英国2006公司法

英国公司法The Companies Act 2006The Companies Act 2006 (c 46) is an Act of the Parliament of the United Kingdom which forms the primary source of UK company law. It had the distinction of being the longest in British Parliamentary history: with 1,300 sections and covering nearly 700 pages, and containing 16 schedules (The list of contents is 59 pages long) but it has since been superseded, in that respect, by the Corporation Tax Act 2009.The Act was brought into force in stages, with the final provision being commenced on 1 October 2009. It superseded the Companies Act 1985.The Act provides a comprehensive code of company law for the United Kingdom, and made changes to almost every facet of the law in relation to companies. The key provisions are:•the Act codifies certain existing common law principles, such as those relating to directors' duties.•it implements the European Union's Takeover and Transparency Obligations Directives.•it introduces various new provisions for private and public companies.•it applies a single company law regime across the United Kingdom, replacing the two separate (if identical) systems for Great Britain and Northern Ireland.•it otherwise amends or restates almost all of the Companies Act 1985 to varying degrees.[2]The Bill for the Act was first introduced to Parliament as "the Company Law Reform Bill" and was intended to make wide-ranging amendments to existing statutes. Lobbying from directors and the legal profession ensured that the Bill was changed into a consolidating Act, avoiding the need for cross-referencing between numerous statutes.The reception of the Act by the legal professions in the United Kingdom has been slightly lukewarm. Concerns have been expressed that too much detail has been inserted to seek to cover every eventuality.[3] Whereas a complete overhaul of company law was promised, the Act seems to leave much of the existing structure in place, and to simplify certain aspectsonly at the margins. In other areas, it is said to have complicated and obfuscated previously settled law and may make doing business more difficult for those operating small companies.Contents[hide]• 1 Implementation• 2 Directors• 3 General provisions• 4 Private companies• 5 Public and listed companies• 6 Contents•7 See also•8 Notes•9 References•10 External links[edit] ImplementationA small portion of the Act came into effect on Royal Assent in November 2006. The first and second Commencement Orders then brought further provisions into force in January 2007 and April 2007. The implementation timetable for the remainder of the Act was announced in February 2007, by Margaret Hodge, Minister for Industry and the Regions. The third and fourth Commencement Orders brought a further tranche of provisions into force in October 2007, and the fifth, sixth and seventh in April and October 2008. The eighth commencement order, made in November 2008, brought the remainder of the Act into force with effect from October 2009.The staggered timetable was intended to give companies sufficient time to prepare for the new regime under the Act, rather than implementing all 1,300 sections of the Act on one day.Another reason for the staggered implementation is that, despite the Act's size, a great many sections provide for subsidiary legislation to be brought in by Secretary of State, which has taken time to draft.Implementation of the Act is the responsibility of the Department for Business, Innovation and Skills.[edit] DirectorsMain article: Board of directorsThe Act replaced and codified the principal common law and equitable duties of directors, but it does not purport to provide an exhaustive statement of their duties, and so it is likely that the common law duties survive in a reduced form. Traditional common law notions of corporate benefit have been swept away, and the new emphasis is on corporate social responsibility. The seven codified duties are as follows:1.S171 to act within their powers - to abide by the terms of thecompany's memorandum and articles of association and decisions made by the shareholders;2.S172 to promote the success of the company- directors must continueto act in a way that benefits the shareholders as a whole, but there is now an additional list of non-exhaustive factors to which the directors must have regard. This was one of the most controversial aspects of the new legislation at the drafting stage. These factors are:1.the long term consequences of decisions2.the interests of employees3.the need to foster the company's business relationships withsuppliers, customers and others4.the impact on the community and the environment5.the desire to maintain a reputation for high standards ofbusiness conduct6.the need to act fairly as between members3.S173 to exercise independent judgment - directors must not fettertheir discretion to act, other than pursuant to an agreement entered into by the company or in a way authorised by the company's articles4.S174 to exercise reasonable care, skill and diligence - this mustbe exercised to the standard expected of1.someone with the general knowledge, skill and experiencereasonably expected of a person carrying out the functionsof the director (the objective test) and also2.the actual knowledge, skill and experience of that particulardirector (the subjective test)5.S175 to avoid conflicts of interest- methods for authorising suchconflicts by either board or shareholder approval are also to be introduced6.S176 not to accept benefits from third parties7.S177 to declare an interest in a proposed transaction with thecompany- there are to be carve outs for matters that are not likelyto give rise to a conflict of interest, or of which the directors are already aware. There will be an additional statutoryobligations to declare interests in relation to existingtransactions.Although the changes to directors' duties were the most widely publicised (and controversial) feature of the legislation, the Act also affects directors in various other ways:•S239 The shareholders' ability to ratify any conduct of a director (including breach of duty, negligence, default or breach of trust) is regulated by the statute, although S 239.7 leaves the door open for common law principles, previously the only guide on this. Under the Act, directors who are also shareholders, or persons connected to them, are not entitled to vote in relation to any ratification resolution concerning their actions.•Existing restrictions on companies indemnifying directors against certain liabilities were relaxed to permit indemnities by group companies to directors of corporate trustees and occupationalpension schemes.•SS261-3 The Act gave shareholders a statutory right to pursue claims against the directors for misfeasance on behalf of a company (a derivative action), although the shareholders need the consent of the court to proceed with such a claim.•Certain transactions between the company and its directors which were previously prohibited by law have become lawful subject to the approval of shareholders (for example, loans from the company to its directors)•The Act requires at least one director on the board of the company to be a natural person, although corporate directors are stillpermitted.•The current age restriction of 70 for directors of public companies has been abolished. A new minimum age of 16 has been introduced for all directors who are natural persons (S157).•Directors will have the option of providing Companies House with an address for service, which will in future enable their homeaddresses to be kept on a separate register to which access will be restricted.[edit] General provisionsThe Act contains various provisions which affect all companies irrespective of their status:•Company formation- the procedure for incorporating companies will be modernised to facilitate incorporation over the Internet. It will become possible for a single person to form a public company.•Constitutional documents- a company's articles of association will become its main constitutional document, and the company'smemorandum will be treated as part of its articles. New modelarticles for private companies to be made under the Act are intended to reflect better the way that small companies operate, and will replace the existing Table A. Existing companies will be permitted to adopt the new model articles in whole or in part.•Corporate capacity - under the new Act a company's capacity will be unlimited unless its articles specifically provide otherwise, thus greatly reducing the applicability of the ultra vires doctrine to corporate law and removing the need for an excessively longobjects clause in the Memorandum of Association.•Execution of documents - Formalities for execution as a deed are to be further revised, so that a single director can execute adocument as a deed on behalf of the company by a simple signature in the presence of a witness.•Share capital- the requirement for an authorised share capital will be abolished. Companies will be able to redenominate their share capital from one currency to another without an order of the court.•Distributions in kind - The Act addresses the current uncertainty in the law in relation to the transfer of non-cash assets by acompany to a shareholder, and whether this should be treated as a distribution.