ACCAF4公司法与商法知识点讲解(4)
泽稷网校ACCA F4 公司法要点总结
第一个概念：企业组织形式forms of business organization大家应该在心中明确，企业的范围要远大于公司，包含：●个体（sole trader）●合伙（partnership）●有限责任合伙（limited liability partnerships）●公司（company）公司类型：●Corporations sole（单独法人，政府部门岗位）●Chartered corporations（特许法人，皇室特许）●Statutory corporations（法定法人，议会法案通过形成）●Registered company（注册公司）●Community interest company（社区利益公司，非盈利公司）注册公司（Registered company）又分为：●company无限公司（类似于普通合伙企业）、limited by guarantee（担保公司）、limited by shares（股份有限公司）●Public company（公共公司）——limited by shares（股份有限公司）、listed company（上市公司，可在股票交易市场中发行股票）私营公司与公共公司在股本金、管理者数量、秘书、是否需要审计等方面都存在不同，但是最大的差别是，私营公司仅仅能针对公司既有的investors发行股票但是公共公司则可以对外发行，而publiccompany中的listed company（上市公司）则可以在股票交易市场中发行股票。
母公司与子公司：一般来说母公司将享有子公司的绝对控股权、控制权及投票权，子公司与母公司的管理模式一般来说应保持一致。
【思考】什么是小公司？衡量小公司的标准是什么？是否需要审计？第二个概念：公司的形成doctrine of incorporation定义公司注册成功后，即拥有了独立法人身份——拥有权利也需要履行义务，并且也可以以自己的名义进行法律诉讼。
2014年12月ACCA考试《F4公司法与商法》辅导要点十二
2014年12月ACCA考试《F4公司法与商法》辅导要点十二本文由高顿ACCA整理发布，转载请注明出处11 Discharge, breach of contract and remedies1 Discharge1.1 A contract can be discharged in a number of ways. The method of discharge may amount to a breach of contract and hence give rise to a claim for damages. However, there are other methods of discharging a contract that will not give rise to a breach of contract claim namely discharge by(a) Agreement(b) Performance.1.2 Agreement(a) Agreement means that both parties agree that the contract be discharged. Some contracts provide for discharge by agreement for example by expressly stating that the contract can be discharged by notice.Alternatively:(b) The contract can be discharged by a completely new agreement e.g. where one party agrees to accept a change in the other's performance (a 'variation' agreement). To be binding such agreements themselves must be supported by consideration.1.3 Performance(a) This is the most common way in which a contract is discharged. It is important that performance occurs as without it there will be a breach of contract. It would also be inequitable to allow one party to sue another for breach if he himself has not performed the terms of the contract exactly and completely. This is known as the rule in Cutter v Powell.(b) Sometimes the rule is Cutter v Powell can act harshly and hence some exceptions to the rule have developed for example where non-performance has been caused by the other party.1.4 Breach(a) Contracts can be discharged by fundamental breaches of contract.(b) Breach of condition:(i) Straightforward breach is easy enough to understand. One or both parties are not complying with the conditions of the contract. Remember the injured party may only bring the contract to an end if there has been a breach of condition.(ii) Anticipatory breach is where one party indicates that he does not intend to complete his part of the contract. The innocent party (the claimant) can sue on notice.But claimant can elect to ignore the breach, complete his part of the contract and then sue: White and Carter (Councils) Ltd v McGregorIf the claimant so elects he must complete his part properly or he himself will be liable for breach.Actions for anticipatory breach should be started at once otherwise factors may intervene which mean the contract is automatically discharged (e.g. on outbreak of war that would render the contract illegal).更多ACCA资讯请关注高顿ACCA官网：。
公司法法考知识点
公司法法考知识点一、知识概述《公司法法考知识点》①基本定义：公司法就是规定公司的设立、运营、管理、解散等一系列事情的法律规定。
就好比是公司从“出生”到“死亡”都要遵循的一套规则手册。
②重要程度：在法考里那可是相当重要的。
很多时候商业活动、企业管理等都离不开公司法的规范，在整个法律体系里如同大厦的重要支柱，撑起了商业法律关系这片大屋顶。
③前置知识：得先对基本的民事法律关系有点了解，像什么是法人，什么是债权债务，毕竟公司也是一种法人，里面涉及大量的债权债务关系等。
④应用价值：实际应用场景太多了。
比如想开个小公司，怎么注册，股东们的权利义务怎么分，或者在大公司工作遇到内部股权纠纷等都得靠公司法来定规则。
二、知识体系①知识图谱：公司法在整个法学体系里是商法的重要部分，就像星星座里的一颗很亮的星，与合同法、破产法等其他商法有着千丝万缕的联系。
②关联知识：和民法里的法人制度紧密相连，毕竟公司是一种特殊的法人。
与证券法也有关系，公司要融资上市等就得遵循证券法，而证券法又和公司法里的资本制度、股东权益等有交集。
