法人设立阶段的效果归属与责任承担

Effect attribution and responsibility undertaking in the stage of legal person establishment

设立中法人的主体资格以登记为前提。若设立人以设立中法人名义与相对人订约,则应区分设立中法人是否具备主体资格。若具备则应类推有关非法人组织的规定,若不具备则应适用或类推适用代理规范。若设立人以成立后法人名义与相对人订约,则善意相对人可向设立人主张相应的缔约过失或无权代理责任。若设立人以自己名义与相对人订约,则仅当具有主体资格的设立中法人或法人确认后,相对人才能行使选择权。

Registration is the premise of subject qualification of the legal person under stablishment.If the founder contracts with the counterpart in the name of the legal person under establishment,it shall distinguish whether the legal person under establishment has the qualification of subject.If he has,it should be analogized about the provisions of unincorporated organizations;if he does not have,it should be applicable or analogized to the agency norms.If the founder contracts with the counterpart in the name of legal person after the establishment,then the counterpart in good faith can claim to the founder the corresponding contracting fault or unauthorized agency responsibility.If the founder contracts with the counterpart in his own name,the counterpart can exercise the option only when the legal person under establishment or the legal person with subject qualification confirms.