract responsibility. At the same time, this article also sets certain conditions for the counterpart to choose to claim rights from the company, that is, only after the company expresses its willingness to inherit the rights and obligations of the contract can the counterpart request the company to undertake the contract responsibilities. The above judicial interpretation not only implements the principle of privity of contract, but also sets conditions for the relative party to choose to request the company to take responsibility, so as to prevent the promoters and their creditors from abusing their rights to harm the interests of the company and safeguard the legitimate property rights and interests of the company from being infringed.

According to the above analysis, it can give us a lot of enlightenment. In order to avoid such problems and safeguard our own rights and interests, we can make it clear that the sponsors sign the company establishment contract when signing the contract, and make it clear whether the contract responsibility will be borne by the sponsors or the company after the company is established. For the other party to the contract, after the establishment of the company, the sponsor and the company may be required to sign a tripartite agreement to reconfirm the contractual responsibilities. Of course, according to the relevant cases retrieved by the author, we can draw the following conclusions:

One of the conclusions is that if the promoters sign a contract to set up a company in their own name, the legal consequences of setting up a company to replace the promoters as a party to the contract will only occur if the company has agreed to become a party to the contract in an express or implied way and actually enjoys contractual rights or undertakes contractual obligations. The second conclusion is that if the promoters sign a contract to establish a company in their own name, and the company fails to be established for some reason, all promoters will only bear joint and several liabilities if they explicitly or implicitly approve the contract.

The third conclusion is that the counterparty of the contract has the right to ask the sponsor or the company to bear the contract responsibility. However, the other party's choice to claim rights from the company requires certain conditions, that is, only after the company expresses its willingness to inherit the rights and obligations of the contract can the other party request the company to undertake the contract responsibility. Fourth, according to the principle of privity of contract, by setting the conditions for the relative party to choose to request the company to take responsibility, the promoters and their creditors can be prevented from abusing their rights to harm the interests of the company and safeguard the legitimate property rights and interests of the company from being infringed.