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公司设立过程中,为筹办公司发起人经常以自己的名义签订合同,该类合同的责任承担问题在立法中没有明确规定,司法实践中各高院的指导意见也莫衷一是。本文从已有司法实践经验入手,借鉴国外经验,分析认为,发起人为设立公司以自己名义签订合同的,在公司成立前,签订合同的该发起人应该独自承担合同责任;在公司成立后,如果公司选择承担合同责任,可以由公司和该发起人承担连带责任,如果公司不承担合同责任,仍由该发起人独自承担责任。
In the course of establishing the company, in order to organize company promoters to often sign contracts in their own name, the responsibility of such contracts is not clearly stipulated in the legislation, and the guiding opinions of the high courts in judicial practice are not consistent either. This article starts from the experience of judicial practice, and draws lessons from foreign experience. It is analyzed that, if the sponsor sets up the company to sign the contract in its own name, the sponsor who signs the contract should bear the contract responsibility before the establishment of the company. After the establishment of the company, The company chooses to undertake the contractual responsibility, which can be jointly and severally liable by the company and the sponsor. If the company does not undertake the contractual responsibility, the sponsor shall still be solely responsible.