Title | Revised Corporation Code of the Philippines Republic ACT 11232 |
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Author | A. Panlaqui |
Pages | 130 |
File Size | 3.5 MB |
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Revised Corporation Code of the Philippines Republic ACT 11232 Highlights • 17 Titles • 188 sections • Major provisions introduced to harmonize with other commercial laws • Major reforms introduced • Signed on February 20 and Published on February 21, 2019 Definition ...
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Revised Corporation Code of the Philippines Republic ACT 11232
Highlights • 17 Titles • 188 sections • Major provisions introduced to harmonize with other commercial laws • Major reforms introduced • Signed on February 20 and Published on February 21, 2019
Definition of Corporation • Section 2. A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incidental to its existence. • By operation of law – note section 4 (Corporations created by Special Laws or Charters) • Powers – refer to Title IV sections 35 – 44. Note section 44 on ultra vires acts
Classes of Corporations • Stock and Non-‐Stock (section 3) • In relation to Non-‐Stock Corporation, refer to Title XI (sections 86-‐94) • Refer as well to section 19 (De Facto Corporation), section 20 (Corporation by Estoppel), and Title XII (Close Corporation), Title XIII (Special Corporations – Educational/Religious/ One Person Corporation)
Test to determine whether a corporation is public or private The true criterion, therefore, to determine whether a corporation is public or private is found in the totality of the relation of the corporation to the State. If the corporation is created by the State as the latter's own agency or instrumentality to help it in carrying out its governmental functions, then that corporation is considered public; otherwise, it is private. Applying the above test, provinces, chartered cities, and barangays can best exemplify public corporations. They are created by the State as its own device and agency for the accomplishment of parts of its own public works.
Corporators, Incorporators, Stockholders and Members • Note section 5 -‐ Definition and distinction between Corporators, Incorporators, Members • Relate to Title III (Board of Directors); Title VII (Stocks and stockholders) • Articles of Incorporation – defined in section 13
Classification of Shares • Covered by section 6 -‐ Classification, corresponding rights, privilges, restrictions and stated par value must be stated in the Articles • Each share shall be equal in all respects to every other share, except as otherwise provided in the Articles and in the Certificate of Stock. • NO share may be deprived of voting rights except those classified and issued as preferred or redeemable shares. • Provided that there shall always be a class or series of shares with complete voting rights.
Exceptions: Where non-‐voting shares may still vote on • Where the articles of incorporation provide for non-‐voting shares in the cases allowed by this Code, the holders of such shares shall nevertheless be entitled to vote on the following matters: • 1. Amendment of the articles of incorporation; • 2. Adoption and amendment of by-‐laws; • 3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the corporate property; • 4. Incurring, creating or increasing bonded indebtedness;
Exceptions: Where non-‐voting shares may still vote on • 5. Increase or decrease of capital stock; • 6. Merger or consolidation of the corporation with another corporation or other corporations; • 7. Investment of corporate funds in another corporation or business in accordance with this Code; and • 8. Dissolution of the corporation. • Except as provided in the immediately preceding paragraph, the vote necessary to approve a particular corporate act as provided in this Code shall be deemed to refer only to stocks with voting rights.
• Share or series of shares may or may not have a par value • The following are NOT allowed to issue no par value shares: 1. Banks 2. Trust 3. Insurance 4. Pre need companies 5. Public Utilities 6. Building and Loan Associations 7. Other corporations authorized to obtain or access funds from the public, whether publicly listed or not
Preferred Shares • Shares of stock issued by a corporation may be given preference in: 1. Distribution of Dividends 2. Distribution of Corporate Assets in case of liquidation, or 3. Such other preferences
Rules on Preferred Shares • May be issued only with stated par value • Board may fix the terms and conditions in the preferred shares • Such terms and conditions shall take effect upon filing of a certificate thereof with SEC
Rules on No Par • It shall be deemed fully paid and nonassessable and the holder of such shares shall not be liable to the corporation or to its creditors in respect thereto • No Par Value shares must be issued for a consideration of at least P5.00 per share • The entire consideration received by the corporation for its no par value shares shall be treated as capital and shall not be available for distribution as dividends.
