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BBUS 2103
COMPANY LAW
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BBUS 2103
Table of contents
Page
1.0 Introduction
14
17
5.0 Conclusion
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6.0 References
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1.0 Introduction
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1.1 Business Entities
No entrepreneur can deny that the growing business challenges in the new millennium. The
business covers all activities and businesses that provide goods and services necessary for an
economic system (M.B. Muda et. al., m.s 3).
The success of a business is strongly influenced by the type of entity chosen by a dealer.
Unfortunately, most traders do not really realize and understand the importance of business
entities the right or correct.
1.2 Definition of Business Entities
The business entity is a business entity that has its own function (P.S. Young et.al., M: S 28).
Therefore, the business can be classified based on the form of business ownership, business
activities are carried out, the industry sector in which the business operates, the type of output
that is published and marketed as well as business levels in the industry.
Before forms are described in more business, better understand some of the basic concepts of
business first. These include: i.
Entrepreneurs who venture into businesses often face a variety of risks, especially businesses that
have unlimited liability. Business liability is liability and responsibility that must be shouldered
by businesses from now (the current period) until the future before the liability is settled at a
predetermined time period (Zumilah Zainalaludin, M: S 31). Basically, liability business is
divided into two main types, namely limited liability and unlimited liability.
Limited liability is the liability limited to the amount of business investment has been invested in
the business in question. If the business owner is not able to explain all the liabilities of the
business when his business went bankrupt (failed), then the business owner's personal assets will
not be directly involved in settling the liabilities of the business. This means that business owners
limited liability only will lose the total capital invested in the business only for the purpose of
business liability retire earlier. Alone business, public business or a business partnership can be
registered as a limited liability business. Business name alone and the limited liability
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partnership must end with the word "PT. Bhd. "Or" Bhd. "Example: Addison Wesley Longman
Bhd. Public business should also show the words "PLC" at the end of the business name.
Example: Olympia Plc., Tanjong Plc.
Business owners who have unlimited liability involving personal assets to settle liabilities in a
business if business experience something unfortunate. This means that business liability is not
limited to the amount of investment the owners have invested in the business in question.
Example: Mariah Carey, Shops Cheong Fatt.
ii.
Countries that adopt the system of mixed economy such as Malaysia and Britain have private
businesses as well as public business.
Private business (private enterprise) refers to a business that is owned and operated by private
individuals (some of the public) that are usually for profit. Alone business entities carrying out
various business activities. Companies and corporate business are business entities that fall into
this category. Example: XYZ Barber Shop, Public Bank Berhad.
Business areas (public enterprise) refers to a business entity owned by the state (all of the
public). Business areas administered by the central government or local governments. Business
areas often serve as the implementing agency of public policies and the government's objective
was purely social goals. Example: The Road Transport Department, State Development
Corporation.
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b) Partnership
c) Limited Company (SDN. BHD. or Sendirian Berhad or BHD. or Berhad)
d) Foreign Companies
e) Limited Liability Partnership (LLP)
1.2.1
Like many other countries out there, the Sole Proprietorship business entity in Malaysia is owned
solely by one individual, as his/her liability is unlimited. Unlimited liability means if a business
fails or is declared bankrupt, creditors can sue the sole proprietors owner for all debts owed to
respective merchants. This means personal assets, personal income and employment income are
all liable.
1.2.2
Partnership
The Partnership business entity is a joint-entity holder with two or more persons to carry out a
legal business in Malaysia. The Companies Commission of Malaysia requires that partnership
entities must comprise of at least two (2) members and a maximum twenty (20) members.
Partners in a partnership business entities are also bounded by unlimited liability.
1.2.3
Sendirian Berhad (SDN BHD) is a private limited company, where it prohibits any invitation to
the public to subscribe to any of its shares, deposit money with the company for investment or
subscription. Minimum members in a private limited company is two (2) and maximum is fifty
(50).