[4]•Shareholder meetings - The Act enables shareholder meetings to be held more quickly. Special resolutions now require only 14 days' notice unless proposed at an AGM.•Shareholder communications - The Act made it easier for companies to communicate electronically (e.g. by email or by website) with their shareholders by express agreement (which agreement can be obtained under the articles, or by the shareholder failing toindicate that they do not wish to communicate via the website, as well as by more conventional methods).•Auditor's liability - auditors are now permitted to limit their liability for claims in negligence, breach of trust or breach of duty so long as:o the shareholders have approved the limitation in advance.o the court considers the limitation of liability to be 'fair and reasonable' [5]This change was made after intensive lobbying by the accounting profession in the United Kingdom.•Company Names Adjudicator- Section 69 of the Act provides for the appointment of a Company Names Adjudicator. A Company NamesTribunal was established on 1 October 2008 through which the Company Names Adjudicator will administer his powers via the UKIntellectual Property Office under the tribunal. Section 69 hasexpanded the grounds under which any person can object to aconflicting company name registration under the Act.[edit] Private companiesMain article: Private company limited by sharesOne of the more touted aspects of the new legislation was the simplification of the corporate regime for small privately held companies.A number of the changes brought about by the Act apply only to private companies. Significant changes include:•Company secretaries- a private company no longer needs to appointa company secretary, but may do so if it wishes.•Shareholders' written resolutions- the requirement for unanimity in shareholders' written resolutions was abolished, and therequired majority is similar to that for shareholder meetings - a simple majority of the eligible shares for ordinary resolutions, or 75% for special resolutions.•Abolition of AGMs- private companies are no longer required to hold Annual General Meetings, although they can elect to provide for them in their articles if they wish.•Short notice of meetings - private companies can convene meetings at short notice where consent is given by holders of 90% by nominal value of shares carrying the right to vote.•Allotment of shares - where private companies have only one class of shares, the directors will have unlimited authority to allotshares unless the articles otherwise provide.•Financial assistance- the Act abolishes the prohibition on private companies providing financial assistance for the purchase of their own shares, and the related "whitewash" exemption procedure.•Reduction of share capital - private companies will be able to reduce their share capital without the need to obtain a court order.•Filing of accounts- the period in which accounts must be filed has been reduced from 10 months to 9 months from the financial year end. [edit] Public and listed companiesMain article: Public limited companyThe Act also seeks to promote greater shareholder involvement, and a number of new requirements are introduced for public companies, some of the provisions of which only apply to companies whose shares are listed on the main board of the London Stock Exchange(but, importantly, not to companies whose shares are listed on AIM).•Business review - the Act imposes additional requirements for companies listed on the main board of the LSE in their annual report and accounts. These now include:1.main trends and factors likely to affect future development,performance and position of the business;rmation on environmental matters, employees and social issues;andrmation on contractual and other arrangements essential to thecompany's business.•AGM and accounts- main list companies will be required to hold their AGM and file accounts within 6 months of the end of the financial year. They will also be required to:1.publish their annual report and accounts on their website;2.disclose results of polled votes at general meetings on theirwebsite;3.give certain minority shareholders the right to require independentscrutiny of any polled vote, the results of which must be published on the company's website.•Political donations and expenditure - the Act contains simplification and clarification of the existing provisionsrequiring shareholder approval for political donations andexpenditure, and clarifies a number of grey areas (such asexpenditure relating to trade unions).•Enfranchising indirect investors - nominee shareholders of main list companies will be able to nominate persons on behalf of whom they hold shares to receive copies of company communications and annual reports and accounts. All companies will also be able to include provisions in their articles to identify some other party to exercise additional rights of the shareholder. This is to address the concern that shares in publicly listed companies are frequently held in an intermediary's name, which makes it more difficult for the beneficial owners of the shares to exercise their rights as shareholder.•Voting by institutions - the Act empowers the government to introduce regulations in the future that would require institutions to disclose how they have voted. The government has indicated it will only introduce such regulations after full consultation and if a voluntary disclosure scheme does not work.•Paperless share transfers - the Act gives the government power to make regulations requiring (as well as permitting) paper-freeholding and transferring of shares in main list companies. Some law firms[who?] have expressed reservations as to how paper-free holding and transfers would work in practice.•Transparency Obligations Directive- the Act brings into force the European Directive imposing obligations on main list companies in relation to financial reporting, disclosure of major acquisitions or disposals of its shares and the dissemination of information about the company to its shareholders and the public generally. The Act gives the Financial Services Authority power to make rules to implement the requirements of the Directive, which would beimplemented by way of changes to the existing Listing Rules and Disclosure Rules. The Act also introduces a statutory compensation scheme for misleading or inaccurate statements in reports.•Takeovers - the EU Takeover Directive was implemented by interim regulations in the United Kingdom in May 2006. The Act extends the statutory basis for the regulations in relation to certain matters, such as the statutory footing of the Takeover Panel, and the City Code on Takeovers and Mergers. It also extended the "minority sweep up" provisions which were introduced by an amendment to theCompanies Act 1985, and addresses certain practical problems which had arisen in relation to their operation.[edit] Contents•Part 1 General introductory provisions, ss 1-6•Part 2 Company formation, ss 7-16•Part 3 A company's constitution, ss 17-38•Part 4 A company's capacity and related matters, ss 39-52•Part 5 A company's name, ss 53-85•Part 6 A company's registered office, ss 86-88•Part 7 Re-registration as a means of altering a company's status, ss 89-111•Part 8 A company's members, ss 112-144•Part 9 Exercise of members' rights, ss 145-153•Part 10 A company's directors, ss 154-259•Part 11 Derivative claims and proceedings by members, ss 260-269•Part 12 Company secretaries, ss 270-280•Part 13 Resolutions and meetings, ss 281-361•Part 14 Control of political donations and expenditure, ss 362-379 •Part 15 Accounts and reports, ss 380-474•Part 16 Audit, ss 475-539•Part 17 A company's share capital, ss 540-657•Part 18 Acquisition by limited company of its own shares, ss 658-737 •Part 19 Debentures, ss 738-754•Part 20 Private and public companies, ss 755-767•Part 21 Certification and transfer of securities, ss 768-790 •Part 22 Information about interests in a company's shares, ss 791-828•Part 23 Distributions, 829-853•Part 24 A company's annual return, ss 854-859•Part 25 Company charges, ss 860-894•Part 26 Arrangements and reconstructions, ss 895-901•Part 27 Mergers and divisions of public companies, ss 902-941 •Part 28 Takeovers etc., ss 942-992•Part 29 Fraudulent trading, s 993•Part 30 Protection of members against unfair prejudice, ss 994-999 •Part 31 Dissolution and restoration to the register, ss 1000-1035 •Part 32 Company investigations: amendments, ss 1035-1039•Part 33 UK companies not formed under companies legislation, ss 1040-1043•Part 34 Overseas companies, ss 1044-1059•Part 35 The registrar of companies, ss 1060•Part 36 Offences under the Companies Acts, ss 1121-1133•Part 37 Companies: supplementary provisions, ss 1134-1157•Part 38 Companies: interpretation, ss 1158-1174•Part 39 Companies: minor amendments, ss 1175-1181•Part 40 Company directors: foreign disqualification etc., ss 1182-1191•Part 41 Business names, ss 1192-1208•Part 42 Statutory auditors, ss 1209-1264•Part 43 Transparency obligations and related matters, ss 1265-1273 •Part 44 Miscellaneous provisions, ss 1274-1283•Part 45 Northern Ireland ss 1284-1287•Part 46 General and supplementary provisions, ss 1288-1292•Part 47 Final provisions, ss 1298-1300•Schedules 1-16[edit] See also•UK company law•US corporate law•German company law•European company law•Companies Act•Shareholder Rights Directive2007/36/EC。