③重难点分析：- 掌握难度：有一定难度。
因为里面涉及很多复杂的制度，像公司治理结构里股东会、董事会、监事会等的权限规范就很容易混淆。
- 关键点：我觉得理解公司的独立人格这一点很关键，还有资本制度这大块内容。
④考点分析：- 在考试中的重要性：是重点考查内容，分值占比不小。
- 考查方式：有选择、案例分析等。
选择题可能考查个小知识点，像某个情况下股东的表决权怎么算。
案例分析往往会给出一个复杂的公司纠纷场景，让分析各方的权利义务，谁该承担什么责任。
三、详细讲解【理论概念类】①概念辨析：- 公司的概念：简单说公司就是一群人（股东）为了赚钱之类的目的凑到一起，根据法律规定组建起来的一个组织。
它有自己独立的财产，可以独立承担责任。
就像是一个有独立“人格”的超级团队。
- 股东的概念：股东就是往公司里投钱拿股份的人，股东有对公司的所有权权益呢。
公司法 知识点
公司法知识点一、知识概述《公司法知识点》①基本定义：公司法就是规定公司的设立、运营、管理、解散等各种事宜的法律规则大集合。
就好比一个大的游戏规则手册，在这个手册里告诉你开公司怎么开，公司运营的时候老板、员工还有股东都要遵循什么，以及公司要是不干了怎么收尾等。
②重要程度：在商业领域里这可太重要了。
公司是现代商业社会的主要组成部分，要是没有这个法来规范着，那市场就乱套了。
比如说，有人想投资一个公司，要是没有公司法规定股东的权利义务，那他的钱投进去得多没保障，都不知道自己能得多少回报，有没有话语权之类的。
③前置知识：你得知道基本的商业概念，像什么是企业啦，什么是投资这种。
还有基本的权利义务观念，就是你想做一件事，你有什么权利同时又要承担什么义务。
④应用价值：实际中只要跟公司打交道就跟它有关系。
你想开公司，你就得按公司法来设立，一步一步走流程。
如果你在公司里上班，你要知道公司法对员工权益在公司架构里有没有保障。
再宽泛点，如果是跟公司做合作，要了解这个公司是否依法运营，免得卷入不必要的麻烦。
二、知识体系①知识图谱：公司法在整个商业法律体系里那是基石一样的存在。
就像大厦的地基，没有它，上面关于公司的各种法律架构都没法好好建立。
②关联知识：和合同法那联系可大了，公司经营过程中肯定会签订很多合同，这时候就要合同法和公司法一起发挥作用。
会计学也有关，因为公司的财务状况得按照公司法规定向股东公布。
③重难点分析：掌握难度在于它的条款挺复杂的。
比如说公司的治理结构里股东会、董事会、监事会的权限，一不小心就混淆了。
关键点是得明确不同角色在公司里的定位以及他们的权利和义务边界。
④考点分析：在法学考试里可是重点。
经常出现在考查方式上比如给个公司运营中的状况，问是否符合公司法规定，或者叫你解释公司某个机构的权限。
三、详细讲解（理论概念类）①概念辨析：公司法首先对公司的概念定义得很清楚，公司是依法设立的以营利为目的的法人组织。
法人呢，就像是法律里虚构出来的一个人，这个“人”能做很多事，有独立的财产，能以自己的名义签订合同打官司等。
ACCA考试《F4公司法与商法》必备考点(4)
ACCA考试《F4公司法与商法》必备考点(4)本文由高顿ACCA整理发布，转载请注明出处1 Doctrine of judicial precedent1.1 Common law and equity are a body of judge-made laws contained in decisions of the courts called judgements.1.2 Judge – made law or case law is whereby judges follow the decisions of other judges. The doctrine of precedent is sometimes referred to as 'stare decisis': let the decision stand.1.3 For case law to be workable as a source of law it needs to achieve consistency. Various 'rules' have therefore developed to achieve this aim.1.4 ‘Rules’:1.4.1 Only statements of law made by judges can form precedent. In turn these statements must be divided up into ratio decidendi (the reason for the decision) and obiter dicta (other comments).Only the ratio decidendi forms the basis of precedent as it is this reasoning which is vital to his decision. Obiter dicta are statements of general law (or hypothetical situations) which are not necessary for the decision in the case and hence are not binding.1.4.2 As the ratio decidendi of a case stems from specific facts if a precedent is to be followed in a subsequent case the facts of that case must be sufficiently similar.1.4.3 The precedent must have been set by a court capable of creating precedent and not have been overruled.1.5 Hierarchy of the courts:(a) House of Lords – binds all lower courts but not itself (exceptional cases)(b) Court of Appeal – binds all lower courts and itself(c) High CourtJudge sitting alone – binds all lower courts not divisional courtsJudges sitting together – binds all lower courts and divisional courts(d) CrownMagistrates – bind no-one at allCounty1.6 A precedent ceases to be binding if:(i) It has been overruled by statute or EU law or by a higher court.(ii) It can be distinguished on the facts i.e. if the material facts are not the same.1.7 Advantages:(i) Detail.(ii) Flexibility.(iii) Consistency.(iv) Fairness.1.8 Disadvantages:(i) Bulk.(ii) Restricts judicial discretion.(iii) reactive system.(iv) Lack of democratic accountability.1.9 Persuasive authority:These are decisions (e.g. those of commonwealth countries, inferior courts and obiter dicta) which are not binding but may influence the decisions of judges in future cases.更多ACCA资讯请关注高顿ACCA官网：。
ACCA《F4公司法与商法》精选讲义第一章(1)
