Beruflich Dokumente
Kultur Dokumente
I. HISTORICAL BACKGROUND OF PHILIPPINE CORPORATE LAW Corporation Law/Act No. 1459 first corporate statute - April 1, 1906 - Sort of codification of American Corporate Law Corporation Code/Batas Pambansa Blg. 68 - May 1, 1980 - Adopted various corporate doctrines enunciated by the Supreme Court under the old corporation law - Clarified the obligations of corporate directors and officers; expressed in statutory language established principles and doctrines and provided for a chapter on close corporations II. CONCEPT AND ATTRIBUTES OF A CORPORATION CORPORATION (Sec 2, BP 68) - is an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence. ATTRIBUTES OF A CORPORATION 1) It is an artificial being with separate and distinct personality 2) It is created by operation of law 3) It enjoys the right of succession 4) It has the powers, attributes and properties expressly authorized by law or incident to its existence ARTIFICIAL BEING legal fiction - A juridical person capable of having rights and obligations, with a personality separate and distinct from its members or stockholders. CONSEQUENCES OF SEPARATE PERSONALITY a) Property entitled to own properties in its own name and its properties are not the properties of its stockholders, directors and officers - the properties of its stockholders, directors and officers are not the properties of the corporation - the interest of the stockholders over the properties of the corporation is merely inchoate. b) Obligations can incur obligations and its obligations are not the obligations of its stockholders, directors and officers Obligations of the stockholders, directors and officers are not the obligations of the corporation.
c) Rights rights belonging to the corporation cannot be invoked by the stockholders even if the latter owns substantial majority of the shares in that corporation and rights of the stockholders, directors and officers cannot be invoked by the corporation. d) Constitutional Rights corporations are entitled to certain constitutional rights (rights against unreasonable searches and seizure) - Considered a person under the due process clause - Not entitled to certain constitutional right not only because it is an artificial being but also because it is a mere creature of law e) Torts civilly liable in the same manner as natural persons for torts, because generally speaking, the rules governing the liability of a principal or master for a tort committed by an agent or servant are the same whether the principal or master be a natural person or a corporation, and whether the servant or agent be a natural or artificial person. That a principal or master is liable for every tort which he expressly directs or authorizes, is just as true of a corporation as a natural person. - Liable when act was committed by the officer or agent under express direction or authority from the stockholders or members acting as a body or generally from the directors as the governing body f) Nationality (Tests) 1. Incorporation test Determined by the state of incorporation, regardless of the nationality of the stockholders. 2. Domiciliary test Determined by the principal place of business of the corporation. 3. Control test Determined by the nationality of the controlling stockholders or members. This test is applied in times of war. 4. Grandfather rule Nationality is attributed to the percentage of equity in the corporation used in nationalized or partly nationalized area.
TESTS IN DETERMINING APPLICABILITY OF THE PIERCING THE VEIL OF CORPORATE ENTITY 1) Fraud test (When corporate fiction used to justify a wrong, protect fraud of defend crime) 2) Control test 3) Alterego or instrumentality test (or conduit cases) 4) Public convenience or objective test 5) Equity cases/test WHEN PIERCING THE VEIL DOCTRINE IS NOT APPLICABLE (a) Piercing the veil of corporate fiction is remedy of last resort and is not available when other remedies are still available. (b) Piercing is not allowed unless the remedy sought is to make the officer or another corporation peculiarly liable for corporate debts. (c) Piercing is not available when the personal obligations of an individual are sought to be enforced against the corporation.
