题目内容
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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This question requires candidates to deal with the legal issues relating to derivative litigation 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.
In relation to fraudulent behaviour in corporate management, in terms of capital of the company:
(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)
Dalie Limited Liability Co (Dalie Co) applied to the people’s court for bankruptcy due to its poor business operations. On 30 April 2012, the people’s court rendered an order to accept the bankruptcy application and designated a bankruptcy administrator. At this moment, Dalie Co faced the following key financial matters:
(i) Construction Company had brought a lawsuit against Dalie Co for its delay to pay the construction price due, but the case was still pending for trial;
(ii) Dalie Co owed a loan totalling RMB 20 million yuan to Industry Bank, of which RMB 12 million yuan was secured by a guarantee agreement on the buildings of Dalie Co;
(iii) Dalie Co had provided a guarantee to Merchant Bank for a loan of RMB 10 million yuan borrowed by Jiqing Company. The loan has matured but Jiqing Company failed to repay the principal and interest.
Required:
Answer the following questions in accordance with the Enterprise Bankruptcy Law of China, and give your reasons for your answers:
(a) state how to deal with the pending disputes between Construction Company and Dalie Co; (3 marks)
(b) state how to deal with the loan of RMB 20 million yuan owed to Industry Bank; (3 marks)
(c) state whether Merchant Bank was entitled to declare the credit and join the bankruptcy procedure. (4 marks)
某单位组织100位员工看电影却只买到99张电影票，于是让这100名员工列队从左往右1．2报数．报1的领电影票入场，剩下员工重复这种报数直到电影票全部分完。拿不到电影票的是从右数排在第几位的员工？
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