ACCA《F4公司法与商法》精选讲义第一章(1)本文由高顿ACCA整理发布，转载请注明出处Session 1 The Nature, Source and Purpose of Management AccountingMain contents:1. Data and information2. The managerial processes of planning, decision making and control3. Responsibility accounting4. Management accounting and financing accounting5. Presentation of management information1.1 Data and Information· Data consists of raw materials, which include numbers, letters, symbols, facts, events and transactions, that have been recorded but not yet processed into a form suitable for use.· Information is data which has been processed in such a way that it is meaningful to the person to the person who receives it. （for decision making purpose）The attributes of good information can be identified by the “ACCURATE” as shown below:· Accurate: accurate enough for the purpose· Complete: all the necessary information· Cost- effective: benefit > costs· Understandable: clear and easy to understand· Relevant: relevant to purpose· Accessible: the best way to communicate with the related person· Timely: be available at the right time· Easy to use: by management1.2 The Managerial Process of Planning , Decision Making and ControlInformation for management is likely to be used for planning, control and decision making objectives:An objective is the aim or goal of an organization. A strategy is a possible course of action that might enable an organization or an individual to achieve its objective.Planning:· Planning involved the following two factors:Establishing the objectivesSelecting appropriate strategy to achieve those objectives· The link between structure and strategy （understanding）1）。
2015ACCA《F4公司法与商法》辅导讲义(2)
2015ACCA《F4公司法与商法》辅导讲义(2)本文由高顿ACCA整理发布，转载请注明出处1 Sources of law(a) Common law(b) Equity(c) Statute (legislation) including delegated legislation(d) European Union Law2 Common law and equity2.1 This is a system of law based upon decided cases. Legal rules (initially created by judges when hearing cases) are followed by judges in subsequent like cases.It developed after the Norman Conquest.2.2 Initially only common law rules were derived from cases. The aim of common law was certainty. However various problems within the common law system resulted in the development of another kind of case law called equity. Equity sought to address some of the problems contained in the common law system. Its aim is fairness.2.3 Amongst the common law problems were inadequate remedies, a failure to recognise trusts and a reluctance to allow new causes of action to develop.2.4 At first common law and equity operated as two distinct systems of law with their own independent court and judges. Given that equity is based on fairness however it was eventually decided that in the event of conflict between the two systems equity should prevail.2.5 The two systems have now been merged together. In practice therefore, if you seek a remedy in the courts today, the court will look first to the common law. If the common law can deal with your problem adequately there will be no recourse to equity. If the common law is unable to deal adequately with the problem the court will look to equity.2.6 Equity is therefore referred to as to a supplement to the common law.2.7 The operation of equity is entirely discretionary whereas common law applies automatically.2.8 Maxims:'He who comes to equity must come with clean hands.''Equity does not suffer a wrong to be without a remedy.'更多ACCA资讯请关注高顿ACCA官网：。
ACCAF4公司法与商法知识点讲解(4)
