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. ID : 6813

Company Law. Second Edition
()Simon Goulding
Хозяйственное право
London
1999
479
ISBN1 85941 426 5
1
Так
Preface vii
Table of Cases xv
Table of Statutes xxxvii
Table of Statutory Instruments xlv
Table of European Legislation xlvii
1 Introduction 1
GENERAL 1
PUBLIC AND PRIVATE COMPANIES 2
COMPANIES AND PARTNERSHIPS 5
FEATURES OF THE REGISTERED COMPANY 5
Incorporation by registration 5
Transferable shares 8
Limited liability 9
Disclosure and formality 11
The advantages of forming a company 13
The purpose of company law 15
The sources and reform of company law 16
2 Formation and Promotion 27
FORMATION 27
Company names 29
Promoters 32
PROTECTION OF SUBSCRIBERS AND ALLOTTEES OF SHARES 38
Civil liability 38
Criminal liability 46
PRE-INCORPORATION CONTRACTS 47
3 Corporate Personality and the Registered Company 53
THE REGISTERED COMPANY AS A SEPARATE PERSON 53
CORPORATE LIABILITY 56
Identification theory 56
Corporate criminal liability 58
Lennard’s Carrying Co re-appraised: the attribution theory 61
LIFTING THE VEIL OF INCORPORATION 66
Judicial lifting the veil 66
Statutory lifting the veil 79
Miscellaneous legislative provisions 88
4 The Constitution of the Registered Company 91
THE MEMORANDUM OF ASSOCIATION 91
THE ARTICLES OF ASSOCIATION 94
The contractual effect of the articles 94
ix

Alteration of the articles 103
The articles and separate contracts 109
USING THE CONSTITUTION TO CONTRACT
OUT OF COMPANY LAW 115
5 Corporate Decision Making 117
THE GENERAL MEETING 117
Introduction 117
The basic requirements 119
Annual general meeting 120
Extraordinary general meeting 121
Notices 122
Circulars 123
Power of the court to order a meeting 124
Resolutions 126
Voting 128
Proxy voting 130
Exercise of the right to vote in general meeting 132
Unanimous informal agreement 134
Written resolutions 138
BOARD MEETINGS 141
THE RELATIONSHIP BETWEEN THE BOARD
OF DIRECTORS AND THE GENERAL MEETING 144
THE RESIDUAL POWERS AND ROLE OF
THE GENERAL MEETING 149
Shareholders’ powers to remove directors 150
Ratification and approval of irregularities 152
Miscellaneous residual statutory powers of the general meeting 154
6 Corporate Transactions 155
GENERAL 155
TRANSACTIONS OUTSIDE THE OBJECTS CLAUSE
OF THE MEMORANDUM 156
The history of ultra vires 156
Powers 158
Reform of ultra vires 159
Gratuitous dispositions and non-commercial transactions 162
TRANSACTIONS WHERE THERE IS A NON-COMPLIANCE
WITH INTERNAL MANAGEMENT PROCEDURES 164
TRANSACTIONS WHERE THE PERSON ACTING FOR
THE COMPANY IS NOT AUTHORISED 167

REFORMS IN RESPECT OF LIMITATIONS ON
THE BOARD’S POWERS 170
A FUTURE ROLE FOR THE RULE IN TURQUAND? 174
WHERE THE CONTRACTING PARTY IS A DIRECTOR
OF THE COMPANY 175
7 Capital 177
INTRODUCTION 177
REDUCTION OF CAPITAL 180
REDEMPTION AND PURCHASE BY A COMPANY
OF ITS OWN SHARES 183
Redemption 184
Purchase 185
Redemption and purchase of a company’s own
shares out of capital 188
Effect of a company’s failure to redeem or purchase
its own shares 189
FINANCIAL ASSISTANCE BY A COMPANY FOR
THE ACQUISITION OF ITS OWN SHARES 190
General prohibition 190
Exceptions to the s 151 prohibition 194
Private companies and the relaxation of s 151 195
Consequences where a transaction infringes s 151 197
ULTRA VIRES AND THE MAINTENANCE OF CAPITAL RULE 198
DIVIDENDS 199
BONUS SHARES 202
SERIOUS LOSS OF CAPITAL 203
8 Shares 205
THE NATURE OF SHARES 205
THE POWER TO ALLOT SHARES 206
PRE-EMPTION RIGHTS 208
PAYMENT FOR SHARES 210
Non-cash allotments by a private company 210
Non-cash allotments by a public company 211
CLASSES OF SHARES 213
Ordinary shares 214
Preference shares 214
VARIATION OF CLASS RIGHTS 215
Procedure 215
Meaning of class rights 216
Voting at class meetings on a proposed variation 218
What is a variation of class rights? 219