第1篇第一章总则第一条本章程依据《英国公司法》（Companies Act 2006）制定，适用于[公司名称]（以下简称“公司”或“本公司”），以规范公司的组织、管理和运营。

第二条公司为依照英国法律注册成立的[股份有限公司/有限责任公司]，其注册地为[注册地址]。

第三条公司的宗旨是：[公司宗旨描述，如提供某种产品或服务，追求某种社会或经济目标等]。

第二章股东第四条公司的股东为[公司名称]，其注册资本为[注册资本金额]英镑。

第五条股东的权利：1. 参加股东大会，有表决权；2. 依照公司章程和英国法律，转让或出售其持有的股份；3. 收取股息；4. 在公司清算时，依照其持股比例，分得剩余财产；5. 查阅公司章程、股东名册、董事会会议记录和财务会计报告；6. 法律、法规和公司章程规定的其他权利。

第六条股东的义务：1. 遵守公司章程；2. 按时足额缴纳股款；3. 不得滥用股东权利损害公司或其他股东的利益；4. 法律、法规和公司章程规定的其他义务。

第三章股东大会第七条股东大会是公司的最高权力机构，由全体股东组成。

第八条股东大会的职权：1. 审议和批准公司的年度报告和财务会计报告；2. 选举和罢免董事；3. 修改公司章程；4. 决定公司的合并、分立、解散和清算；5. 决定公司增资或减资；6. 决定公司发行新股；7. 决定公司利润的分配；8. 决定公司重要事项；9. 法律、法规和公司章程规定的其他职权。

第九条股东大会分为年度股东大会和临时股东大会。

第十条年度股东大会应当于每个财政年度结束后六个月内召开。

第十一条临时股东大会的召开，由董事会或持有公司10%以上股份的股东提议。

第十二条股东大会应当以书面形式通知全体股东，通知中应载明会议的时间、地点、议程和股东应准备的资料。

第四章董事会第十三条董事会由[董事会人数]名董事组成，由股东大会选举产生。

第十四条董事会的职权：1. 指导公司的经营和管理；2. 执行股东大会的决议；3. 选举和罢免董事长；4. 制定公司的发展战略、经营计划和投资方案；5. 决定公司的重大事项；6. 任命和解除公司高级管理人员；7. 制定公司内部管理制度；8. 法律、法规和公司章程规定的其他职权。

硕士学位论文英国公司法的历史演进The Historical Revolution of The England Company Act作者姓名：周连斌指导教师：杨丽英西南政法大学Southwest University of Political Science and Law内容摘要公司不仅创造了当今世界的绝大部分财富，而且也成为人们最经常用以经营商务的工具。

