CHAPTER 16 SINGAPORE COMPANY LAW
特索罗Section 1 Introduction
Section 2 Incorporation and its Conquences
Section 3 Corporate Governance
Section 4 Enforcement of Corporate Rights
Section 5 Shareholder Remedies
onlyone什么意思Section 6 Shares
Section 7 Debentures and Charges
Section 8 Companies in Distress crossfire
Section 9 Winding up
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SECTION 1 INTRODUCTION
ro什么意思16.1.1 InSingapore, companies are principally governed by the Companies Act (Cap 50, 1994 Rev Ed) (hereinafter “the Act”). It should be noted though that specific types of companies may, in addition to the Companies Act, be regulated by other statutes. For example, insurance companies and banks are also regulated by the Insurance Act (Cap 142, 1994 Rev Ed) and the Banking Act (Cap 20, 1994 Rev Ed) respectively. Limited liability partnerships, which despite their name are companies, are governed by the Limited Liability Partnership Act (Act 5 of 2005). Certain provisions in other statutes such as the Securities and Futures Act (Cap 289, 1994 Rev Ed) are also relevant to companies.
boldly16.1.2 It should also be noted that the statutory provisions governing companies are supplemented by the common law.
SECTION 2 INCORPORATION AND ITS CONSEQUENCES
Obligation to Incorporate
16.2.1 Under ction 17(3) of the Act, a business organization that has more than 20 members must be incorporated as a company. However, this requirement does not apply to a partnership of persons carrying on a profession that is formed in pursuance of some other written law inSingapore(ction 17(3) of the Act). Thus members of the legal profession who are governed by the Legal Profession Act (Cap 161, 1994 Rev Ed) may establish partnerships of more than 20 partners.maxell
Registration of a Company
16.2.2 As a general rule, any person may, upon lodgment of the requisite documents and payment of the prescribed fee, register a company in Singapore. The mandatory documents to be lodged under ction 19(1) of the Act are the memorandum and articles of association. The memorandum and articles of association are the constitutional documents of the company. Under ction 22(1) of the Act, the memorandum of association must prescribe the name of the company, the amount of its share capital (if any) and whether the liability of the members of the company is limited or unlimited. The
articles of association are the regulations of the company and contain provisions relating to how the company is to be governed. Where the memorandum and the articles are in conflict, the former will prevail.
16.2.3 Once the memorandum of the company is registered, the Registrar will issue a notice of incorporation stating that the company is, from the date specified in the notice, incorporated and the type of company it is, i.e. whether it is a limited or unlimited company and where applicable that it is a private company – e ction 19(4) of the Act.
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Effects of Incorporation
16.2.4 Section 19(5) of the Act ts out the general effect of incorporation which is that the company is a body corporate with all such powers as flow from such an entity. The company may sue and be sued in its own name, it has perpetual succession in that it can survive indefinitely until it is wound up, it may hold land, and the liability of its members is limited in the event the company is wound up.
16.2.5 Cas have established that as a body corporate a company has a distinct personality that is recognized by law. In other words, a company has an existence and identity parate from that of its members – e Salomon v A Salomon & Co Ltd [1897] AC 22; Lee v Lee’s Air Farming Ltd [1961] AC 12. The most important conquence of this is that the debts and obligations incurred by the company are its own and its members do not share the company’s liabilities. Creditors of the company may only look to the company for payment of debts owed to them by the company. If the company is insolvent and cannot pay its debts, the creditors will have to bear the loss however solvent the company’s individual members may be. All that the members of a company are obliged to do is to contribute the amount that remains unpaid on the shares that the members have subscribed. This obligation is owed to the company, not the creditors of the company. As such, if the shares were issued on a fully paid basis, or have already been fully paid, the members have no further liability to the company. Thus, when speaking of limited liability it is important to note that what is meant is not that the company’s liability is limited but that the members’ liability to contribute to the company is limited to the share capital for which the members have agreed to subscribe.
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‘Lifting the Veil’ of Incorporation
16.2.6 While an incorporated company has a personality parate from that of its members, there are circumstances when the courts will ignore such parate personality and treat the company and its members (or officers) as one for limited purpos. Thus, for example, there may be circumstances when the courts will hold the members of a company liable for debts incurred by the company. When the courts do so, it is said that the veil of incorporation is lifted or pierced. Generally, the cas of veil lifting fall into two categories: by statute and at common law.
Statutory Exceptions to the Separate Personality Doctrine
16.2.7 It is open to Parliament to limit the effects of incorporation by a suitably worded statutory provision. One of the more important statutory limitations on the parate personality doctrine aris under ctions 339(3) and 340(2) of the Act. The combined effect of tho provisions is that, where debts are contracted without any reasonable or probable expectation that the company would be able to pay the debts, any officer of the
company who was a party to the contracting of such debts is guilty of an offence and may, after conviction, be made personally liable by the court for the payment of the whole or any part of such debts.
16.2.8 Another important exception is found in ction 340(1) of the Act. Where it appears in the cour of the winding up of a company that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpo, the court may declare that any person who was knowingly a party to the carrying on of the business in such a manner shall be personally liable for all or any of the debts or liabilities of the company as the court may direct.
互惠互利16.2.9 A third important exception aris where dividends are paid even though there are no available profits out of which to pay such dividends – e ction 403(2)(b) of the Act. Since dividends may only be paid where there are profits so as not to unduly prejudice creditors of the company, a director or manager of a company who wilfully pays
or permits the payment of a dividend in the abnce of profits will be liable to the creditors of the company for the amount of the debts due to them to the extent by which the dividends exceed the available profits.
