公司法留學(xué)作業(yè)-引用香港公司條例 Cap 622 及引用case law

湯姆·桑德斯（“湯姆”）在香港灣仔電腦中心擁有一家電腦店。他的商店有“注冊證書”。湯姆的商店是民事案件的被告。這宗案件的最終結(jié)果是湯姆的店鋪不受判決的支持，并向原告支付120萬港元的賠償金。湯姆的全部資產(chǎn)約為港幣65.5萬元，遠(yuǎn)低于補償金額.。

要解決湯姆的問題，我們必須知道湯姆的業(yè)務(wù)的真正類型。湯姆的電腦店在香港成立，這是一個小企業(yè)。香港有幾個業(yè)務(wù)類型，他們個人獨資和私營企業(yè)中適合于小規(guī)模企業(yè)。從案件中我們注意到有“注冊證書”。根據(jù)《商業(yè)登記條例》（第310章）的規(guī)定，公司的注冊申請須在注冊成立之日起一個月內(nèi)與公司注冊處（CR）相結(jié)合；經(jīng)批準(zhǔn)后，公司將發(fā)出注冊證書。即使是電腦商店通常是由湯姆管理，其性質(zhì)是私人公司，而不是獨資經(jīng)營。

 

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.

 

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. 

 

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. #p#分頁標(biāo)題#e#

 

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.