而作为规范公司的组织与行为的公司法对公司的重要性不言而喻。

有限责任公司是英国最具创造性的发明。

英国公司法的产生可以追溯到19世纪。

1844年英国的《合作股份公司法》是世界上第一部认可公司独立法人地位的公司法。

1855年的《有限责任法》和1856年经修改的《合作股份公司法》奠定了现代公司法的基础,在根本上确立了有限责任和公司独立人格的关键原则。

从此企业家能够开发有风险的产业,投资人能够聚集各种资源,金融家能够投资于缺乏资金的发明人等等。

同时,人们也逐渐认识到有限责任公司本身所赋与的有限责任和独立人格的特性已被董事会成员或公司的执行官滥用,由此,针对公司创设和运作规则等方面的法律应运而生。

而这些法律的目的主要是为在市场上吸收更多的资本金并设法营造和鼓励更多经济活动。

19世纪和20世纪,英国公司法历经多次修改,每一次修改都是在高层次上将当时的需求纳入立法中。

1972年英国加入了欧洲经济共同体,因此其立法不得不融合和执行欧共体的相应法律规则。

这些变化最终在1985年的公司法中得到整合和反映,在此基础上,1989年颁布的公司法作了进一步的修改,核心内容基本未变。

自19世纪以来,在英国公司法的发展过程中积淀了太多法令和案例。

随着社会环境的发展和变化,英国公司法相应作了不断的调整,重新评估并减轻法规的束缚,从而达到“有所为”的法律构架并进而夯实了英国的法律环境。

本文从公司的历史起源谈起，进而引出英国公司法，阐述其历史及其演进过程，通过对英国公司立法的历史进行梳理，揭示了其发展的规律及发展的趋势。

英国公司法（Company Law）第一章注册公司的法律特征Company Law: Fundamental Principles, （2nd ed.） Stephen Griffin LLB, PITMAN Publishing, 1996THE LEGAL CHARACTERISTICS OF A REGISTERED COMPANY本章主要讲述了注册公司的基本法律特征及其发展的历史。

公司在一定意义上可以被看作是一个虚构的实体，它只不过是其管理者和员工按照团体模式经营的一种方式或手段。

依照大陆法系的分类，这种观点似乎可以被看作是法人拟制说。

但是在法律上，按照公司法的规定注册的公司，这种虚构的本质在这种程度上被忽视了，从公司成立之日起，它就是一个公司实体。

正因为如此，注册公司是一个独立的法律主体，它像一个自然人那样享有权利和承担义务。

这是公司的第一个重要的特征。

除此之外，大量的公司都具有有限责任的特点。

公司的有限责任分为股份的有限和保证的有限。

（除有特别说明，本书将主要讲股份的有限。

）有限责任是指公司股东一旦（以股票的名义价值）完全出资认购了所持有的股份，他就不再对公司的债务承担任何责任。

公司的成立导致了公司和其股东地位的分离。

因此，公司的存在不再依赖于其成员的存在于否。

成立这样一个公司最大的好处是股东的有限责任，但最大的缺点是商业隐私的缺失。

与合伙不同，注册公司必须满足许多关于披露信息的要求。

公司的概念产生于19世纪中期，但在此之前，就已存在现代公司的前身。

首先产生的是特许公司。

从17世纪起，随着世界船舶贸易的发展，特许的股份公司产生了。

股份公司是一个通过王室特许产生的，有着复杂形式的合伙企业。

特许状通常授予其在特定贸易中的垄断权。

这种公司虽然也具有独立的法律身份，但是除非特许状有特殊规定，这种企业的成员没有任何形式的有限责任。

随着股份公司的发展，股票交易也日益增多。

到18世纪前期，股票成为一些公司投机的手段。

英国公司法（CompanyLaw）第一章注册公司的法律特征作者：明月孤岑文章来源：竹月斋发表于2006年10月12日阅读1685人次推荐级别：☆Company Law: Fundamental Principles, （2nd ed.） Stephen Griffin LLB, PITMAN Publishing, 1996THE LEGAL CHARACTERISTICS OF A REGISTERED COMPANY本章主要讲述了注册公司的基本法律特征及其发展的历史。

公司在一定意义上可以被看作是一个虚构的实体，它只不过是其管理者和员工按照团体模式经营的一种方式或手段。

依照大陆法系的分类，这种观点似乎可以被看作是法人拟制说。

但是在法律上，按照公司法的规定注册的公司，这种虚构的本质在这种程度上被忽视了，从公司成立之日起，它就是一个公司实体。

正因为如此，注册公司是一个独立的法律主体，它像一个自然人那样享有权利和承担义务。

这是公司的第一个重要的特征。

除此之外，大量的公司都具有有限责任的特点。

公司的有限责任分为股份的有限和保证的有限。

（除有特别说明，本书将主要讲股份的有限。

）有限责任是指公司股东一旦（以股票的名义价值）完全出资认购了所持有的股份，他就不再对公司的债务承担任何责任。

公司的成立导致了公司和其股东地位的分离。

因此，公司的存在不再依赖于其成员的存在于否。

成立这样一个公司最大的好处是股东的有限责任，但最大的缺点是商业隐私的缺失。

与合伙不同，注册公司必须满足许多关于披露信息的要求。

公司的概念产生于19世纪中期，但在此之前，就已存在现代公司的前身。

首先产生的是特许公司。

从17世纪起，随着世界船舶贸易的发展，特许的股份公司产生了。

股份公司是一个通过王室特许产生的，有着复杂形式的合伙企业。

特许状通常授予其在特定贸易中的垄断权。

这种公司虽然也具有独立的法律身份，但是除非特许状有特殊规定，这种企业的成员没有任何形式的有限责任。

英国公司法不公平损害制度沿革作者：王琳来源：《法制与社会》2010年第10期摘要“资本多数决”规则为中心的公司治理结构是基础,尽管它对于维护公司独立法人资格、促进公司决策效率的提升,但是无法避免陷入“多数人暴政”的制度危险,也正是多数股东(或控股股东)所造成的少数派股东的一种侵害。

英国成文公司法将股东因不公平损害行为受到的侵害作为一种救济类型,由于其避免了“福斯规则”下的繁琐举证而广受少数股东的青睐。

作为替代衡平和正义解散公司的制度,压制行为存在程序上的障碍与实体上的狭隘等缺陷。

关键词英国公司法压制不公平损害中图分类号:D9516 文献标识码:A 文章编号:1009-0592(2010)04-028-02中小股东权利遭受侵害在近现代公司运行中普遍存在。