Berhad (BHD) is a public limited company where its shares can be offered to the public for fixed
periods and any other forms of subscription. The minimum amount of members (shareholders)
are TWO (2) and maximum of unlimited amount of members.
Limited by Shares
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ii.
Limited by Guarantee
iii.
1.2.4
Foreign companies
ii.
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Forms of Business Ownership
One basis for classifying a business is the ownership of the business itself. Business ownership
perspective of the owner or sole proprietor. There are four forms of business ownership that is a
sole proprietor, partnerships, companies / corporations and cooperatives. Each form of business
ownership that the earlier features, strengths and weaknesses.
A. Sole (Sole Proprietor / Trader)
Business forms such as grocery stores, mini-markets, stalls most numerous in our country,
Malaysia. The main characteristics of this business are:
i.
ii.
iii.
The business owner must register the business with the Registrar of
Business. Business registration can be made by using the owner's name as
Ahmad Kamal Shops or business name such as Pasar Mini Shorty Mille.
iv.
ii.
iii.
iv.
Business owners get more satisfaction for all profit and loss dependents, provide personal
service to customers.
v.
Income tax for individuals and businesses do not have audited accounts as reported to the
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Sole proprietorship also has some drawbacks. Among the weaknesses are:
i.
Business owner's personal assets are at high risk because these businesses form unlimited
liability.
ii.
Capital, ideas and management skills make it difficult for business owners limited
commercial development.
iii.
Long working lives of business owners and non-free for a long vacation.
B. Partnership (Partnership)
Business partnership is an extension of a single business. This form of business combination is
formed and operated by two or more persons with the aim of obtaining profits. Owners known as
a business partner. There are several types of business partners. Among them are:
i.
ii.
iii.
iv.
General Partner
contribute capital
Partner Limited
contribute capital
contribute capital
Partner Nominal
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ii.
Total profit attributable to all business partners based on conditions / capital as stated in
Article Partnership.
iii.
At least two of the owners but not more than 20 persons of ordinary business, 10 people
for the bank, the number of partners is not limited to the professional field.
iv.
Registered with the Registrar of Business (ROB). Can register a business partnership
with a business name or partners.
v.
vi.
vii.
Business partnerships are not taxable businesses. The partners need to pay personal
income tax.
ii.
Merging ideas, particularly in the early stages of setting up a partnership. The ability to
think of the idea that many partners can give confidence to the advantages of a
partnership for dealing with competitors existing in the market.
iii.
Can mobilize the energy, skills and expertise that are different. Discussion and
specialization can take place between partners.
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iv.
Easy to get financial resources, especially from financial institutions. The bank or finance
company (Finance) believe that the public partner to facilitate business partnerships to
settle its obligations.
v.
Ability to develop the business. With sufficient capital as a result of the contribution of
equity partners, a partnership can seize business opportunities and develop business with
ease.
vi.
Business partnerships are not taxable businesses. Based on the profit earned, a business
partner of each partnership are required by law to pay personal income tax to the Inland
Revenue Board.
Liability / Liability unlimited. All business partners unlimited liability partnership unless
limited partners. This means that if the partnership had to go out of business, the creditor
may claim debt from the personal assets of the business partner.
ii.
iii.
The existence of the partnership did not last. If a partner withdraws from the partnership
business, death, insanity or is declared bankrupt, then the partnership is dissolved by
itself. If partners want to pursue other business partnership, they have to register a
business partnership with the Office of the Registrar of Business (ROB).
iv.
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C. Corporate Corporation
Limited Company (SDN. BHD. or Sendirian Berhad or BHD. or Berhad)
Corporate Corporation is a form of business set up under the force of the law (Companies Act)
and registered by the Registrar of Companies. This means corporations registered may conduct
business activities, own or sell property, borrow money, and acted upon by the court and make
any agreement with any organization (Zumilah Zainalaludin, 1999, M: S 40).
