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5 In relation to the Company Law of China:
(a) describe TWO kinds of illegal activities committed by a director or a senior executive, relevant to the use of the funds of a company, which will damage the rights and interests of the company; (4 marks)
(b) explain the conditions to be met for a shareholder of a stock company who intends, in their own name, to protect the interests of the stock company due to a director or a senior executive damaging the interests of the company.
答案：
5 This question requires candidates to state the various illegal activities, relevant to the use of the funds of a company, committed by a director or a senior executive of a company which will damage the interest of the company and the conditions to be satisfied for a shareholder of a stock company to protect the interests of the company under the Company Law.
(a) In accordance with Article 149 of the Company Law, the following activities, relevant to the use of the funds of a company, committed by a director or a senior executive are illegal and will damage the interests of a company:
(i) misapproriating the company’s funds;
(ii) depositing the company’s funds in their own personal accounts or in personal accounts of other individuals;
(iii) in violation of the company’s articles of association and without the consent of the shareholders’ meeting or the board of directors, lending company’s funds to others or using the company’s property to provide guarantee for others.
Note: Candidates were only required to describe TWO kinds of illegal activities.
(b) In accordance with Article 152 of the Company Law, the following conditions shall be met where a shareholder of a stock company intends to protect the interests of the company due to a director’s or a senior executive’s damaging of the interests of the company:
(i) the shareholder(s) shall hold, individually or jointly, 1% or more of the company’s shares for no less than 180 consecutive days;
(ii) the said shareholder(s) have requested, in writing, the supervisory board to bring a lawsuit against the relevant persons before the court;
(iii) the supervisory board refused to file such a lawsuit or failed to file a lawsuit within 30 days upon its receipt of such request.
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