而由“资本多数决原则”支撑的公司决策基础及其“公司法人独立人格”制度,使人们不免担心对中小股东的保护会造成对公司事务过度的干涉,危及法人独立人格,影响公司的决策和运营效率。

伴随着现代公司制度下所有权与经营权的分离,股东组成日益分散。

股东会支配地位的淡化使各国立法纷纷致力于探索制定相关规定以保护中小股东权益。

其中尤其以英国成文公司法为典型。

伴随着英国成文法改革的进程,不公平损害制度也历经了巨大的变化。

不公平损害制度日益成为广受中小股东欢迎的救济制度。

一、英国1948年公司法:“压制行为”(一)衡平与正义解散公司在英国1948年公司法出台以前,除非少数股东能够证明存在“福斯规则”的例外情形,股东不能从法院那里获得救济以阻止多数股东在执行公司事务过程中对其构成的不适当、不公平和压制行为。

对于多数股东实施的压制行为,仅在有限的情形下,少数股东可以获得法院以“解散公司”形式的救济。

①这类有限的情形通常是法院基于衡平法上的“公平和正义”的基础解散公司。

且不论这种救济措施少有发挥救济功能,其解散公司这种单一的救济手段,对股东、债权人、雇工等伤害巨大,而且少数股东也无法从公司解散中获益,因为公司资产可能会严重贬值,解散公司无异于“杀死了下金蛋的鹅,对任何人均无益”,因而于各者均不利,更无法实现发挥保障受压迫股东利益的预期效果。

英国2006公司法前言从教材所能引用的最早判例,1612,至今,英国公司法已经发展了三百多年。

从第一部成文法即1844年股份公司法,到这一轮公司法改革之前曾经发挥重要作用的《1985年公司法》,这期间经历数次大的改革或修订。

比较有名的几次,例如引入有限责任公司的《1855年有限责任法》,标志着公司法进入崭新时代的《1856年股份有限公司法》,规定银行业可以采取股份公司形式的1857年和1858年股份银行公司法,引入私人公司、大幅度整合以前法律《1908年公司法》,增加控股公司与子公司之间关系、规定可赎回优先股的《1929年公司法》,强调会计公开的《1948年公司法》,修改公司信息披露方面规定的《1967年公司法》,加强公司信息披露要求的《1976年公司法》,引入欧盟公司法指令的1980和1981年公司法,以及融合了先前法律、其后施行二十多年的《1985年公司法》。

1998年英国又一次迎来了大规模的公司法改革。

这次改革的成果是,产生了英国历史上最长的一部成文法,即《2006年公司法》。

一、英国公司法改革进程这一轮公司法改革从1998年开始，到2006年暂告结束。

1998年，1英国政府(贸易工业部)成立公司法审议指导小组(Company Law Review Steering Group)，肩负着提出全面修改意见的任务，开始对以前公司法的实施情况进行综合审议。

审议分成四个阶段并且在各个阶1 “贸易工业部”(Department of Trade and Industry)已经改名为“商业/企业和管理改革部(Department of Business, Enterprise & Regulatory Reform, BERR)”。

1段发表了相关的报告:1999年2月发表的《战略性框架》(The Strategic Framework)阐述了审议的方法、方向、一些基本问题以及今后的工作;2000年3月发表的《发展框架》(Developing the Framework)分析了公司治理结构和小公司、私人公司，提出了建议;2000年11月发表的《完善结构》(Completing Framework)则进一步修改报告并且提出了建议。