Founder’s Shares (sec.7) • Different from other shares • Not necessarily Incorporators • Granted certain rights and privileges not enjoyed by the owners of other stocks • May be granted exclusive right to vote and be voted for as Director, provided that it must be for a period not to exceed 5 years from the date of incorporation • Such exclusive right shall not be allowed if it will violate the Anti-‐ Dummy Law and the Foreign Investments Law, and other pertinent laws
Redeemable Shares (Sec.8) • Shares which may be purchased by the corporation from the holders of such shares upon the expiration of a fixed period, regardless of the existence of unrestricted retained earnings in the books of the corporations; • Subject to other terms and conditions to be stated in the articles and the certificate of stock
Treasury Shares (sec. 9) • Classes of shares which have been issued and fully paid • But subsequently reacquired by the issuing corporation through purchase, redemption, donation or some other lawful means • Such shares may be disposed of at a reasonable price to be fixed by the Board
Difference between Treasury and Redeemable Shares Redeemable Shares
Treasury Shares
Shares which may be purchased by the corporation from the holders of such shares upon the expiration of a fixed period, regardless of the existence of unrestricted retained earnings in the books of the corporations; Subject to other terms and conditions to be stated in the articles and the certificate of stock.
Classes of shares which have been issued and fully paid But subsequently reacquired by the issuing corporation through purchase, redemption, donation or some other lawful means Such shares may be disposed of at a reasonable price to be fixed by the Board
Nationality of Corporations INCORPORATION TEST The sovereignty by which a corporation was created, under whose laws it was organised, determines its national character, and the fact that some of its incorporators were residents and citizens of a foreign country does not change this rule. Note section 140, Definition of a Foreign Corporation Section 176 – Stock Ownership in corporations
Rule in this jurisdiction Control Test under section 3 of RA 7042 as amended by RA 8179 otherwise known as the Foreign Investment Act of 1991 Also referred to as the “aggregate test” Shares belonging to 60% of the capital of which is owned is Filipino citizens shall be considered as of Philippine nationality, but if the percentage of Filipino ownership is less than 60%, only the number of shares corresponding to such percentage shall be counted as of Philippine nationality.
Application of control test What is the nationality of a corporation organized and incorporated under the laws of a foreign country but owned 100% by Filipinos? FILIPINO Corporation, but not a domestic corporation.
What shares are considered in computation Common shareholdings,not preferred or redeemable shares. Section 6 of the Corporation Code of the Philippines explicitly provides that “no share may be deprived of voting rights except those classified as ‘preferred’ or ‘redeemable’ shares.”
Grandfather rule Exception to the Control Test, but can be applied cumulatively as well. Note the case of Narra Nickel Mining Corporation (2015) Resort to the Grandfather Rule is necessary if doubt exists as to the locus of the “beneficial ownership” and “control,” particularly n cases of corporate web layering.
Application of the rules “Doubt” refers to various indicia that the “beneficial ownership” and “control” of the corporation do not in fact reside in Filipino shareholders but in foreign stakeholders. When is there doubt: 1. That the foreign investors provide practically all the funds for the joint investment undertaken by these Filipino businessmen and their foreign partner; 2. That the foreign investors undertake to provide practically all the technological support for the joint venture; 3. That the foreign investors, while being minority stockholders, manage the company and prepare all economic viability studies.
Nationality Requirement provisions under new law Names and Nationalities of Incorporators must be stated in Articles of Incorporation (section 13 ), Section 14 paragraph 11 (No transfer of stock or interest shall reduce ownership of Filipino citizens…) When required percentage of Filipino ownership of the capital stock under existing laws or the Constitution has not been complied with, the Articles of Incorporation or Amendment may be disapproved (section 16 [d.] Section 176. Stock ownership in corporations. NEDA to submit report to congress for the prevention or correction of errors on stock ownership requirements if the corporate vehicle has been used to frustrate the law.
Power of Congress Section 176. Congress may set maximum limits for stock ownership to prevent anti-‐competitive practices as provided in RA 10667 otherwise known as the “Philippine Competition Law”
Separate juridical personality As a general rule, a corporation will be deemed a separate legal entity until sufficient reason to the contrary appears. But the rule is not absolute. A corporation's separate and distinct legal personality may be disregarded and the veil of corporate fiction pierced when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime. Siain Enterprises vs. Cupertino Realty Corp., et al., G.R. No. 170782, June 22, 2009
Separate personality
It is elementary that a corporation has a personality distinct and separate from its individual stockholders or members. Being an officer or stockholder of a corporation does not make one's property the property also of the corporation, for they are separate entities.
[G.R. No. 180036.
July 25, 2012.],SITUS DEVELOPMENT CORPORATION, DAILY SUPERMARKET, INC. and COLOR LITHOGRAPHIC PRESS, INC., petitioners, vs. ASIATRUST BANK, ALLIED BANKING CORPORATION, METROPOLITAN BANK AND TRUST COMPANY, and CAMERON GRANVILLE II ASSET MANAGEMENT, INC. (CAMERON), respondents.
Hence, the rule is that assets of stockholders may not be considered as assets of the corporation, and vice-‐versa. The mere fact that one is a majority stockholder of a corporation does not make one's property that of the corporation, since the stockholder and the corporation are separate entities.
