题目内容（请给出正确答案）

[主观题]

This question requires candidates to deal with the legal issues relating to derivative lit

igation under the Company Law of China.

(a) Ms E was entitled to bring a lawsuit against Mr A. The legal basis for this conclusion is Articles 21, 150 and 152 of the Company Law. The controlling shareholders, actual controllers or directors of a company shall not, by taking advantage of their affiliate relationship, damage the interests of the company. Where any of the above-mentioned persons violates laws or articles of association of a company and causes damages to a company, such person shall be liable for the damages. If such a situation occurs, any shareholder may directly bring a lawsuit against the director, subject to the conditions as prescribed by the Company Law.

(b) In accordance with Article 152 of the Company Law, the following conditions shall be satisfied:

(i) Ms E requests the supervisory board in writing to bring a lawsuit against the director who causes the damage;

(ii) the supervisory board, upon its receipt of Ms E’s request, fails to file a lawsuit within 30 days upon the receipt of such request;

(iii) Ms E brings a lawsuit against the Mr A for the interests of the company, in her own name.

(c) Assuming Ms E was granted a favourable judgement by the court, the beneficiary should be Tenda Co Ltd. Although Ms E brought the lawsuit in her own name, the legal action was for the interests of the company. Therefore, the result of such a legal action should be attributed to the company.

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更多“This question requires candida…”相关的问题

第1题

Aishen Garment Co entered into a contract with Bulinger Store to sell 10,000 pieces of spo

rtswear to the latter. Under the contract Aishen Garment Co would deliver the goods at Bulinger Store’s warehouse by 30 June 2012 and receive payment upon delivery of the goods.

Having found market conditions tough after the conclusion of the contract, Bulinger Store asked to decrease the quantity of goods, but Aishen Garment Co disagreed. At this moment, Bulinger Store learnt that a company named Conka Sales intended to buy the same garments and resell them to another province. Therefore, Bulinger Store concluded an agreement with Conka Sales to transfer the rights and obligations under its contract with Aishen Garment Co.

Bulinger Store sent a letter to Aishen Garment Co, notifying it that the rights and obligations under the contract had been transferred to Conka Sales. Aishen Garment Co did not reply to the letter.

On 15 June 2012, however, Aishen Garment Co sent a fax to advise Conka Sales to be prepared for receiving the goods. At the end of June Aishen Garment Co delivered 10,000 pieces of sportswear to the premises of Conka Sales and received the total price paid by Conka Sales. However, a certificate of inspection issued by an independent institute indicated that nearly 30% of the goods were below the quality standard. Therefore, Conka Sales intended to reject the goods. Aishen Garment Co insisted that there was no contractual relationship between them, since it was merely under its contract with Bulinger Store to directly deliver the goods to Conka Sales.

Required:

Answer the following questions in accordance with the Contract Law of China, and give your reasons for your answers:

(a) state whether there was a contractual relationship between Aishen Garment Co and Conka Sales; (8 marks)

(b) state whether Aishen Garment Co or Bulinger Store should be liable for the defects of the goods. (2 marks)

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第2题

In relation to fraudulent behaviour in corporate management, in terms of capital of the co

mpany:

(a) describe various activities that shall be regarded as fraudulent behaviour; (6 marks)

(b) state the reasons why such activities will be regarded as fraudulent behaviour. (4 marks)

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第3题

In relation to the Securities Law of China:(a) explain a takeover by offer of a listed com

In relation to the Securities Law of China:

(a) explain a takeover by offer of a listed company; (3 marks)

(b) explain what happens after the expiration of the duration of the takeover by offer. (7 marks)

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第4题

In relation to the Enterprise Bankruptcy Law of China:(a) explain the term rectification;

In relation to the Enterprise Bankruptcy Law of China:

(a) explain the term rectification; (4 marks)

(b) state the legal effect of rectification on the right of guarantee during the period of rectification. (6 marks)

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第5题

In relation to the Company Law of China:(a) state the composition of the board of director

In relation to the Company Law of China:

(a) state the composition of the board of directors of a general limited liability company; (3 marks)

(b) state the composition of the board of directors of a limited liability company that is incorporated by two or more state-owned enterprises; (4 marks)

(c) state the way to deal with the situation where the number of directors is less than a quorum due to various causes and the re-election has not been completed. (3 marks)

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第6题

In relation to the Contract Law of China:(a) explain a pre-contractual liability, and dist

In relation to the Contract Law of China:

(a) explain a pre-contractual liability, and distinguish between this kind of liability and the liability for breach of contract; (6 marks)

(b) state various conducts of a party that will result in a pre-contractual liability. (4 marks)

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第7题

In relation to the Labour Contract Law of China:(a) explain a non-competition clause in a

In relation to the Labour Contract Law of China:

(a) explain a non-competition clause in a labour contract; (4 marks)

(b) state the various persons who are subject to non-competition obligations in their labour contracts with their employer; (2 marks)

(c) state the conditions and term of duration for a non-competition clause contained in a labour contract. (4 marks)

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第8题

In relation to the Judicial Interpretation on the Application of the Contract Law by the S

upreme People’s Court:

(a) state the procedural way to deal with the situation when an obligee has assigned his rights to a third party and a dispute, between the obligator and the assignee, is brought to the people’s court; (3 marks)

(b) state the procedural way to deal with the situation when an obligor has assigned his obligations to a third party and a dispute, between the assignee and obligee, is brought to the people’s court; (3 marks)

(c) state the procedural way to deal with the situation when a party has assigned his rights and obligations to an assignee and a dispute, between the other party and the assignee, is brought to the people’s court. (4 marks)

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第9题

In relation to the essential legal system of China:(a) explain the conditions under which

In relation to the essential legal system of China:

(a) explain the conditions under which the people’s congresses of provinces, autonomous regions and municipalities (provincial level people’s congresses) may enact local laws; (3 marks)

(b) (i) explain the conditions under which Ministries and Commissions under the State Council may issue rules and regulations; (4 marks)

(ii) state which shall prevail where there is a conflict between rules and regulations issued by Ministries and Commissions under the State Council and the local people’s congresses at provincial level. (3 marks)

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第10题

Mr Ding and his friends intended to establish a joint stock company in international trade

business and drafted a business proposal for further discussions with potential investors. Among other things the proposal contained the following items:

(a) The proposed joint stock company would be invested by nine sponsors, four sponsors from China and five sponsors from other Asian countries. Such arrangements would be of benefit to expand the Asian market. (3 marks)

(b) The registered capital of the company would be RMB 100 million yuan, among which RMB 30 million yuan would be subscribed by nine sponsors and the remaining RMB 70 million yuan would be subscribed through an initial public offering (IPO). (4 marks)

(c) All capital contributions by sponsors must be made in the form. of currency, as the joint stock company is to be incorporated through IPO. (3 marks)

Required:

Explain whether the above items (a), (b) and (c) are in conformity with the relevant provisions of the Company Law.

Note: The mark allocation is shown against each item.

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