新《公司法》(英文版法条)Company Law of the People's Republic of China(The Company Law of the People’s Republic of China has been amended and adopted by the18th meeting of the Standing Committee of the Tenth National People's Congress on October27,2005.This Law,as amended, is hereby promulgated and will come into force on January1,2006.)Chapter One:General Provisions.1Chapter Two:Incorporation and Organizational Structure of a Limited Liability Company.6Section One Incorporation.6Section Two Organizational Structure.9Section Three Special Provisions on One-Person Limited Liability Companies.14Section Four Special Provisions on Wholly State-owned Companies.15Chapter Three:Share Transfer of a Limited Liability Company.16Chapter Four:Establishment and Organizational Structure of a Joint Stock Limited Company.18Section One Establishment18Section Two General Meeting of Shareholders.23Section Three Board of Directors and General Manager25Section Four Board of Supervisors.27Chapter Five Issue and Transfer of Shares of Joint Stock Limited Companies.28Section One Issue of Shares.28Section Two Assignment Of Shares.31Chapter Six:Qualifications and Obligations of Directors,Supervisors and Senior Officers.32Chapter Seven:Company Bonds.35Chapter Eight:Financial and Accounting Affairs of Company.36Chapter Nine:Merger and Division of Company,Increase and Decrease of Registered Capital38Chapter Ten:Dissolution and Liquidation of Company.40Chapter Eleven:Branch of Foreign Company.42Chapter Twelve:Legal Liabilities.43Chapter Thirteen:Supplementary Provisions.47Chapter One:General ProvisionsArticle1This Law is enacted in order to standardize the organization and activities of companies,to protect the legitimate rights and interests of companies,shareholders and creditors,to maintain the socio-economic order and to promote the development of the socialist market economy.Article2The term'company'referred to in this Law means a limited liability company or a joint stock limited company incorporated within the territory of the People's Republic of China in accordance with this Law.Article3A company is an enterprise legal person that shall enjoy the right to the entire independent property of the legalperson.A company shall be liable for its debts to the extent of all its assets.In the case of a limited liability company,shareholders shall assume liability towards the company to the extent of their respective capital contributions.In the case of a joint stock limited company,shareholders shall assume liability towards the company to the extent of their respective shareholdings.Article4The shareholders of a company shall enjoy such rights as benefiting from assets of the company,making major decisions and selecting managerial personnel in accordance with the law.Article5In conducting its business,a company must abide by laws and administrative rules and regulations,observe social morals and business ethics,conduct businesses in good faith,subject itself to the supervision of the government and the public and fulfill social responsibilities.The company's lawful rights and interests are protected by law and shall not be infringed upon.Article6A company shall apply to the company registration authority for establishment panies meeting the conditions set by this Law shall be registered as limited liability companies or joint stock limited companies;while companies failing to meet the conditions set by this Law shall not be registered as limited liability companies or joint stock limited companies.Where laws,administrative rules and regulations provide that incorporation of companies must be subject to examination and approval,the procedures of examination and approval shall be completed according to law prior to the registration of such companies.The public may inquire about registration items from the company registration authority.The company registration authority shall provide such inquiry service.Article7The company registration authority shall grant registration and issue a business license to a company that is established in accordance with the law.The date of the issuance of the company business license shall be the date of the incorporation of the company.The business license shall specify the name and domicile of the company,registered capital,paid-in capital, business scope,the name of the legal representative,etc.In the event of any change to the registration item of the business license,a company shall undergo alteration registration procedures with the company registration authority in accordance with the law,after which a new business license shall be issued to the company.Article8A limited liability company established according with this Law must clearly indicate the words'limited liability company'in its name.A joint stock limited company established according to this Law must clearly indicate the words'joint stock limited company'or‘joint stock company’in its name.Article9If a limited liability company is to be converted into a joint stock limited company,it shall satisfy the requirements for a joint stock limited company stipulated by this Law.If a joint stock limited company is to be converted into a limited liability company,it shall satisfy the requirements for a limited liability company stipulated by this Law.Where a limited liability company is converted into a joint stock limited company or vice versa,the claims and debts of the original company shall be succeeded to by the company into which it is converted.Article10A company's domicile shall be the place where its main administrative organization is located.Article11Articles of association must be formulated in accordance with the law when a company is incorporated.A company's articles of association shall have binding force on the company,its shareholders,directors, supervisors and senior officers.Article12A company's scope of business shall be defined in its articles of association and registered in accordance with the law.A company may change its scope of business by amending its articles of association but shall register such amendments with the company registration authority.Items within the company's business scope that are subject to verifications under laws,administrative rules and regulations shall be approved in accordance with the law.Article13The legal representative of a company may be represented by the chairman,executive director or manager of a company in compliance with its articles of association and registered in accordance with the law.In the event of any change of the legal representative of a company,such change shall be registered in accordance with the law.Article14A company may establish branches.The company,in establishing its branch(es),shall conduct establishment registration procedures with the company registration authority and obtain the business license(s).The branches shall not possess the status of enterprise legal persons and whose civil liabilities shall be borne by the company.A company may establish subsidiaries,which shall possess the status of enterprise legal persons,and shall independently bear civil liabilities in accordance with the law.Article15A company may invest in other enterprises,however,unless otherwise stipulated by the law,the company making such investment shall not bear joint and several liability for the debts of the enterprise in which the company invests.Article16Investments in other enterprises or provisions of security by a company shall be determined by its board ofdirectors,shareholders meeting or general meeting of shareholders in compliance with its articles of association.Where the limit of the aggregate amount of investment or security extended by a company or,the amount of investment or security extended in each case is set out in the articles of association,the actual amount of investment or security shall not exceed such limit.Security provided by a company to its shareholders or actual controller shall be determined by the shareholders meeting or the general meeting of shareholders of the company.The shareholders described in the preceding paragraph or the shareholders dominated by the actual controller described in the preceding paragraph shall not participate in the voting process on the matters described in the preceding paragraph.The vote on such matters shall be adopted by more than half of all the other shareholders attending the meeting.Article17Companies must protect the lawful rights and interests of their staff and workers,sign labor contracts with them and cover them with social insurances in accordance with the law,and strengthen labor protection so as to achieve safety in production.Companies shall apply various forms to strengthen professional education and on-the-job training of their staff and workers so as to improve their skills and capabilities.Article18Company's staff and workers shall,in accordance with the Trade Union Law of the People’s Republic of China, organize a trade union to carry out the trade union activities and protect the lawful rights and interests of the staff and workers.The company shall provide its trade union with conditions necessary for carrying out its activities.The trade union may represent the staff and workers to enter into a collective contract with the company in respect of the remuneration,work hours,welfare,insurance,labor security,etc.in accordance with the law.Companies shall,through the congress of the workers and staff members or other forms,practice