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从理论上讲,在公司成立前,不能以公司名义进行交易活动,但在公司设立过程中,发起人为促使公司成立,必然要进行必要的创设活动,甚至以公司的名义与第三人进行交易。由于公司设立是公司的非常状态,发起人在公司设立中的交易行为是在与第三人之间展开的,行为的后果则会涉及成立后的公司、债权人及发起人之间的风险和利益分配。如何规范公司设立过程中的交易行为,如何承担其民事责任,平衡各方主体之间的利益,是一个在理论和实践中都具有现实意义的课题。
Theoretically, trading activities can not be conducted in the name of the company before the establishment of the company. However, in order to promote the establishment of the company, the sponsor must inevitably carry out the necessary creative activities during the establishment of the company and even deal with the third party in the name of the company . Since the establishment of a company is a very state of the company, the promoter’s conduct of trading in the establishment of the company is carried out with a third party, the consequences of which involve the risks and interests between the established company, creditors and promoters distribution. How to standardize the trading behavior during the establishment of the company, how to assume its civil liability and balance the interests among the parties is a topic that has practical significance both in theory and in practice.