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 4 This question requires candidates to explain the terms withdrawal of an offer and revocation of an offer, make a comparison on these two legal terms and state the formation of a contract if an offer and the withdrawal of the offer reach the offeree simultaneously under the Contract Law of China.

(a) In accordance with Article 17 of the Contract Law, the term withdrawal of an offer refers to such an expression made by an offeror to the offeree to withdraw an offer before or at the same time as the arrival of the offer.

(b) In accordance with Article 18 of the Contract Law, the term revocation of an offer refers to such an expression of invalidating the offer made by the offeror to the offeree after the arrival of the offer but before the offeree has despatched an acceptance.

(c) The major differences between withdrawal of an offer and revocation of an offer are the following:

(i) Withdrawal of an offer can only be made before or at the same time as arrival of an offer; while revocation takes place at the time when an offer has already reached the offeree but this party has not yet despatched an acceptance. The key difference between the two terms rests with the time when the expression not to set up a contractual relationship by the offeror reaches the offeree. Therefore, if such an expression reaches the offeree later than that of the offer, the offer
cannot be withdrawn.

(ii) Even if an offer is an irrevocable one, it may be withdrawn by the offeror through an expression of withdrawal of the offer. On the other hand, an offer cannot be revoked by the offeror if the offer is an irrevocable one or if it meets the conditions of irrevocability as set forth in the law. The circumstances of irrevocability of an offer include that the offer indicates itself to be irrevocable or sets forth a time limit for acceptance.

(d) In accordance with Article 17 of the Contract Law, an offer may be withdrawn if the notice of withdrawal reaches the offeree before or at the same time as the offer. Therefore, no contract is formed if an offer and a notice for the withdrawal of the offer reach the offeree simultaneously.

5 This question requires candidates to explain the major rights of a shareholder of a limited liability company under the Company Law of China.

A shareholder of a limited liability company shall have the following major rights:

(a) According to Article 34 of the Company Law a shareholder shall have the right to look up and copy the articles of association, the minutes of shareholders’ meetings, the resolutions of the meetings of the board of directors and the supervisory board, as well as the financial statements of the company. A shareholder may also request to look up the accounting books of the company.

(b) According to Article 35 of the Company Law a shareholder shall have the right to draw dividends in proportion to his equity in the company. Where a company increases capital, the shareholder as one of the existing shareholders shall have the priority to subscribe for new shares in proportion to his equity in the registered capital. A shareholder shall also have the right of priority if other shareholders transfer their equity to a third party.

(c) According to Article 37 of the Company Law a shareholder shall have the right to attend the shareholders’ meeting, according to Article 42 a shareholder should be notified 15 days before the shareholders’ meeting, and according to Article 43 a shareholder shall have the right to vote for any substantive matters of the company.

(d) According to Article 187 of the Company Law a shareholder shall have the right to receive the distribution of the remaining assets of the company in proportion to the shareholder’s equity after the completion of liquidation.

6 This question requires candidates to state various circumstances under which a creditors’ meeting shall be held, and the major functions and duties of it under the Enterprise Bankruptcy Law.

(a) In accordance with Article 67 of the Enterprise Bankruptcy Law, the first creditors’ meeting shall be held by the people’s court within 15 days of the expiration of the term for declaration of creditor’s right. Subsequent creditors’ meetings may be held when the people’s court deems it necessary. A creditors’ meeting shall also be held under the circumstances where the bankruptcy administrator, the creditors’ committee or any creditor representing one-quarter or more of the total creditor’s right
proposes the chairman of the creditors’ meeting to hold one.

(b) In accordance with Article 68 of the Enterprise Bankruptcy Law, the creditors’ committee shall perform the following functions
and duties: