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法律专业案列分析作业:公司法case study

时间:2019-03-25 15:44来源:未知 作者:anne 点击:
Case Study案列分析
汤姆·桑德斯(Tom)在香港湾仔电脑售货机拥有一家电脑商店。他的商店有“公司注册证书”。关于汤姆的商店是一起民事案件的被告。此案的最终结果是汤姆的店铺没有受到判决的青睐,必须向原告支付120万港元的损害赔偿金。汤姆的所有资产约为65.5万港元,远低于赔偿金额。
Tom Sanders (“Tom”) owns a computer shop in Wanchai Computer Certer in Hong Kong. His shop has a “Certificate of incorporation”. Tom’s shop was a defendant in a civil case. The final result of this case is Tom’s shop was not favored by judgment, and has to pay damages of HK$1,200,000 to the plaintiff. All the assets of Tom were about HK$655,000, which is much less than the amount of compensation.
要解决汤姆的问题,我们必须了解汤姆真正的生意类型。汤姆的电脑商店在香港成立,这是一个小企业。香港有多种业务类型,其中独资企业和民营企业适合小规模经营。从这个案例中,我们注意到有一个“公司注册证书”。根据《商业登记条例》(第310章)的规定,公司的申请应在公司注册处(CR)成立之日起一个月内提出;经批准后,CR将颁发公司注册证书(CI)。甚至电脑店通常都是由汤姆经营的,他的性质是私人公司而不是独资企业。
To solve Tom’s problem, we must know the real type of Tom’s business. Tom’s computer shop was incorporated in Hong Kong, which is a small business. There are several business types in Hong Kong, among them sole proprietorship and private company are suitable for the small scale business. From the case we noticed there is a “Certificate of incorporation”. According to the provisions of the Business Registration Ordinance (Cap 310), application of company should be made within one month of the date of incorporation with the Companies Registry (CR); upon approval, the CR will issue the Certificate of Incorporation (CI). Even the computer shop is usually run by Tom only, whose nature is a private company rather than sole proprietorship. 
在香港的私人公司由NCO的S 11定义,而这也是为小企业设计的。在私人公司,成员也是公司的经理。股东转让股份的权利受到限制。个人独资与私营公司最大的区别是:个人独资不能保护企业所有者的个人财产;但是,除不承担有限责任的公司外,公司成员(特别是股份有限公司)均享有有限责任。担保有限公司通常指慈善或非营利组织。在这些组织中,成员的责任以他们同意分担的数额为限。Private company in Hong Kong is defined by s 11 of the NCO, which is also devised for the small business. In private company the members are also the managers of the company. Members’ rights to transfer shares are restricted. The biggest difference between sole proprietorship and private company is: sole proprietorship cannot protect personal assets of the business owner; however, except companies without limited liability, members of company (especially company limited by shares) enjoy limited liability. Company limited by Guarantee usually refers to charity or non-profit making organizations. In these organizations, members liabilities are limited by the amount which they agree to contribute to.
Back to our case, the compute shop ran by Tom is not charity of non-profit organization; the compute shop can be company limited by shares or company without limited liability. 
In the former situation, the computer shop is liable for all debts, and Tom enjoys limited liability. If all the assets of the computer shop cannot clear off the debts, business bankruptcy is a possible outcome, and Tom’s personal saving and home can be protected even the lawsuit is filed against his shop.
In the latter situation, Tom and the computer shop are regarded as the same. Tom is fully liable for all the debts and liabilities of the computer shop. That is to say, Tom is personally liable for all the risks, debts and liabilities of their firms. As stated in the case, Tom has to bear all the HK$1,200,000 debts and all his personal assets would be involved without limited in any legal action taken against his shop. Since all the assets of Tom cannot clear off the debts, there are two possible outcomes: first, Tom can only borrow money from someone else to pay off the debts and ask for compensation from the computer shop or other shareholders if there is any; or Tom can apply personal bankruptcy.



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