democratic management in accordance with the provisions of the Constitution and relevant laws.A company shall seek advices from its trade union when discussing and deciding upon important issues on the restructuring or operation of the company,or formulating important rules and regulations and shall,through the congress of the workers and staff members or other forms,seek advice and suggestions from its staff and workers.Article19The organizations of the Communist Party of China may be established in companies and carry out their activities in accordance with the Constitution of the Communist Party of panies shall provide the organizations of the Communist Party of China with conditions necessary for carrying out their activities.Article20The shareholders of a company shall exercise their shareholders’rights in compliance with laws, administrative rules and regulations as well as the articles of association of the company,shall not abuse their shareholders’rights to injure the interests of the company or other shareholders,or take advantage of the company’s independent status or the limited liability of shareholders to injure the interests of the company’screditors.Where the abuse of shareholders’rights causes any loss to the company or other shareholders,such abusive shareholder shall be liable for compensation in accordance with the law.Where shareholders of a company take advantage of the company’s independent status or the limited liability of shareholders to disregard debts and seriously injures the interests of the company’s creditors,such shareholders shall bear joint and several liability for the debts of the company.Article21The controlling shareholders,actual controllers,directors,supervisors or senior officers of a company shall not take advantage of their affiliations with others in an attempt to harm the company’s interests and,where any losses are incurred in violation hereof,shall be liable for compensation.Article22Any resolution against laws and administrative rules and regulations that is adopted by the shareholders meeting,the general meeting of shareholders or the board of directors of a company shall be null and void.Where the convening of shareholders meeting,general meeting of shareholders or board of directors of a company or the voting method violates laws,administrative rules and regulations or the articles of association of the company,or the resolution thereof contravenes the articles of association of the company,shareholders may,within sixty(60)days of the resolution,apply to the people’s court for revocation.Where shareholders file suit in accordance with the provisions of the preceding paragraph,a people’s court may,at the company’s request,order the shareholders to provide relevant security.Where the company has effected alteration registration according to the resolution of shareholders meeting, general meeting of shareholders or board of directors,the company shall,after the people’s court declares such resolution null and void or revokes the same,shall apply to the company registration authority for cancellation of its alteration registration.Chapter Two:Incorporation and Organizational Structure of a Limited Liability CompanySection One IncorporationArticle23The following conditions shall be fulfilled for the incorporation of a limited liability company:(1)The number of shareholders conforms to the statutory quorum;(2)The capital contributions of the shareholders reach the statutory minimum amount of capital;(3)The shareholders have jointly formulated the articles of association of the company;(4)The company has a name and an organizational structure established in compliance with the requirements for a limited liability company;and(5)The company has a domicile.Article24A limited liability company shall be incorporated by not more than fifty(50)shareholders.Article25The articles of association of a limited liability company shall specify the following particulars:(1)the name and domicile of the company;(2)the scope of business of the company;(3)the registered capital of the company;(4)the names or titles of the shareholders;(5)the method,amount and time of capital contributions by the shareholders;(6)the organization of the company,its method of creation,functions and powers and therules of procedure;(7)the legal representative of the company;(8)other items which the shareholders deem necessary to be specified.Shareholders shall sign and execute the article of association of the company.Article26The registered capital of a limited liability company shall be the amount of the paid-up capital contributions of all its shareholders as registered with the company registration authority.The amount of the initial investment contributed by all shareholders shall not be lower than twenty percent(20%)of the registered capital or the minimum amount prescribed by the law,the remaining of which shall be fully paid up within two years of the establishment of the company.In the case of an investment company,the remaining amount of the registered capital may be paid up within five years of the establishment of the company.The minimum amount of the registered capital of a limited liability company shall be RMB30,000.Where laws and administrative regulations provide for more than the minimum amount,such provisions shall apply.Article27Except for assets forbidden to be used as contribution by laws and administrative regulations,a shareholder may make its capital contributions to a company in currency or by contributing such non-currency property as material objects,intellectual property rights and land-use rights that can be evaluated in the form of currency and transferred in accordance with the law.The non-currency property to be contributed as capital shall undergo an asset valuation and verification,and shall not be overvalued or undervalued.Where there are other provisions of laws and administrative regulations on the valuation and verification of non-currency property,such provisions shall apply.The amount of the capital contributions in currency shall not be lower than thirty percent(30%)of the amount of the registered capital of the limited liability company.Article28Each shareholder shall make in full the amount of the capital contribution subscribed for under the articles of association of the company.Where a shareholder makes its capital contribution in currency,it shall deposit the full amount of such capital contribution in currency in the bank account opened by the limited liability company to be established.Where a shareholder makes its capital contribution in the form of non-currency property,the property rights therein shall be transferred in accordance with legally prescribed procedures.Shareholders failing to make full capital contributions they have subscribed for in accordance with the preceding paragraph shall,they shall,in addition to making the contributions in full,be liable for breach of contract towards the shareholders who have made full capital contributions.Article29After all shareholders have made their capital contributions in full,such contributions must be verified by a statutory capital verification institution which shall issue capital verification certificates.Article30After the initial capital contributions of the shareholders have been verified by a statutory capital verification institution,application shall be made to the company registration authority for registration of the incorporation of the company by a representative designated by all the shareholders or by an agent jointly entrusted by them, who shall submit such documents as an application for registration,the articles of association and the capital verification certificate.Article31Where,after the incorporation of a limited liability company,it is discovered that the actual value of the non-currency property contributed as capital is notably less than the value stated in the articles of association, the shareholders that made such contributions shall make up the difference.Those who are shareholders at the time of the incorporation of the company shall bear joint and several liability therefor.Article32After a limited liability company has been incorporated,it shall issue capital contribution certificates to its shareholders.A capital contribution certificates shall specify the following items:(1)the name of the company;(2)the registration date of the company;(3)the registered capital of the company;(4)the name or title of the shareholder,the amount and date of its capital contribution;(5)the serial number of the capital contribution certificate and the date of its verification and issuance.A capital contribution certificate shall bear the seal of the company on it.Article33A limited liability company shall prepare a roster of its shareholders with the following items therein:(1)the names or titles and domiciles of the shareholders;(2)the amounts of capital contributions of the shareholders;and(3)the serial numbers of the capital contribution certificates.The shareholders recorded in the roster of shareholders may claim and exercise the right of shareholders on the strength of the roster of shareholders.The company shall register the names of shareholders and the amount of capital contributions of the shareholders with the company registration authority and,in the event of any change thereof,apply foralteration registration.Unless duly registered,the above-mentioned items and any changes