Establishment Of The Company's Legal Status

The "pre-incorporation company" is the permanent issue of theacademic circulation of company law .Actually, the pre-incorporationcompany, as the particular legal subject, often participates incommercial and running business. Since long ago, legal disputes in thecorporation establish stage, are missing from adjustment by existinglaw, only supplied from case law and theories. Legislation lags behindthe judicial practice. Comparing to the original CorporationLaw ,2006's new Corporation Law has not changed in thepre-incorporation company respect .New Corporation Law has notstipulate on pre-incorporation company's concept. And not given anyspecial stipulation on the legal status, legal liability of thepre-incorporation company. Academic circles have a heated argumenton the legal status, legal liability of the pre-incorporation company.There mainly have Non-right ability theory, partnership theory,compromise theory, Non-corporation theory, the same-body theory, therevised same-body theory, established corporation theory, and so on.Through comparative analysis, real diagnosis analysis, and apply theoryto reality, we think that a pre-incorporation company is a structuralbody with no corporate capacity .It starts with drafting the articles ofassociation and offer to buy above one share of capital stock and endsup with the incorporation registration or finish publicizement afterclearing an account according to law. Aiming at acquire legal personqualification, but has not acquire legal person qualification. It is aspecial organization shape with transient characteristic. The company'sentity is not emerging suddenly when it registered on the book. It'sdevelopment is gradually. In the corporation set up stage, aim atestablishing company or running business, the pre-incorporation company would carry on a series of acts conducted in accordance withthe terms of the law or economy. It also means the activity of thepre-incorporation company including the necessary setting up activitiesand the preparatory activities for operation. It would get in touch withsociety. The pre-incorporation company is a Not-corporation. It hasitself characterizes .for example; it has an organization entity that is assame as the company. It has a foundation of person and thing. Apre-incorporation company ,with a view of setting up a company ,hasrelevant capacity for rights and activities, and is entitled by law withrelevant civil rights and civil liabilities, but it is not eligible to bearcivil liabilities independently .the pre-incorporation has a ability tomean, to act ,and to bear limited responsibility. The properties of thepre-incorporation company determine its legal relations with thepromoter, the incorporated company and the third parties. It shouldaccept the revised same-body theory in legislation according to theproblem how to deal with the legal responsibility brought bypre-incorporation, because it has not eligible to bear civil liabilitiesindependently. The legal rights and obligations incurred in theper-incorporation activities shall be transferred to the incorporatedcompany when the company is incorporated. The preparatory activitiesbefore formal operation will also be supervised by the incorporatedcompany firstly .And the incorporated company can choose to bear it ornot. The promoter should bear the legal liabilities if the companyrefuses to accept it. If the company fails to be incorporated, it shouldclear an account and return the shares and the interest to the shareholder.And the legal liabilities incurred in the pre-incorporation activitiesshall be born by the promoter. And then the pre-incorporation companyperishes of itself. The civil liabilities incurred in the pre-incorporation activities shall be born by either the incorporated company or thepromoter according to various circumstances. It is necessary andpracticable to regulate pre-incorporation companies.