While a share of stock represents a proportionate or aliquot interest in the property of the corporation, it does not vest the owner thereof with any legal right or title to any of the property, his interest in the corporate property being equitable or beneficial in nature. Shareholders are in no legal sense the owners of corporate property, which is owned by the corporation as a distinct legal person. Concepcion Magsaysay-‐Labrador vs. Court of Appeals, G.R. No. 58168, December 19, 1989;Good Earth Emporium, Inc. vs. Court of Appeals, G.R. No. 82797, February 27, 1991
Civil Code Provisions
Article 45 – private corporations are regulated by laws of general application Article 46 – juridical persons may acquire and possess property of all kinds as well as incur obligations and bring civil or criminal actions
Piercing the veil The doctrine of piercing the veil of corporate entity applies when the corporate fiction is used to defeat public convenience, justify wrong, protect fraud, or defend crime or where a corporation is the mere alter ego or business conduit of a person (Indophil Textile Mill Workers Union-PTGWO vs. Teodorico P. Calica, G.R. No. 96490, February 3, 1992). To disregard the separate juridical personality of a corporation, the wrong-doing must be clearly and convincingly established. It cannot be presumed Del Rosario vs. NLRC, G.R. No. 85416, July 24, 1990; James Yu vs. National Labor Relations Commission, G.R. Nos. 111810-‐11, June 16, 1995
Nature Piercing the veil of corporate entity is an equitable remedy, and may be awarded only in cases when the corporate fiction is used to defeat public convenience, justify wrong, protect fraud of defend crime or where a corporation is a mere alter ego or business conduit of a person.
Tests 1. Control, not mere majority or complete control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own.
2. Such control must have been used by the defendant to commit fraud or wrong, to perpetuate the violation of a statutory or other positive legal duty, or dishonest and,unjust act in contravention of plaintiffs legal rights; and, 3. The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.
The doctrine of piercing the corporate veil applies only in three (3) basic areas, namely: 1) defeat of public convenience as when the corporate fiction is used as a vehicle for the evasion of an existing obligation; 2) fraud cases or when the corporate entity is used to justify a wrong, protect fraud, or defend a crime; or 3) alter ego cases, where a corporation is merely a farce since it is a mere alter ego or business conduit of a person, or where the corporation is so organized and controlled and its affairs are so conducted as to make it merely an instrumentality, agency, conduit or adjunct of another corporation.
Three variants to the doctrine Identity Doctrine -‐ Unity of Interest and Ownership that independence of corporation has ceased to exist, adherence to doctrine will defeat justice and equity Instrumentality Rule (Control Test) Alter Ego Doctrine -‐ Corporation is a mere dummy, unreal or a sham, serves no other business purpose
Totality of circumstances test Consider all circumstances and each case must be decided on its own set of facts.
Does the group of companies have a personality separate and distinct from its component corporations?
Group of Companies refer to those that are financially related to one another as parent corporation, subsidiaries and affiliates. NO separate personality distinct from each of the aggregate corporations, except in cases of rehabilitation. Note RA 10142 “FRIA Law”
Will the fact that a person acting as President, Chairman and Treasurer of the corporation justify already the piercing of the veil of corporate fiction based on the alter-ego theory?
May the doctrine of piercing the veil of corporate fiction apply to a corporation not impleaded in the suit?
Liability FOR TORT
A corporation is liable whenever a tortious act is committed by an officer or agent under express direction or authority from the stockholders or members acting as a body, or, generally, from the directors as the governing body.
Piercing the veil of Corporate Fiction under the New Code • Section 17 – SEC may hold the corporation and its responsible directors or officers in contempt and/or hold them administratively liable, civilly and/or criminally liable for failure to comply with the Commission’s order to cease and desist from using a corporate name that has been determined as not distinguishable. Note section 159 – Penalty for the unauthorized use of a corporate name • Section 30 – Liability of Directors, Trustees or Officers shall be jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons • Section 32 -‐ Contracts between Corporations with interlocking directors where there is fraud may be invalidated
Piercing the veil of Corporate Fiction under the New Code • Section 33 – Disloyalty of a Director where the latter acquires a business opportunity which should belong to the corporation, Director must account and refund to the latter all such profits, unless ratified by 2/3 vote of the outstanding capital stock. • Section 130 – Liability of a single shareholder shall be jointly and severally for the debts and other liabilities of the OPC should the said stockholder cannot prove that the property of the OPC is independent of the stockholder’s property
Piercing the veil of Corporate Fiction under the New Code • Section 166 – Liability of Directors, Officers, Employees, agents or representatives are engaged in graft and corrupt practices. • Section 168 – Tolerating graft and corrupt practices act • Section 170 – Separate liability of Director, Trustee and Oficer • Section 171 – Liability of Directors, Trustee, Officers or other Employees
Incorporating and Organizing a ...