thereof shall not be a defense against a third party.Article34A shareholder shall have the right to view the articles of association,the minutes of shareholders meetings, resolutions of board of directors and board of supervisors and the financial and accounting reports of the company.Shareholders may view the accounting books and reports of the company.For this purpose,they shall submit a written request and state reasons.Where the company reasonably believes that shareholders have unjust purposes in viewing the accounting books and reports which may harm the legal rights and interests of the company,the company may refuse such request and shall,within fifteen(15)days of such request,reply in written form and state reasons.Given such,shareholders may apply to the people’s court for an order under which the company shall provide the shareholders with such references.Article35Unless otherwise agreed upon by all shareholders,shareholders shall draw dividends in proportion to their actual capital contributions and,where a company increases capital,shall have priority in subscription for new shares in proportion to their actual contributions.Article36Once a company is registered,its shareholders shall not withdraw their capital contributions.Section Two Organizational StructureArticle37The shareholders meeting of a limited liability company shall be composed of all the shareholders.The shareholders meeting shall be the organ of power of the company and shall exercise its functions and powers in accordance with this Law.Article38The shareholders meeting shall exercise the following functions and powers:(1)to decide on the business policy and investment plan of the company;(2)to elect and recall directors and supervisors whose posts are not taken by the representatives of the staff and workers,and to decide on matters concerning the remuneration of directors and supervisors;(3)to examine and approve reports of the board of directors;(4)to examine and approve reports of the supervisory board or supervisors;(5)to examine and approve the annual financial budget plan and final accounts plan of the company;(6)to examine and approve plans for profit distribution of the company and plans for making up losses;(7)to adopt resolutions on the increase or reduction of the registered capital of the company;(8)to adopt resolutions on the issuance of company bonds;(9)to adopt resolutions on matters such as the merger,division,transformation,dissolution and liquidation of the company;(10)to amend the articles of association of the company;(11)to exercise other functions and powers provided for in the articles of association.Where a unanimous consent on the matters described above is achieved in writing by shareholders,the company may directly make decisions that shall be signed and executed by all shareholders instead of convening a shareholders meeting.Article39The first meeting of the shareholders of a company shall be convened and presided over by the shareholder who has made the biggest capital contribution to the company and shall exercise its functions and powers in accordance with this Law.Article40Shareholders meetings shall be divided into regular meetings and interim meetings.Regular shareholders meetings shall be convened on time as stipulated by the articles of association of the company.Interim shareholders meetings may be convened upon proposal made by shareholders representing more than one-tenth of voting rights or by more than one-third of directors,or at the request of board of supervisors or the supervisors of a company absent a board of supervisors.Article41Where a limited liability company has a board of directors,its shareholders meeting shall be convened by the board of directors and presided over by the chairman of the board.Where the chairman of the board is unable to or does not perform his function,the meeting shall be presided over by a vice-chairman.Where the vice-chairman is unable to or does not perform his function,the meeting shall be presided over by a director jointly nominated by more than half of the directors.Where a limited liability company does not form a board of directors,the shareholders meetings shall be convened and presided over by the executive director.Where the board of directors or executive director cannot or does not perform its function,the shareholders meeting shall be convened and presided over by the board of supervisors or the supervisor in the absence of a board of supervisors.Where the board of supervisors or supervisor cannot or does not perform its function,the meeting shall be convened and presided over by shareholders representing more than one-tenth of the voting rights.Article42All shareholders shall be notified fifteen(15)days prior to the convening of a shareholders meeting,unless otherwise stipulated by the articles of association or agreed upon by all shareholders.The shareholders meeting shall prepare minutes regarding the decisions on matters considered at the meeting, which shall be signed by the shareholders present at the meeting.Article43Shareholders shall exercise their voting rights at the shareholders meeting in proportion to their capital contributions,unless otherwise stipulated by the articles of association.Article44Except as provided for in this Law,the rules of deliberation and voting procedures of the shareholders meetingshall be stipulated by the articles of association of the company.Resolutions of the shareholders meeting on the increase or reduction of the registered capital,the division, merger,dissolution,or transformation of the company must be adopted by shareholders of the company representing two-thirds or more of the voting rights.Article45Except as otherwise provided for in Article51of this Law,a limited liability company shall have a board of directors,which shall be composed of three to thirteen members.The members of the board of directors of a limited liability company invested in and established by two or more State-owned enterprises,or by two or more other State-owned investment entities shall include representatives of the staff and workers of the company.The members of the board of directors of other limited liability companies may also include representatives of the staff and workers.Such representatives of the staff and workers shall be democratically elected by the workers and staff members of the company through the congresses or assemblies of the staff and workers or other forms.A board of directors shall have a chairman and may have a vice-chairman.The method for the creation of the chairman and vice-chairmen shall be stipulated in the articles of association of the company.Article46The term of the directors shall be prescribed by the articles of association,provided that each term may not exceed three(3)years.A director may continue to serve his post if he is re-elected upon the expiration of his term.Where a new elect is not yet available upon expiration of a director’s term,or the number of the directors on the board is less than the quorum due to the resignation of a director within his term,such director,before the new elect takes his office,shall continue the performance of his duties in accordance with laws, administrative regulations and the articles or association.Article47The board of directors is accountable to the shareholders meeting and shall exercise the following powers:(1)being responsible for convening shareholders meetings and presenting reports thereto;(2)implementing resolutions adopted by the shareholders meeting;(3)determining the company's operational plans and investment programs;(4)preparing annual financial budget plans and final accounting plans of the company;(5)preparing profit distribution plans and plans to cover company losses;(6)preparing plans for increasing or reducing registered capital of the company or issuing company bonds;(7)drafting plans for merger,division,change of corporate form or dissolution of the company;(8)determining the structure of the company's internal management;(9)appointing or removing the general manager of the company,appointing or removing,upon the general manager's recommendation,deputy managers of the company and the officer in charge of finance,and determining the remuneration for those officers;(10)formulating the basic management scheme of the company;(11)exercising other powers stipulated by the articles of association.Article48A meeting of the board of directors shall be convened and presided over by the chairman.Where the chairman is unable to or does not perform his duties,the meeting shall be convened and presided over by the。

论公司章程防御性条款的法律效力王建文;孙清白【摘要】Company Act 2006 of UK includes entrenched provisions of the articles. As a way of pro-tecting the rights and benefits of certain shareholders,entrenched provisions have different types. Within Britain's law,entrenched provisions cannot violate mandatory rules,deprive shareholders of their statutory rights or burden them with obligations without prior consent. In addition,entrenched provisions should be made for the benefit of the company as a whole. Within China's law,entrenched provisions can be widely used. Based on the law and relevant cases,the validity of entrenched provi-sions can be analyzed into different types.%英国《2006年公司法》将防御性条款纳入法律规制。

作为一种保护特定股东权益的制度设计，防御性条款可以有多种类型。

英国法中的防御性条款除不能反强制性规定，未经允许剥夺股东法定权利以及施加股东义务外，还要遵循普通法上的善意地为了公司整体利益原则。

防御性条款在我国法律框架下有极大适用空间，结合现行法律和相关案例，可以对防御性条款的法律效力作出类型化分析。