Features Form Corporate Corporation
There are three types of business corporations which limited companies (private), public
companies, and statutory bodies. In addition, corporations can also be classified into a limited
company or an unlimited company. Limited companies, regardless of limited company (private)
or public company, divided into a company limited by guarantee, a company limited by shares
and a company limited by guarantee and stock.
i.
Shares of limited companies can be traded but not done openly in the market.
Shareholders who own 51% or more of the total ordinary shares of private limited
companies, the right to control the companies concerned.
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ii.
A public limited company can be recognized by the word "Berhad" / Bhd. At the
end of the company name. There are two types of public limited companies which
are listed on stock exchanges such as the Kuala Lumpur Stock Exchange (KLSE)
and unlisted public companies.
Public limited company Capital raised through the sale of shares and bonds to the
public.
The shareholders of public limited companies free to buy and sell shares on the
stock market (KLSE). This means the transfer of shares does not require the
consent of other shareholders in the company.
The minimum number of shareholders is 2 and can exceed 50 people. The number
of shareholders is dependent on the number of shares held by members of the
company and the type of shares issued.
iii.
iv.
Business owners have limited liability to total capital invested in the business.
Statutory Bodies
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Inland Revenue Board (IRB), University Malaya (UM) and so on. Shares of
statutory bodies manner than has been sold to the general public.
Advantage Corporate Corporation
Owners have limited liability to the amount of capital invested.
A clear legal status and must be followed exactly. Shareholders are protected by law.
Large Capital facilitate business growth.
Forms of business corporations is more stable because it is a separate entity with business
owners.
Business management in corporations more efficient because it is managed by a professional
management team.
Weakness Corporate Business Corporation
Corporations operation controlled by strict laws.
Management of corporations controlled by the board of directors and non-business owners.
Management and business owners especially public companies separated. Waste and abuse of
power possible and easy to apply.
Taxes levied on corporations are higher than other forms of business. Taxes consist of taxes on
undistributed profits of companies and the tax on dividends earned by each shareholder.
The company's financial statements must be audited by a qualified auditor and distributed to
shareholders.
Annual report of corporations to be submitted to the Registrar of Companies and shareholders
The establishment and registration of corporations more difficult and complex than businesses
are sole proprietorships and partnerships.
iv.
Cooperative
Cooperative is a business entity formed voluntarily for the welfare of its members on the basis of
cooperation and mutual help. There are two forms of cooperatives, namely cooperatives whose
membership is restricted to a certain type of work, areas and backgrounds such as Cooperative
Teachers Peninsular Malaysia, the National Cooperative Union of Teaching Profession (MPIC)
and cooperatives whose membership is free as Housing Cooperative, Consumer Cooperative.
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Features Cooperative
i.
Cooperative capital acquired through fees either monthly fees or annual fees paid and the
shares purchased by members.
ii.
Every member of the cooperative is required to buy at least 100 shares but not more than
one-fifth of the total capital of the cooperative.
iii.
Every member of society has only one vote in any co-operative appointment.
iv.
v.
vi.
vii.
Profit attributable to members of the cooperative, either once or twice a year, in the form
of dividends or bonuses, or both.
Advantages Cooperative
i.
Concern for the welfare and interests of the members and not only for profit.
ii.
Mobilize the energy, capital and gather people interested in improving their economic
position through the concept of cooperation.
Disadvantages Cooperative
i.
ii.
iii.
Cooperative financial statements must be audited by the internal auditor and certified
auditor.
iv.
Annual general meeting, which was attended by many members as possible could
undermine the cooperative management system.
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Thirdly, a company, as a separate legal entity, can enter into contractual relations with the
shareholder or director due to they are company controlling members. This can be illustrated in
the case of Lee v Lees Air Farming Ltd (1961) AC12. This case shows that the company could
enter into an employment contract with Mr. Lee. Lord Morrison as he is a major shareholder of a
company.
