论设立中公司的独立性

通说以民法无权利能力社团的组织特征去解释从事复杂商行为的设立中公司,无疑会使设立中公司承担不能承受之重。就发起人的设立动机而言,其目的是为创设一个承担有限责任的公司,就设立中公司而言,将设立阶段划分为发起人合伙和设立中公司的理由并不充分。设立中公司应当被视为设立阶段的惟一主体。设立中公司具有完全的责任能力并能以自己的财产独立承担设立责任。

On the Independent Liability of a Forming Corporation

The prevailing theory that deems a company in incorporation which has to engage in complicated commercial activities as a social organization that has no civil capacity will undoubtly put a heavy burden on the company in incorporation. In terms of the promoters' motivation, their purpose is to establish a company that will assume limited liabilities. In terms of the company in incorporation, there is no sufficient basis to divide the incorporation process into two processes, i.e. the promoters' partnership process and the company in incorporation process. The company in incorporation shall be deemed as the sole subject during the incorporation process. A company in incorporation shall have full capacity and can independently assume any liabilities in relation to the incorporation with its own assets.