2010年12月ACCA考試考官報告(F4)(3)

　　具體意見：問題五要求考生列出對于一般有限責任公司、獨資有限責任公司以及國有獨資企業(yè)股東的基本規(guī)則，同時考生也要指出這三種有限責任公司對資本的要求。問題六要求說明法院受理破產(chǎn)申請時，下列三種司法行為的法律效力：對債務人的資產(chǎn)保全措施、對債務人的強制執(zhí)行程序和對債務人的未決訴訟。

Question Five
This question required candidates to state the basic rules regarding the shareholders of a general limited liability company and a sole-person limited liability company,as well as a wholly state-owned company.Candidates were also to state the requirements for capital for these three kinds of limited liability companies.

As a whole,answers to this question were satisfactory.Most of candidates were able to answer the basic rules regarding the shareholders and the capital requirements for three kinds of limited liability companies.

Common errors for this question included:
•Failing to state accurately the number of shareholders of a general limited liability company;
•Failing to state the capital requirements for three kinds of limited liability companies.

Question Six
This question required candidates to state the legal effect on the following three kinds of judiciary actions when a court accepts an application for bankruptcy:the preservative measures against the assets of the debtor,the enforcement procedure against the debtor and the pending legal actions against the debtor.

It is known to everyone when a court accepts an application for bankruptcy,this judiciary action will give rise various legal effects on the debtor and its creditors,as well as on the other procedures of court (judiciary actions).It means that the acceptance for bankruptcy of an enterprise will have some direct impacts on other procedures of court,and the bankruptcy procedure will result in the suspension or dissolution of other procedures of court.

Candidates were required to state the legal effect of the bankruptcy procedure on the relevant procedures of court.According to the relevant provisions of the Enterprise Bankruptcy Law,whenever a court accepts an application for bankruptcy,the relevant measures against the debtor’s assets shall be dissolved,the enforcement procedures against the debtor and the pending legal actions against the debtor shall be suspended.The reasons for setting up these rules are that bankruptcy of an enterprise will give rise to very complicate legal relations among the enterprise (debtor) and the government,the enterprise and its employees,the enterprise and its creditors or other debtors,and so on.The preservative measures against the assets of the debtor are commonly taken by the plaintiff in the civil litigations of China.The purpose of such measures is to get the favourable judgement to be enforced if the plaintiff wins the case or to avoid the escape of liability by the defendant.Should the preservative measures be not dissolved upon the acceptance of application for bankruptcy by a court,the bankruptcy administrator could neither fix the assets of the bankrupted enterprise nor allocate the assets after the liquidation process.Therefore,the preservative measures against the assets of the debtor must be dissolved under such a circumstance.

The performances on this question were unsatisfactory.Many candidates did not correctly understand the question.Most of them confused the legal effect of the application for bankruptcy with the order of priority in allocating the assets of the debtor.That’s why they wrote a lot but did not gain the satisfactory marks as expected.

Other common reasons for unsatisfactory answers included:
•Confusing the legal effect of the enforcement procedure against the debtor with the illegal transactions conducted by the debtor before its going to bankruptcy,such as giving up its credits or selling the properties with an unreasonable price;
•Failing to state that a pending legal action against the debtor shall be suspended until a bankruptcy administrator to be appointed by the court in part (c) of this question.