ACCA F4《公司法与商法》知识点讲解（4）1 Human Rights ACT 1998The Human Rights Act imposes a duty in "public authorities" to comply with the European Convention on Human Rights, and allows us to take action in the UK courts for violations of Convention rights.Prior to the Act conventions rights could only be enforced in the European Court of Human Rights in Strasbourg which could be time consuming, expensive and daunting.Now that the convention is part of UK law (HRA98) those rights can now be enforced in UK courts.2 The rights (articles)The main rights are:the right to lifeprohibition of tortureno slavery or forced labourright to liberty and securityright to a fair trialno punishment without law (generally therefore criminal offences should not be retrospective)right to respect for privacy, family lifefreedom of thought, conscience and religionfreedom of expression, assembly and associationright to marryno discrimination in rightsright to free elections.(Note that the Articles are set out in full in your Study Text).3 Impact on interpretation of statutesAs a 'public authority' the courts are required to construe legislation so that – as far as possible – it is compatible with the rights contained within the convention and apply existing common law in a manner that is compatible with convention rights. S2 of the Act requires future courts to take account of previous decisions of the ECHR.If reconciliation with an Act of Parliament is not possible the existing legislation prevails although that may trigger a fast track procedure in the Act requiring Parliament to change existing laws. In such circumstances the court issues a declaration of incompatibility, it is then for the legislature to remedy the situation through new legislation. If the fast track procedure is used this gives ministers the power to alter incompatible parts of any primary legislation by way of statutory instrument.If a court cannot reconcile 'delegated' legislation with the convention it can decide that the legislation does not apply.It may no longer be appropriate for the courts to follow some precedents on the interpretation of statutes which pre date the Act. These may now be reviewed in light of the Act.4 Impact on new legislationBefore the Second Reading of the Bill the Minister responsible must make a statement either that the legislation is compatible with Convention rights, or such a statement cannot be made but the government still wants to proceed. Not all of the Articles can be derogated from. Articles 2,3,4,7 and 14 are absolute rights and cannot be interfered with. In exercising the right of derogation however the member state must be both convinced of the need for derogation and that the response is proportionate to any perceived problem.5 Impact on public authoritiesPublic authorities are Courts and tribunals and any other person whose functions are of a public nature eg Registrar of Companies and government departments such as the DTI.It is unlawful for public authorities to act in a way which is incompatible with a convention right. A person who considers he has beena victim of an unlawful act by that authority may bring proceedings within12 months of the act occurring.The court has power to do as it thinks fit.6 European Court of Human Rights (ECHR)The final source of appeal (after the House of Lords) on human rights issues is the European Court of Human Rights. There is no appeal from the European Court of Human Rights to the European Court of Justice. Decisions of the ECHR must be taken into account when deciding interpretation.NB. Note that new cases on the HRA98 are being decided all the time. The examiner plans to write an article to consider these cases. Keep checking your student accountant for developments.7 Examinability of HRA 98This is an area that the examiner has expressed to be important so be aware of developments that may be referred to in the press.Make sure that you have an appreciation of how HRA 98 may impact on other syllabus areas. For example:。
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ACCA F4《公司法与商法》知识点讲解（4）
1 Human Rights ACT 1998
1.1 The Human Rights Act imposes a duty in "public authorities" to comply with the European Convention on Human Rights, and allows us to take action in the UK courts for violations of Convention rights.