Lastly, employer in a company, as a separate legal entity, owes an obligation to provide a safe
system of work with no matter of the injured employees may also be a director or controller of
the company. For example, the High Court was make a decision in the Andar Transport Pty Ltd v
Brambles Ltd (2004) 206 ALR 387; (2004) HCA 28. This case illustrates the consequences
arising from the intersection between legal principles in corporate law and the employers duty
of care to provide a safe system of work arising under employment law.
Therefore recommendations are made to the act to prevent injustice brought due to the
amendment.
Court have to be careful in screening applicants qualification to make sure they have fulfilled s
181A (4) (a) until (d) regarding the complaint prior to granting court leave. This will require the
complainants to ensure they comply to s 181B (2) which offer 30 day writing notice regarding
the application. A lot of money, effort and time could be saved when it is identified earlier that
the applicant failed requirement.
Another solution is to be strict with the applicant to identify whether or not their application is
intended to be good and aimed at companys best interest. Applicants may have bad intentions
such as aiming for collateral benefit in the instance court leave in approved. Court also can
acquire applicants to show physical evidence in the context of minority fraudulent or evidence
that directors involved in oppressive manner. In the instance no concrete evidence is presented,
court may not grant court leave in favour of the applicant.
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5.0 Conclusion
This report is a very effective conduct to study a problem. It helps us to know a company
formed. This report makes us possible to find out new things and ideas and make accessible us
accurate and consistent information which can be used as basis for making decision for
immediate and future actions. All the way through the report we can reach the solution of an
exacting difficulty.
The rise of the modern state system was closely related to changes in political thought, especially
concerning the changing understanding of legitimate state power. Early modern defenders of
absolutism such as Thomas Hobbes and Jean Bodin undermined the doctrine of the divine right
of kings by arguing that the power of kings should be justified by reference to the people.
Hobbes in particular went further and argued that political power should be justified with
reference to the individual, not just to the people understood collectively. Both Hobbes and
Bodin thought they were defending the power of kings, not advocating democracy, but their
arguments about the nature of sovereignty were fiercely resisted by more traditional defenders of
the power of kings, like Sir Robert Filmer in England, who thought that such defenses ultimately
opened the way to more democratic claims.
These and other early thinkers introduced two important concepts in order to justify sovereign
power: the idea of a state of nature and the idea of a social contract. The first concept describes
an imagined situation in which the state understood as a centralized, coercive power does not
exist, and human beings have all their natural rights and powers; the second describes the
conditions under which a voluntary agreement could take human beings out of the state of nature
and into a state of civil society.
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6.0 Reference
1. Langford, R. (2011). The Duty of Directors to Act Bona Fide in the Interests of the
Company: A Positive Fiduciary Duty? Australia and the UK Compared. J Corp Law
Studies, 11(1), pp.215-242.
2. Lipton, P. and Herzberg, A. (2001). Understanding company law. Sydney: Lawbook Co.
3. Mason, H. and OHair, J. (1973). Australian company law. Sydney: McGraw-Hill.
4. Paterson, W. and Ednie, H. (1962). Australian company law. Sydney: Butterworths.
5. Quilter, M. (2009). The company law notes. Pyrmont, N.S.W.: Thomson Reuters.
6. Ramsay, I. (1997). Corporate governance and the duties of company directors.
Melbourne: University of Melbourne, Centre for Corporate Law & Securities Regulation.
7. Sealy, L. and Rider, B. (1998). The realm of company law. London: Kluwer Law
International.
8. https://pengajianperniagaan.wordpress.com/bab-1/bab-1/1-3-entiti-perniagaan/
9. http://www.academia.edu/6672487/BBUS2103_-_Tugasan_Undang_-_Undang_Syarikat
10. http://www.uniassignment.com/essay-samples/law/the-separate-legal-entity-concept-lawcompany-business-partnership-essay.php
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