澳洲论文代写：LAWS20029 – CORPORATE LAW代写
LAWS20029 – CORPORATE LAW
AssIGNment details for ALL students
Assessment item 1 — Individual Assignment
|Due date:||Thursday of Week 6||ASSESSMENT 1|
Question 1 12 Marks
Direct evidence provides a direct support of the truth of an assertion, without more information for additional inference or evidence. By contrast, circumstantial evidence relies on inferences to link to a conclusion of fact.
According to the Corporations Act, if a person has the ability to pay off his debt, he is called solvent; if not, he is insolvent. This is also applicable for a company. If the company is not able to pay off its matured debt within due time, it is considered as insolvency. According to this clause, insolvency refers to the condition of a person or a company without the ability to pay off matured debt. To prove insolvency, this is a clause with circumstantial evidence, because we need to first judge whether the person has the solvency ability, if not he is considered as insolvency. This evidence of proving insolvency under this definition clause is not a direct one, because it relies on an inference (to first prove solvency) that connects to a conclusion. The validity and persuasiveness of circumstantial clause is widely doubted by many scholars. Circumstantial evidence often accumulates into a collection, resulting in the pieces of circumstantial evidence seen as “corroborating evidence”. In terms of circumstantial evidence, more than one explanations are possible. For example, in this clause, the definition of insolvency is too broad and lacks applicability in real practice.
However, many detailed clauses are also stipulated to make the judge of insolvency more applicable and more direct. According the Corporation Act 2001, if a person has executed a personal insolvency agreement, or if the terms of the agreement have not been fully complied with, the person is considered disqualified to manage corporations. This is a direct evidence since the insolvency agreement is a strong and direct evidence indicating the person’s insolvency. According to 206D of the Corporation Act 2001, if within the last 7 years, the person has been a manger of two more corporations that failed, and that the person is responsible wholly or partly for the corporate failing, the person is disqualified to manage the corporations and deemed to be insolvent. Even though this is an inference to prove insolvency, it’s a strong and persuasive one.
According to the insolvency notice from Australian Securities and Investment Commission, if a company is encountered with the following conditions, it is considered as insolvency. These circumstances include 1) the company is in external administration, or 2) subject to a winding up application filed with an Australian court, or 3) it is considered to enter into a scheme of arrangement, or 4) to be deregistered. These conditions are more involved with direct evidence pointing at the corporations’ insolvency condition, because we do not to check the company’s balance sheet or other financial statements to prove the company is not solvency and then infer its insolvency. We only need to check whether the company’s conditions satisfy the above-mentioned clause. We’ll analyze the above-mentioned cases on a one-to-one basis. 1) If the company is in external administration, it is considered to be insolvency. This is a direct evidence because we only need to see if the company is in external administration and do not need further more inference to add to our reasoning. 2) if the company subjects to a winding up application filed with an Australian court – this is also a direct evidence that points directly at the assertion of insolvency. 3) it is considered to enter into a scheme of arrangement, or 4) to be deregistered. These are also direct evidence.
In contrast, we find that compared to circumstantial evidence, direct evidence is more persuasive. Circumstantial evidence allows more than one explanations to be possible, which is not with strong persuasive power. However, direct evidence points directly at the targeted assertion. Usually, in criminal and civil events, in case when there is no enough direct evidence supporting the assertion, circumstantial evidence are used as inferences to the ultimate assertion. Generally speaking, because of relatively weak proving power, circumstantial evidence usually cannot be used to directly prove the evidence. Some other direct evidence are used to add validity to circumstantial evidence. In particular cases when there are no direct evidence, circumstantial evidence must satisfy the following requirements. First of all, the circumstantial evidence has to be objective, and fully relevant to the case. Secondly, they must be coordinated and form a whole system. Thirdly, when using circumstantial evidence, the conclusions must be coordinated cannot conflict with one another (Welsh, 1992).
Reference: Welsh, A. (1992). Strong Representations: Narrative and Circumstantial Evidence in England. Johns Hopkins University Press.
Question 2 8 Marks
Similarity: shared goals and purposes. Periodic disclosure and continuous disclosure serve for similar purposes. Against the background of a liquid market, openness and transparency in information are important for investors, which requires full disclosure. Both periodic and continuous disclosure help investors to better judge their investment decision-making in whether to buy or to sell the securities of that entity. Disclosure also protect shareholders’ interest and decrease information asymmetry between shareholders and managers.