The Supreme People's Court believes that the determination of a company's duty infringement during establishment needs to meet the following constitutive requirements: 1. The infringement must be carried out by the initiator or other authorized representative of the company under establishment. The initiator is the representative of the establishment company, and the behavior of the representative office of the establishment company should be considered as the behavior of the establishment company itself. Based on this, the behavior of other staff members of the established company is not included. 2. The infringement behavior must be within the scope of the initiator's responsibility, that is, it must be an act done for the establishment of the company, in order to distinguish individual initiator's individual infringement behavior. This behavior can be either an act or an omission, such as the initiator violating the obligation to disclose information, causing harm to the interests of creditors and subscribers. A company under establishment has its own will and execution organs. The will of the company under establishment is formed through the will organs and realized through the execution organs, and the initiators are both the intention organs and execution organs of the company under establishment. Therefore, the actions carried out by the initiators within the scope of their responsibilities reflect the will of the company under establishment, and the actions of the initiators can only be considered as the actions of the company under establishment. Therefore, the consequences of the promoter's official behavior should belong to the company being established. 3. There is a fact of damage. Only when the promoter's official behavior causes objective damage to others, can the adverse consequences belong to the established company, and the burden of proof for the fact of such damage shall be borne by the victim. 4. There is a causal relationship between job behavior and the fact of damage. 5. Determination of fault. The initiator is the intention authority of the established company, and the fault of the initiator's behavior is considered as the fault of the established company. According to the principle of process liability, the consequences of the infringement should belong to the established company.

As a transitional organizational entity, the purpose of the establishment of a company is to ultimately establish the company. As the initiator of the establishment of the company, its responsibility is to achieve the purpose of the establishment of the company and ensure its smooth establishment. Therefore, from the perspective of purpose, business premises and operating conditions are necessary for the operation of a company, rather than for the establishment of a company. Moreover, the business premises and operating conditions required by various companies vary greatly, even if the same company has different needs for business premises and operating conditions in different periods and regions, which is quite ambiguous, Therefore, the scope of responsibilities of the initiator should not include the preparation for the company's opening. The scope of duties of the promoters is limited to the acts that are legally and economically necessary for the establishment of the company. These acts are made by the organs of the company in the process of establishment, and the consequences should belong to the company in the process of establishment. However, if the initiator agreement or the company's articles of association stipulate the scope of responsibilities of the initiator, then actions beyond this scope belonging to the initiator cannot belong to the company under establishment.

For example, the following is the case of the third party's property loss caused by the decoration of the company under establishment: Linhai Fashida Company v. Taizhou Ziyu Company, Zhou Moumou and other property damage compensation disputes. The defendant Zhou is the legal representative of the defendant Taizhou Ziyu Company, which was established on April 24, 2012. The defendant Zhou Moumou is the father of Zhou Moumou. Zhou Moumou rents the roof of the third floor building, No. 1, Hengjiang Village, Qiansuo Street, Jiaojiang District, Taizhou City, from Chen Mou, an outsider of the case, to produce and publish advertisements. The rent is paid by Zhou Moumou. On January 11, 2012, welding operators Han, Yang, and others carried out welding operations on billboards on the roof of the building, causing a fire at Shida Company, which was separated from the factory building. The public security fire brigade issued a fire accident identification letter, identifying that the cause of the fire cannot be ruled out as the residual ignition of welding slag. The disaster was caused by the failure to effectively control the fire after it occurred, leading to the spread of the fire. The court found that although the lease agreement on the roof was signed by the defendant Zhou, the rent was paid by Zhou, and the billboard was also operated by the defendant Taizhou Ziyu Company with Zhou as the legal representative. Based on the special relationship between the three defendants, Combined with the fact that "Taizhou Ziyu Company rented the roof of Taizhou Jiaojiang Haosheng Precision Machinery Factory for billboard welding on the same day" recorded in the fact sheet issued by Linhai Public Security Fire Brigade on May 15, 2012, the court held that the leasing of the roof and the welding of the billboard should be the preparatory act of the defendant Taizhou Ziyu Company before its establishment, which led to a fire in the plaintiff's plant, There is a causal relationship. According to Article 5 of the Interpretation (3) of the Company Law, "If the initiator causes damage to others due to the performance of the company's establishment duties, and the victim requests the company to bear the liability for infringement compensation after the company is established, the people's court shall support it." Therefore, the compensation liability in this case should be borne by the defendant, Yu Company. The defendant, Yu Company, shall compensate the plaintiff with 804719.30 yuan within ten days from the date of legal effect of this judgment.

If the initiator causes harm to others in the execution of the establishment affairs, the post establishment company shall bear the responsibility. If the company fails to be established, the initiators shall bear joint and several liability. The constitutive requirements for the initiators to bear joint and several liability for infringement to third parties include: 1. The initiators' infringement behavior is the act of establishing and executing the establishment affairs of the company, which is different from the personal behavior of the initiators; 2. The actions of the initiator result in infringement of the rights of third parties. Article 5 of the Interpretation 3 of the Company Law of China stipulates that as long as the initiator causes damage to others due to the performance of their duties, the company and the initiator shall bear joint and several liability for compensation. Therefore, the assumption of joint and several liability by the company and initiators is not based on the fault of the infringing initiators. Article 5 of the Interpretation 3 of the Company Law also stipulates that after a company or an innocent promoter assumes compensation liability, they may pursue compensation from the flawed promoter, that is, each promoter shall share the responsibility in proportion to their fault. If an innocent promoter bears all the compensation liability, they may pursue compensation from the flawed promoter. This attribution method also conforms to the principles of good faith and self responsibility in civil law, while also protecting the interests of the innocent initiator.

The act of establishing a company is a legal act of establishing a company and obtaining legal personality. We will continue to analyze various disputes that may arise during the company establishment process in subsequent articles. Guoling Law Firm will fully leverage its professional advantages to effectively help enterprises prevent relevant legal risks; We will also provide more forms and diverse legal service projects for enterprises based on industry development and actual conditions, guiding scientific decision-making and standardizing development.