商业形式：构建助力企业成功的法律框架（英文版）.pdf

Building the legal framework to help business succeed The Association of Chartered Certified Accountants July 2019About ACCA ACCA (the Association of Chartered Certified Accountants) is the global body for professional accountants, offering business-relevant, first-choice qualifications to people of application, ability and ambition around the world who seek a rewarding career in accountancy, finance and management. ACCA supports its 219,000 members and 527,000 students (including affiliates) in 179 countries, helping them to develop successful careers in accounting and business, with the skills required by employers. ACCA works through a network of 110 offices and centres and 7,571 Approved Employers worldwide, and 328 approved learning providers who provide high standards of learning and development. Through its public interest remit, ACCA promotes appropriate regulation of accounting and conducts relevant research to ensure accountancy continues to grow in reputation and influence.ACCA has introduced major innovations to its flagship qualification to ensure its members and future members continue to be the most valued, up to date and sought-after accountancy professionals globally. Founded in 1904, ACCA has consistently held unique core values: opportunity, diversity, innovation, integrity and accountability.More information is here: accaglobalBuilding the legal framework to help business succeedAbout this reportBusiness activities are an essential part of every society. Their success, especially when first starting up, depends on many social and economic variables, but one of the most important (but perhaps frequently overlooked) factors is the legal form the business adopts. Government has several roles to play, the most fundamental of which is to make the forms available, although educating people about them is every bit as vital to effective exploitation of those opportunities, as is ensuring that the support mechanisms are available to help make the most of them.4IntroductionAlthough doing business is a fundamental part of society, getting started can often be very risky for entrepreneurs. The challenges facing the entrepreneur are not just about choosing the right form, but about exploiting it properly and making the most of its characteristics. Government has several roles to play in helping new business get off the ground. Most fundamentally, and uniquely, it is part of governments role to make the legal forms available through legislation. Government alone can set the boundaries of permissible activities under the law, and adjust the rights and obligations of businesses and their stakeholders. But beyond this, there can be a role for government in educating people about the available options, and helping them to make the most of them. Many jurisdictions offer community interest vehicles or structures designed to promote employee ownership and engagement, but take-up of them can often be low. This may be because entrepreneurs and their advisers are unaware of them, or the latter are unfamiliar with the benefits and so unwilling to promote them (Nuttall 2012: para 3.6). Once businesses are aware of the options, the availability of mentoring schemes, trade networks and grants can significantly improve the chances of a long and successful life for the venture.Building the legal framework to help business succeed | Introduction5diversify investments, commission expensive marketing campaigns or undertake speculative research and design work. Accordingly, the membership will not need complex mechanisms for reviewing or reversing management decisions to the same extent applicable for a general trading company which might pursue any of those activities.Another aspect of business success that governments are uniquely positioned to create is building the trust relationship environment in which business and commerce can flourish. Business is basically about trust. Every transaction, every contract, is about promises made between individuals. Sometimes performance is instant, but at other times the performance will be at some point in the future. The parties need to believe and understand that the promises will be kept, or that if one side does try to default then that there will be some way of enforcing the performance or being compensated for the failure.Government is responsible for developing and maintaining much of the infrastructure, such as the courts and central public registers of business information, that supports those trust mechanisms. As with every other area of business, developments in technology present both threats and opportunities in this sector. Electronic transmission and recording of information reduces the costs of both business and regulators. Online registers can be searched quickly from anywhere in the world, but of course require initial set-up and creation. It is vital that policymakers consider the environment within which businesses operate as well as the way in which they are allowed to do so.The rest of this report looks in more detail at the specific features of legal business forms and explores the elements that policymakers should consider.Ensuring that appropriate models and support are available can drive a more successful and sustainable society for all. For instance, improving the environment for businesses has a clear direct benefit to government, which is a significant buyer of services from private business. The more successful businesses there are in the marketplace then the greater the choice that government will have. Businesses that are run efficiently and effectively through the appropriate structure will be able to supply services to government at a lower price to the taxpayer. Furthermore, there is a benefit from cooperatives and society-driven enterprises because they reduce the need for direct government funding to the extent that they complement or replace public interest activities that would otherwise either not exist or have to be supplied by public bodies. In addition to the benefit to the immediate recipients of such businesss activities, society as a whole benefits from the reduced need for direct government funding.It is vital for governments to consider the local context when looking at the availability of legal forms for businesses. In many jurisdictions, what is really needed is not so much a vehicle for entrepreneurs as a mechanism for equalising bargaining power in the marketplace. Where this is the case, the important design features will not be those governing distribution of the profits (indeed in many cases such organisations are designed not to return profits at all) but rather the regulation of external relationships with customers and suppliers. Close behind that in importance comes the regulation of internal relationships, although if the powers of the body are limited then this also becomes less important. For example, a farming cooperative whose sole function is to purchase seed, fertiliser and machinery, then to sell the output at market, will not have the discretion to Another aspect of business success that governments are uniquely positioned to create is building the trust relationship environment in which business and commerce can flourish. Dispute resolution mechanisms for businessProviding encouragement for business enterpriseSupporting an ethical approach to businessMaintaining stability and confidenceEnabling business to be the driver