2011年ACCA考试F4模拟试题（6）

　　(b) The procedure through which a company can reduce its capital is laid down by ss.641每653 Companies Act 2006.

　　Section 641 states that a company may reduce its capital in any way by passing a special resolution to that effect. In the case of a public company any such resolution must be confirmed by the court. In the case of a private company， however， court approval is not required as long as the directors issue a statement as to the company*s present and continued solvency for the following 12 months (ss.642 & 643)。 The special resolution， a copy of the solvency statement， a statement of compliance by the directors confirming that the solvency statement was made not more than 15 days before the date on which the resolution was passed， and a statement of capital must be delivered to the registrar within 15 days of the date of passing the special resolution.

　　Section 641 sets out three particular ways in which the capital can be reduced by：

　　(a) removing or reducing liability for any capital remaining as yet unpaid. In effect the company is deciding that it will not need to call on that unpaid capital in the future.

　　(b) cancelling any paid-up capital which has been lost through trading or is unrepresented by the current assets. This effectively brings the statement of financial position into balance at a lower level by reducing the capital liabilities in recognition of a loss of assets.

　　(c) repayment to members of some part of the paid up value of their shares in excess of the company*s requirements. This means that the company actually returns some of its capital to its members on the basis that it does not actually need that level of capitalisation to carry on its business.

　　It can be seen that procedure (a) reduces the potential creditor fund， for the company gives up the right to make future calls against its shares and procedure (c) reduces the actual creditor fund by returning some of its capital to the members. In recognition of this fact， creditors are given the right to object to any such reduction. However， procedure (b) does not actually reduce the creditor fund， it merely recognises the fact that capital has been lost. Consequently creditors are not given the right to object to this type of alteration (ss.645 & 646)。

　　Under s.648 the court may make an order confirming the reduction of capital on such terms as it as it thinks fit. In reaching its decision the court is required to consider the position of creditors of the company in cases (a) and (c) above and may do so in any other case. The court also takes into account the interests of the general public. In any case the court has a general discretion as to what should be done. If the company has more than one class of shares， the court will also consider whether the reduction is fair between classes. In this it will have regard to the rights of the different classes in a liquidation of the company since a reduction of capital is by its nature similar to a partial liquidation.

　　When a copy of the court order together with a statement of capital is delivered to the registrar of companies a certificate of registration is issued (s.649)。

　　6 The Company Directors Disqualification Act (CDDA) 1986 was introduced to control individuals who persistently abused the various privileges that accompany incorporation， most particularly the privilege of limited liability. The Act applies to more than just directors and the court may make an order preventing any person (without leave of the court) from being：

　　(i) a director of a company;

　　(ii) a liquidator or administrator of a company;

　　(iii) a receiver or manager of a company‘s property; or

　　(iv) in any way， whether directly or indirectly， concerned with or taking part in the promotion， formation or management of a company.

　　The CDDA 1986 identifies three distinct categories of conduct， which may， and in some circumstances must， lead the court to disqualify certain persons from being involved in the management of companies.

　　(a) General misconduct in connection with companies

　　This first category involves the following：

　　(i) A conviction for an indictable offence in connection with the promotion， formation， management or liquidation of a company or with the receivership or management of a company‘s property (s.2 of the CDDA 1986)。 The maximum period for disqualification under s.2 is five years where the order is made by a court of summary jurisdiction， and 15 years in any other case.

　　(ii) Persistent breaches of companies legislation in relation to provisions which require any return， account or other document to be filed with， or notice of any matter to be given to， the registrar (s.3 of the CDDA 1986)。 Section 3 provides that a person is conclusively proved to be persistently in default where it is shown that， in the five years ending with the date of the application， he has been adjudged guilty of three or more defaults (s.3(2) of the CDDA 1986)。 This is without prejudice to proof of persistent default in any other manner. The maximum period of disqualification under this section is five years.

　　(iii) Fraud in connection with winding up (s.4 of the CDDA 1986)。 A court may make a disqualification order if， in the course of the winding up of a company， it appears that a person：

　　(1) has been guilty of an offence for which he is liable under s.993 of the CA 2006， that is， that he has knowingly been a party to the carrying on of the business of the company either with the intention of defrauding the company‘s creditors or any other person or for any other fraudulent purpose; or

　　(2) has otherwise been guilty， while an officer or liquidator of the company or receiver or manager of the property of the company， of any fraud in relation to the company or of any breach of his duty as such officer， liquidator， receiver or manager (s.4(1)(b) of the CDDA 1986)。

　　The maximum period of disqualification under this category is 15 years.