在公司设立之前,发起人经常根据需要以设立中公司的名义、以发起人自己的名义或者以成立后公司的名义与第三人签订合同。然而,发起人与第三人签订的先公司合同中所承载的权利义务在公司不能成立时或最终能够成立时究竟应当归属于谁?我国《公司法》解释(三)的第2条和第3条虽已有了明确规定,但此规定并不具体,还有待完善。 Prior to the company’s establishment, the sponsor often contracted with a third party in the name of the sponsoring company, or in the name of the sponsor company, on a frequent basis, as needed. However, the rights and obligations of the sponsor and the third party in the contract of the first company should be attributed to the company when the company can not be established or eventually can be established. Article 2 and Article 3 of the Interpretation of the Company Law Although Article 3 has been clearly defined, this provision is not specific and has yet to be improved.