Succession
CLASSIFICATION OF PRIVATE CORPORATIONS As to ORGANIZERS 1) Public by State only 2) Private by private persons alone or with the State As to FUNCTION 1) Public government of a portion of a State 2) Private usually for profit-making functions As to GOVERNING LAW 1) Public Special Laws and Local Government Code 2) Private Law on Private Corporations As to LEGAL STATUS 1) De Jure corporation organized in accordance with law 2) De Facto a corporation where there exists a flaw in its incorporation As to EXISTENCE OF STOCKS 1) Stock Corporation a corporation in which capital stock is divided into shares and is authorized to distribute holders thereof and such shares dividends or allotments of the surplus profits on the basis of the shares held 2) Non-stock Corporation a corporation which does not issue stocks and does not distribute dividends to their members
REQUISITES OF A CREATION OF A CORPORATION 1) The existence of a valid law under which it may be incorporated 2) Actual use or exercise in good faith of the corporate powers 3) Issuance of a certificate of incorporation by the SEC as a minimum requirement of continued good faith CORPORATION BY ESTOPPEL one which in reality is not a corporation, either de jure or de facto, because it is so defectively formed, but is considered a corporations in relation to those only who, by reason of theirs acts or admissions, are precluded from asserting that it is not a corporation. CORPORATION BR PRESCRIPTION - one which has exercised corporate powers for an indefinite period without interference on the part of the sovereign power and which by fiction of law, is given the status of a corporation ECCLESIASTICAL OR RELIGIOUS CORPORATION - one organized for religious purpose OPEN CORPORATION - one which is open to any person who may which to become a stockholder or member thereto
TREASURERS AFFIDAVIT - The Securities and Exchange Commission shall not accept for filing any certificate of increase of capital stock unless accompanied by the sworn statement of the treasurer of the corporation lawfully holding office at the time of the filing of the certificate, showing that at least twentyfive (25%) percent of such increased capital stock (should be understood as proposed increaseCampos) has been subscribed and that at least twenty-five (25%) percent of the amount subscribed has been paid either in actual cash to the corporation or that there has been transferred to the corporation property the valuation of which is equal to twenty-five (25%) percent of the subscription. AUTHORIZED CAPITAL STOCK the amount fixed in the articles of incorporation to be subscribed and paid by the stockholders. SUBSCRIBED CAPITAL that portion of the authorized capital stock that is covered by subscription agreements whether fully paid or not. PAID-UP CAPITAL the portion of the authorized capital stock which has been subscribed and actually paid. OUTSTANDING CAPITAL STOCK the total shares of stock issued to subscribers or stockholders, whether or not fully or partially paid except treasury shares so long as there is a binding subscription agreement. CAPITAL properties and assets of the corporation that are used for its business or operation. GROUNDS FOR REJECTION OF THE AOI 1) If such is not substantially in accordance with the form prescribed 2) The purpose/s of the corporation are patently unconstitutional, illegal, immoral, or contrary to government rules and regulations 3) The treasurers affidavit concerning the amount of capital stock subscribed and/or paid is false 4) The required percentage of ownership of the capital stock to be owned by Filipino citizens has not been complied with. COMMENCEMENT OF CORPORATE EXISTENCE - A private corporation formed or organized under this Code commences to have corporate existence and juridical personality and is deemed incorporated from the date the Securities and Exchange Commission issues a certificate of incorporation under its official seal; and thereupon the incorporators, stockholders/members and their
Founders those shares classified as such in AOI, which are given in certain rights and privileges not enjoyed by the owners of other stocks. TREASURY shares of stocks which have been issued and fully paid for, but subsequently reacquired by the issuing corporation by purchase, redemption, donation or through some other lawful means. - May again be disposed for a reasonable price fixed by the BOD
ADOPTION OF BY-LAWS - Every corporation formed under this code must within 1 month after receipt of official notice of the issuance of its certificate of incorporation by the SEC adopt a code of by-laws for its government not inconsistent with this code. May be adopted and filed prior to incorporation, in such case, shall be approved and signed by all incorporators submitted to SEC together with AOI EFFECT OF NON-FILING WITHIN THE PRESCRIBED PERIOD - The Supreme Court held that although the Corporation Code requires the filing of by-laws within one month after the issuance of the Certificate of Incorporation, it does not expressly provide for the consequences of non-filing within the said period. Failure to file the by-laws within that period does not imply the "demise" of the corporation. By-laws may be required by law for an orderly governance and management of corporations but they are not essential to corporate birth. Therefore, failure to file them within the period required by law by no means tolls the automatic dissolution of a corporation (Loyola Grand Villas Homeowners Assn v. CA). CONTENTS OF BY-LAWS a) The time, place and manner of calling and conducting regular or special meetings of the directors or trustees; b) The time and manner of calling and conducting regular or special meetings of the stockholders or members; c) The required quorum in meetings of stockholders or members and the manner of voting therein; d) The form for proxies of stockholders and members and the manner of voting them; By laws may not prohibit the use of proxies