of societys prosperityFIGURE 1: Five enabling strategies for governments to consider as it approaches each theme6A framework for designing business formsIn order to help structure this analysis, the characteristics of business forms have been split into four broad categories, considering in turn:Realising the returnsInvesting into the businessLegal characteristicsAdministrative requirements.There is inevitably some overlap and interaction between those broad headings, and a number of further considerations must be taken into account. Aspects such as transparency and accountability are increasingly important to stakeholders, while the regulatory mechanisms enabling businesses to operate, and perhaps as importantly, imposing sanctions on those who would seek to operate outside the rules, are a vital component of the functioning system.7Most businesses are run with a view to creating a profit for the investors (whether owners, managers or lenders), but there can be other motivations, such as providing community services or wider public benefits, existing alongside or to the exclusion of the profit motive. Realising the returnsThe purpose of the business might restrict the range of business vehicles available. The long-term goal might be financial security for the founder and their family or partners, or it could be to maximise profitability with a view to sale.Establishing what form value takes for the business, and then deciding how best to ensure that the value ends up where it is supposed to be, is perhaps the most important consideration for the founders. The choice they make from the available forms will be driven by their approach to achieving their goals, and any compromises they may be prepared to make along the way. It is the job of policymakers to ensure that the range of forms available minimises the compromises required across the population as a whole, without incurring avoidable administrative costs.Some structures favour regular extraction of accrued profits; others allow for the sale of a share, and future returns on that share, to a third party. A number of cooperative and charitable forms, by contrast, deliver their value entirely in the form of returns to society or indirectly to the members, and do not allow for any cumulative return to members on capital invested. A system of business forms that responds to these various aims is essential. Designing it will depend on understanding the needs of founders and determining how the outcomes desired can best be reflected by the forms available.Government policy, as expressed in legislative and regulatory regimes, may reflect an implicit assumption that businesses, especially incorporated ones, exist for commercial gain. This would be evidenced by the emphasis on maintenance of capital, and the widespread existence of specific rules to enhance directors and owners personal liability when close to insolvency (Gerner-Beuerle et al. 2013). It will be worth bearing in mind that over two-thirds of respondents to an ACCA survey believe that business legal forms should exist that explicitly recognise that non-financial aims are part of measuring the success of a small business (see Sources and Building the legal framework to help business succeed | A framework for designing business forms8markets surveyed as part of the initial desktop research for this series of reports, farming and business cooperatives exist as a significant and important part of the economic infrastructure. While the adoption of the cooperative form is driven by financial imperatives, the goal is not so much a financial profit as simply allowing access to marketplaces in the first instance. The collective bargaining power of the cooperatives enables those involved to negotiate commercial deals with counterparties on terms that would not otherwise be possible, and while a direct individual financial return on the membership share is typically not available, the members benefit indirectly through being able to deal on those terms in respect of their own transactions (Sabir et al. 2012; Trebbin and Hassler 2012).Whenever money is realised there are likely to be tax consequences. While it is rarely, if ever, a good idea to allow the choice of business form to be driven exclusively by Methodology at the end of this report). Nearly 80% of respondents rejected the idea that such entities should be more tightly regulated than others, although they were evenly split between regulation being the same (39%) or less strict (37%) than for purely commercial enterprises.It will be important to address the clear appetite of entrepreneurs for pursuing more than simple financial gain through their businesses. Policymakers should investigate whether existing vehicles offer sufficient flexibility within a single template, or if there are alternatives designed for specifically commercial or non-commercial aims. If neither is the case, then government should consult with the relevant stakeholders to develop the most appropriate local models.The domestic social and economic environment can play a significant role in shaping the vehicles needed to enable economic activity. In several of the 68%of aspiring entrepreneurs want Non-Financial Goals to be recognisedFIGURE 2: Business Forms should exist which explicitly recognise non-financial goalsnStrongly disagree, 5%nDisagree, 6%nNeither agree nor disagree, 21%nAgree, 47%nStrongly agree, 21%FIGURE 3: Relative importance attached to startup vs ongoing costsAspiring entrepreneursAdvisers who have also set up and run their own business0%25%50%75%100%0%2.5%5%7.5%10%SOLID LINE:important and very importantOngoing StartupDOTTED LINE:of little or no importance1 For example, Indian Cooperatives and Nidhi and Producer Companies. For general information see , accessed 25 February 2019.2 For example, the Singapore Public Company Limited by Guarantee, Indian cooperatives, Irish Guarantee Companies and the UK CIO/SCIO models. Building the legal framework to help business succeed | A framework for designing business forms9governing withdrawal of profits and funds will be dealt with by each individual firms in-house partnership agreement.Where the business is a separate legal entity, and its assets belong to it and not to its individual members, there are likely to be, at the very least, legal restrictions on how funds may be distributed back to investors. In practice these may well be a mere formality, especially in the case of a single shareholder-director company (where these are allowed under local legislation) but otherwise companies are restricted in the ways in which they may distribute funds to their directors and shareholders.As noted above, many cooperatives and charitable structures impose significant restrictions on the distribution of cash from the enterprise. It is common for the statutory provisions setting up farming cooperatives and the like to have conditions that not only restrict the ventures scope for making cash returns to members, but also require it build up cash reserves out of each years operating surplus in order to fund future capital investment by the cooperative, for example in improved machinery or storage facilities.1Similarly, the constitution of a charitable enterprise, in addition to restrictions on distributing returns during the life of the enterprise, will often include a stipulation that any funds held by the body on a winding-up may only be distributed to another chari