1.2 Prior to the Act conventions rights could only be enforced in the European Court of Human Rights in Strasbourg which could be time consuming, expensive and daunting.
1.3 Now that the convention is part of UK law (HRA98) those rights can now be enforced in UK courts.
2 The rights (articles)
2.1 The main rights are:
2.1.1 the right to life (A.2)
2.1.2 prohibition of torture (A.3)
2.1.3 no slavery or forced labour (A.4)
2.1.4 right to liberty and security (A.5)
2.1.5 right to a fair trial (A.6)
2.1.6 no punishment without law (A.7) (generally therefore criminal offences should not be retrospective)
2.1.7 right to respect for privacy, family life (A.8)
2.1.8 freedom of thought, conscience and religion (A.9)
2.1.9 freedom of expression, assembly and association (A.10/A.11)
right to marry (A.12)
no discrimination in rights (A.14)
right to free elections.
(Note that the Articles are set out in full in your Study Text).
3 Impact on interpretation of statutes
3.1 As a 'public authority' the courts are required to construe legislation so that – as far as possible – it is compatible with the rights contained within the convention and apply existing common law in a manner that is compatible with convention rights. S2 of the Act requires future courts to take account of previous decisions of the ECHR.
If reconciliation with an Act of Parliament is not possible the existing legislation prevails although that may trigger a fast track procedure in the Act requiring Parliament to change existing laws. In such circumstances the court issues a declaration of incompatibility, it is then for the legislature to remedy the situation through new legislation. If the fast track procedure is used this gives ministers the power to alter incompatible parts of any primary legislation by way of statutory instrument.
If a court cannot reconcile 'delegated' legislation with the convention it can decide that the legislation does not apply.
It may no longer be appropriate for the courts to follow some precedents on the interpretation of statutes which pre date the Act. These may now be reviewed in light of the Act.
4 Impact on new legislation
4.1 Before the Second Reading of the Bill the Minister responsible must make a statement either that the legislation is compatible with Convention rights, or such a statement cannot be made but the government still wants to proceed. Not all of the Articles can be derogated from. Articles 2,3,4,7 and 14 are absolute rights and cannot be interfered with. In exercising the right of derogation however the member state must be both convinced of the need for derogation and that the response is proportionate to any perceived problem.
5 Impact on public authorities
5.1 Public authorities are Courts and tribunals and any other person whose functions are of a public nature eg Registrar of Companies and government departments such as the DTI.
5.2 It is unlawful for public authorities to act in a way which is incompatible with a convention right. A person who considers he has been
a victim of an unlawful act by that authority may bring proceedings within
12 months of the act occurring.
5.3 The court has power to do as it thinks fit.
6 European Court of Human Rights (ECHR)
6.1 The final source of appeal (after the House of Lords) on human rights issues is the European Court of Human Rights. There is no appeal from the European Court of Human Rights to the European Court of Justice. Decisions of the ECHR must be taken into account when deciding interpretation.
NB. Note that new cases on the HRA98 are being decided all the time. The examiner plans to write an article to consider these cases. Keep checking your student accountant for developments.
7 Examinability of HRA 98
This is an area that the examiner has expressed to be important so be aware of developments that may be referred to in the press.
Make sure that you have an appreciation of how HRA 98 may impact on other syllabus areas. For example:。