TRANSFER OF SHARES 220
Directors’ powers to refuse registration of a new member 220
Register of members 222
Share certificates 223
Method of transfer: generally 224
Transfer of shares: listed companies 225
DISCLOSURE OF INTEREST IN SHARES 227
Directors’ shareholdings 228
Disclosure of substantial interests 228
Concert parties 229
Investigation by the company 229
Investigation by the Secretary of State 230
Freezing orders 230
9 Insider Dealing 231
BACKGROUND 231
THE COMMON LAW 231
EXTRA-LEGAL CONTROL 232
THE EMERGENCE OF CRIMINAL SANCTIONS 232
JUSTIFICATION FOR THE PROHIBITION
OF INSIDER DEALING 233
THE OFFENCES OF INSIDER DEALING 235
The meaning of ‘securities’ 235
The meaning of ‘dealing’ 236
The meaning of ‘inside information’ 237
The meaning of ‘insider’ 238
Defences 239
The territorial scope of the offences 241
The penalties for insider dealing 241
Investigations 242
10 Directors 245
INTRODUCTION 245
Corporate governance 245
The office of director 246
Remuneration 249
DUTIES AND OBLIGATIONS OF DIRECTORS GENERALLY 255
Duties are owed to the company 255
Duty to employees 258
Duty to creditors 260
THE FIDUCIARY DUTY 262
General 262
Obligation on directors not to fetter their discretion 263
Nominee and multiple directorships 265
Duty to use powers for a proper purpose 266
Conflict of personal interest and duty 271
Control of directors’ profits 282
DUTIES OF SKILL AND CARE 288
Liability to third parties 292
MISCELLANEOUS STATUTORY PROVISIONS 294
Misfeasance proceedings 294
Relief from liability: the articles 295
Relief from liability: statute 296
REFORM OF THE LAW RELATING TO DIRECTORS’ DUTIES 297
DISQUALIFICATION ORDERS 299
11 Accounts and Auditors 305
ACCOUNTS 305
General requirements 305
Directors’ report 307
Auditors’ report 308
Exemptions for small and medium-sized companies 309
Dormant companies 310
Elective resolutions 310
AUDITORS 311
General 311
Qualifications and eligibility for appointment 312
Liabilities of auditors 313
12 Company Charges 317
INTRODUCTION 317
The contract for security 319
The rights of a debenture holder 321
CHARGES 323
Distinguishing fixed and floating charges 324
Crystallisation of floating charges 327
Drawbacks of floating charges 329
AVOIDANCE OF CHARGES 333
Section 245 333
Sections 238 and 239 335
REGISTRATION OF CHARGES 337
What is registrable? 337
Failure to register 339
13 Shareholder Remedies 341
INTRODUCTION
THE COMMON LAW 342
The principle of majority rule 342
Limits to the principle of majority rule 344
STATUTORY REMEDIES 355
Companies Act 1985, s 459 355
Insolvency Act 1986, s 122(1)(g) 374
Companies Act 1985, ss 431–53 of Part XIV 379
THE LAW COMMISSION RECOMMENDATIONS 383
A new derivative action 384
Active case management of s 459 proceedings 385
Presumptions in s 459 proceedings 386
A new ‘exit’ article for Table A 387
14 Winding up 389
THE TYPES OF WINDING UP 389
Compulsory winding up 389
Voluntary winding up 392
Powers of the liquidator 394
The distribution of the company’s assets 396
DISSOLUTION 397
STRIKING OFF DEFUNCT COMPANIES 398
15 European Union Action in Company Law 399
HARMONISATION 399
OTHER COMMUNITY ACTION 403
European Economic Interest Grouping 403
European Company Statute 404
Bibliography 409
Index 411
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