2010年12月ACCA考试考官报告(F4)(5)

　　问题九要求考生处理公司法下与存款规定和法律补救措施相关的法律问题。问题十需要考生处理有关决议批准合并方案的表决要求、信息披露的要求以及处理目标公司债务的方法等法律问题。

Question Nine
This question required candidates to deal with the legal issues in relation to the rules of deposit and the legal remedies under the Company Law.

Part (a) of this question required candidates to explain the legal nature of the deposit given to Gas Company,and state whether a claim for a refund of twice the amount of the deposit should be supported.With respect to the nature of deposit as a guarantee for performing the contract,most of candidates gave a correct answer,even though some of them failed use an accurate legal term to describe the term “guarantee”.If candidates were able to give a correct judgement as to the legal nature of deposit,logically they could give a correct answer as to the claim for a refund of twice the amount of the deposit.Since Gas Company failed to supply the natural gas under the contract,it was a breaching party and should be liable for such breach.

However,some candidates held that the claim should not be supported,as Yaowa Company intended further to request for the specific performance of the supply contract.Obviously,it was a misunderstanding of the rules regarding deposit and legal liability for breach of contract.The refund twice the amount of the deposit is a form of liability for a breaching party to bear if it breaches a contract.Due to Gas Company’s short supply or sudden stop providing natural gas,Yaowa Company suffered a lot.Therefore,Yaowa was entitled to claim for the refund twice the amount of deposit.Unless otherwise provided for in the contract,Yaowa Company’s claim for the refund twice did not constitute a statutory obstacle for its claim for the specific performance of contract.

Part (b) was relevant to the specific performance as a form of legal remedy.According to the Contract Law,the party who fails to discharge its contractual obligations shall be liable for the breach of contract in various forms,such as specific performance of contract,adopting remedial measures or making compensation for losses,etc.Furthermore,according to Article 110 of the Contract Law,the party who suffered losses due to the other party’s breach of non-monetary obligations shall be entitled to request for specific performance of the contract,unless under the particular circumstances as provided for by law.In this case Gas Company failed to discharge its obligation to supply certain quantity of natural gas daily,such a breach was a non-monetary breach in nature.In addition,the full supply of gas was also a substantive condition for Yaowa Company to carry out its business operations.Yaowa Company,to some extent,was able to find other substitute supplier for its operation.Hence,the request for specific performance should be supported by the court.

The common errors of this part included:
•Failing to give a correct determination as to the claim for the specific performance;
•Failing to state the non-monetary breach of contract being a condition for the adoption of specific performance;
•Failing to understand the relations between the claim for a refund twice of the deposit and the claim for specific performance.

Question Ten
This question required candidates to deal with the legal issue concerning the voting requirement for a resolution to approve the merger proposal,the requirement for disclosure of information and the way to deal with the debts of the target company.
This question required candidates to have some basic knowledge of the Company Law.Candidates did gain marks as expected.

In Part (a),candidates were required to state the voting requirement by the general shareholders’ meeting.Since the merger transaction involved in an amount of money exceeding 30% of the total amount of its assets within one year,this proposal should be resolved at a general shareholders’ meeting and adopted by two-thirds of the voting rights held by the shareholders attending the meeting.Most of candidates were able to point out this statutory requirement for a resolution of the general shareholders’ meeting.

Part (b) of this question was relevant to the disclosure requirement for the parties that were involved in a merger transaction.According to the relevant provisions of the Company Law,the relevant companies should inform its creditors of the intended merger plan within 10 days following the date on which the merger resolution is adopted by its general shareholders’ meeting,make announcement in newspaper within 30 days.Most of candidates were able to answer this part of question correctly with the accurate days prescribed by the law.

Common errors of this part included:
•Failing to state either the notice to the creditors or the announcement in the newspaper;
•Failing to give the accurate time limit for the parties to issue notice to its creditors and the announcement in local newspaper.

In Part (c),candidates were required to state how to deal with Dahua Company’s debts owed to the electricity plant.This question was on basic knowledge of company law.Since the merger took a form of absorbing Dahua Company,the electricity plant (the creditor of Dahua Company) might request Dahua to settle the debts or provide a guarantee before the merger plan to be executed; it might also request Kingmart Company to bear Dahua Company’s debts due after the completion of the merger.Most of candidates answered this part of question satisfactorily.
Even though the performances of this part were quite satisfactory,there was room to improve.For example,some candidates merely indicated that the electricity plant might request Kingmart Company to bear Dahua Company’s debts,omitting another form as above-mentioned.