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 7 This question requires candidates to explain the term controlling shareholder, and state the civil liability of the controlling shareholder for his illegal activities causing damage to the company as well as in relation to corporate behaviour and legal liabilities.

(a) In accordance with Article 217 of the Company Law, the term controlling shareholder refers to any shareholder whose equity accounts for 50% or more of the registered capital of a limited liability company, or any shareholder who holds 50% or more of the total amount of share capital of a joint stock company. It also refers to any shareholder, although whose equity or shares is less than 50%, who may have a major impact on the resolutions of the shareholders’ meeting or the shareholders’ general
meeting through his or her voting powers.

(b) In accordance with Article 20 of the Company Law, where the shareholder of a company abuses the independent status of a corporate legal person and limited liability of shareholders to avoid company’s debts and damages the interests of the creditors of the company, the creditors may bring a lawsuit against that shareholder and the company jointly. This kind of legal action is under the doctrine of disregard of corporate personality or piercing the corporate veil.

(c) In accordance with Article 21 of the Company Law, the controlling shareholder of a company shall not, by taking advantage of the affiliate relationship, damage the interests of the company. He shall be liable for any loss or damage to the company.Under such circumstances other shareholders of the company are entitled to bring a lawsuit, in the name of the company and for the interests of the company, against the controlling shareholder if the company refuses or fails to take the necessary legal action. Such a kind of lawsuit against the controlling shareholder, in the name of the company, by other shareholders is in the character of subrogate litigation.

8 This question requires candidates to deal with the legal issues of the transfer of contract and the secured interests under the Property Law and the Contract Law of China.

(a) In accordance with Article 176 of the Property Law, as regards a secured credit involving both guarantees of mortgage and pledge, where the obligor fails to pay its due debts, the obligee shall realise the obligee’s rights according to the relevant contract. In case the contract does not stipulate or merely stipulates an unclear provision, and where the obligor provides his/its own property as the security, the obligee’s rights shall be realised firstly by the security in property. In the present case, Mr Ding provided a pledge of general liability. According to the above provision of law, OAM, as a transferee of the loan agreement and the obligee of the secured credit, shall realise its right firstly by the security in property. Therefore, the defence of Mr Ding should be supported by the court.

(b) In accordance with Article 81 of the Contract Law, if the creditor transfers the rights, the transferee acquires rights affiliated to the creditor’s right, unless the affiliated rights are exclusive for the creditor himself. In the present case, when Industry Bank (as the original creditor) transferred its credit of RMB 20 million yuan to OAM, it did not transfer the right of mortgage to OAM simultaneously. It was obviously against the statutory requirement for the simultaneous transfer of the main credit and affiliated rights. Such a failure caused damage to OAM. Therefore, Industry Bank is the party liable for the debt.

9 This question requires candidates to deal with the rules in relation to the issuance of corporate bonds under the Securities Law.

(a) In accordance with Article 16 of the Securities Law, to issue the corporate bonds publicly one of the following conditions shall be satisfied by the issuer: the accumulated value of the bonds issued shall not exceed 40% of the value of the net assets of the company. In the present case, the net assets of Ronger Properties Joint Stock Co were RMB 80 million yuan and the accumulated value of the bonds issued were RMB 12 million yuan. This means that the bonds issued accounted for 15% of the net assets of the company. Therefore, the maximum amount of the proposed issuance would be RMB 20 million yuan(80m x 40% – 12m).

(b) In accordance with Article 32 of the Securities Law, securities to be offered to unspecific parties with a total face value exceeding RMB 50 million yuan shall be underwritten by an underwriting syndicate. Since the maximum amount of the proposed issuance would be RMB 20 million yuan, Ronger Properties Joint Stock Co could issue the corporate bonds with a form other than that of underwriting syndicate.

(c) In accordance with Article 33 of the Securities Law, the maximum period for any forms of underwriting shall not be more than 90 days.

10 This question requires candidates to deal with the legal issue in relation to the revocation of an action of giving up credit by a debtor before the application of bankruptcy against whom is accepted by the court under the Enterprise Bankruptcy Law of China.

(a) (i) In accordance with Article 31 of the Enterprise Bankruptcy Law, a bankruptcy administrator is entitled to request the court to revoke the act of giving up the creditor’s right. Therefore, Jianshe Co’s act of giving up its creditor’s right was within the category of applicable acts by the bankruptcy administrator for revocation in the process of

(ii) In accordance with Article 31 of the Enterprise Bankruptcy Law, one of the conditions for a bankruptcy administrator to plead for the revocation of such an act is that it takes place within one year before the acceptance the application of bankruptcy by the court. In the present case, although the act of giving up a creditor’s right was within the category of acts that might be revoked by the court, the court should not grant an order to revoke such an act. This is because the act had taken place in August 2009, more than one year before the court accepted the bankruptcy application.

(b) In accordance with Article 35 of the Bankruptcy Law, where the relevant court accepts an application for bankruptcy and finds that the shareholders of the debtor fail to discharge their capital contributions, the bankruptcy administrator shall request that these shareholders make the full capital contributions they have subscribed to, irrespective of the term for capital contributions. Therefore, the bankruptcy administrator shall request that shareholders of Jianshe Co make full capital contributions. The rule of prescription or time limitation is not applicable to the obligation of shareholders to make full capital contributions.