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1992年6月,国家体改委公布的《股份有限公司规范意见》(以下简称《规范》),就股份有限公司的基本问题作了全面规定。《规范》既参照了国际公司法通例,又有中国特色;既能指导目前股份制试点工作,又为未来的公司法的出台当了先行军。笔者拟对《规范》巾有关发起人的几个问题试作初探。 一、发起人的含义。公司的创建,必须由若干人来具体进行,这些创建公司的人即为发起人。国外公司法一般认为发起人乃是在公司章程上签字盖章之人。例如,台湾、日本公司法均规定,所谓发起人是指正章程上作为发起人署名者,未在章程上署名,即使实际参与公司的设立过程,也不得为发起人(这也就意味着,只要在章程上签字盖章,即可有发起人的权利义务,而不论是否参予公司的设立)。如此看来,把在章程上签字盖章作为唯一条件过于机械。何况,公司设立中的章程尚未经主管机关登记,没有对抗第三人的效力,至多是一个草案,在这种非正式的章程上署名盖章又有多大法律意义?所以,国内有的学者对这一定义持有异议。《规范》则采用了一种不同于国外的表述,即“公司发起人,是指按照规范订立
In June 1992, the “Standard Opinions on Joint Stock Limited Companies” promulgated by the State Commission of Economic Restructuring (hereinafter referred to as the “Rules”) fully stipulated the basic issues of joint stock limited companies. The “Norms” not only refer to the general rules of the International Company Law, but also have Chinese characteristics. They not only guide the current joint-stock system pilot work, but also become the first march for the future introduction of the Company Law. I intend to “regulate” towel on the sponsor of several issues on the pilot. First, the promoter’s meaning. The creation of a company must be conducted in concrete terms by a number of people who are the promoters of the company. Foreign company law generally considers the sponsor to be a person who signs and seals the articles of association. For example, both in Taiwan and Japan, the company law stipulates that the so-called sponsor refers to the person who, as a contributor, is not a signatory to the charter, and may not be a sponsor even if actually participating in the establishment of the company (which means that as long as Signed in the charter, you can have the sponsor’s rights and obligations, regardless of whether or not to participate in the establishment of the company). In view of this, it is too mechanical to sign and seal the charter as the only condition. Moreover, the charter in the establishment of the company has not yet been registered by the competent authorities, there is no third-person effectiveness against the draft is at best a draft in this informal seal of signature and how legal significance? Therefore, some domestic scholars This definition holds the objection. The “norm” uses a different expression from abroad, that is, "company sponsor, refers to the standard