The establishment of a company is different from the establishment of a company. The establishment of a company refers to the state in which a company is established in accordance with the provisions of the Company Law in essence, completes the registration procedures, and obtains the legal personality. The time of the two is different, the establishment of the company must be after the legal act of the establishment of the company, is one of the consequences of the establishment of the company, but the establishment of the company does not necessarily lead to the establishment of the company, the establishment of the company may also end in failure or defective establishment. The nature of the two is different, the establishment of a company is a series of legal acts, and the establishment of a company is the status of the company has obtained legal personality.

The act of establishing a company must comply with the procedures and substantive requirements, including the application for approval of the company name, the sponsors' meeting, the formulation of the company's articles of association, capital verification, etc. The substantive requirements include the legal number of shareholders, the establishment of the company's organizational structure in accordance with the law, and the company's name and residence.

In the process of company establishment, disputes may arise if procedures and substantive requirements are not met. The types of company establishment disputes are as follows: 1. Company investment disputes, which is the most prone to problems in the company's establishment stage, shareholders' investment is the foundation of the company's survival and development lack of funds, it is easy to lead to difficulties in operation, such as the company's establishment of the shareholder's investment is not real or after the establishment of the withdrawal of capital, the company or creditors request shareholders to make up the capital or within the scope of unpaid capital to bear the repayment responsibility. 2. The establishment of the company cannot be disputed, which means that the company fails to establish due to various objective reasons, such as the company's articles of association cannot be reached, but some legal relations may have occurred in the preparation stage, and the disputes arising in the processing of these matters belong to the establishment of the company cannot be disputed. 3. Invalid company establishment disputes, invalid company establishment refers to the company has completed the establishment registration, obtained the legal person status of the company lacks some entity or procedural elements of the company establishment, has irremediable defects, and the competent authorities in accordance with the law to determine that it was not established from the beginning, the resulting dispute is invalid company establishment disputes.

The following will interpret the court's understanding and application of company establishment disputes through the case of "Huang Mou and Chen Mou and Foshan Shengshi Huitong Automobile Trading Co., LTD." heard by Foshan Intermediate People's Court in 2016.

Chen Mou and Huang Mou signed the "Guangfo Motor City contract operation Project share Cooperation Agreement", the agreement agreed to apply for the establishment of an operation management limited company, and agreed on the rights, obligations of shareholders, shareholders' meeting, board of directors, general manager, profit distribution and other elements of the company's establishment, according to the agreement between the two parties, All shareholders shall jointly establish a preparatory leading group and jointly prepare for the establishment of an operation and management limited company. All rights and obligations of both parties shall be strictly governed by this agreement. Huang sued that Chen as the promoter violated the agreement, resulting in the company can not be established, in accordance with the relevant provisions of the Company Law, it has the responsibility to return the received capital contribution. After signing the Agreement with Huang Mou, Chen did not apply for the preparation of the establishment of a management limited company as agreed, nor did he set up a preparatory leading group responsible for the activities during the preparation period, and even the basic work such as the approval of the company name was not carried out.

After the trial of this case by the court of second instance, the focus of the dispute was determined to be a dispute over the partnership agreement or a dispute over the establishment of a company. Partnership agreement disputes refer to disputes between partners over rights and obligations arising from the conclusion, performance, alteration or termination of the partnership agreement; The term "company establishment dispute" refers to the dispute arising from the disputes of rights and obligations between the promoters, the company under establishment, creditors and other interested parties in the course of company establishment. Article 1 of Interpretation (3) of the "Company Law" stipulates: "Any person who signs the articles of association of the company for the purpose of establishing the company, subscrires capital contributions or shares to the company and performs the duties of establishing the company shall be identified as the promoters of the company, including the shareholders at the time of establishment of the limited liability company." In this case, according to the Agreement signed by the two parties, the two parties agreed to apply for the establishment of an operation and management company limited, set up a company preparation leadership group, and agreed on the rights and obligations of shareholders, the shareholders' meeting, the board of directors, the general manager, profit distribution and other matters related to the establishment of the company. Huang, as a person who subscribed to the company for the establishment of the company, requested the return of the capital contribution to the company's other promoter Chen, and the resulting dispute between the two parties should be a dispute over the establishment of the company. If the legal relationship between the parties suing and the actual dispute is inconsistent, the court of second instance will change the cause of the case accordingly according to the nature of the actual legal relationship between the parties identified by the court, so the case will be changed to a dispute over the establishment of a company. The court of first instance determined the case as an improper dispute over the partnership agreement, and the court of second instance corrected it according to law.

As for whether Chen should return the investment of 500,000 yuan to Huang, because Huang has no evidence to prove that Chen intentionally did not prepare the company or other faults and led to the company was not established, in the case of the establishment of the company in the process of expenditure is actually greater than Huang's investment of 500,000 yuan, Huang asked Chen to return the investment of 500,000 yuan, there is no factual and legal basis. The court of first and second instance did not support it. 

The act of establishing a company is a legal act of creating a company and obtaining the status of a legal person. This kind of behavior is the common behavior of the promoters for the purpose of establishing the company, and it is the common behavior of several people with the same purpose. It can be seen that the foundation of the establishment act is the unanimous expression of intention of the majority, and the effect of the act is that the actor obtains the same equity, so it is a joint act in law. The agreement formed on this basis is essentially a partnership agreement, but the effect is different from that of the general partnership agreement. In addition, regarding the nature of the act of establishment, its core or main part is the civil legal act; However, there are also some non-civil legal acts, such as applying for registration of company establishment and applying for share issuance, which are acts of administrative law. In the following articles, we will continue to analyze the many disputes that may result from irregularities in the company establishment process. Hillhouse Law Firm will give full play to its professional advantages and effectively help enterprises prevent relevant legal risks; We will also provide enterprises with more forms and more abundant legal service projects according to the development of the industry and the actual situation of enterprises, and guide enterprises to make scientific decisions and standardize development.