公司法留学作业-引用香港公司条例 Cap 622 及引用case law

汤姆·桑德斯（“汤姆”）在香港湾仔电脑中心拥有一家电脑店。他的商店有“注册证书”。汤姆的商店是民事案件的被告。这宗案件的最终结果是汤姆的店铺不受判决的支持，并向原告支付120万港元的赔偿金。汤姆的全部资产约为港币65.5万元，远低于补偿金额.。

要解决汤姆的问题，我们必须知道汤姆的业务的真正类型。汤姆的电脑店在香港成立，这是一个小企业。香港有几个业务类型，他们个人独资和私营企业中适合于小规模企业。从案件中我们注意到有“注册证书”。根据《商业登记条例》（第310章）的规定，公司的注册申请须在注册成立之日起一个月内与公司注册处（CR）相结合；经批准后，公司将发出注册证书。即使是电脑商店通常是由汤姆管理，其性质是私人公司，而不是独资经营。

 

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#分页标题#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.