Article 33. Appointment of
Inspector Concerning Matters Entered or Recorded in the Articles of
Incorporation
(Compare
Article 173 of the former Commercial Code)
1. When there have been entries or recordings in the articles of
incorporation of matters listed in the items of Article
28. (Other
Articles of Incorporation Entries), the incorporators must, without delay, after the notarization by the
notary public of Article
30. (Notarization
of Articles of Incorporation), paragraph 1, petition the court for the appointment of an inspector in
order to examine the said matters.
2. When
there has been the petition of the previous paragraph, the court must appoint
an inspector, unless this is rejected as illegal.
3. When
the court has appointed an inspector, the court may determine the compensation
to be paid to the said inspector by the kabushiki kaisha after incorporation.
4. The
inspector of paragraph 2 must make necessary examinations, and supply a report
to the court the document or electromagnetic recording (limited to those
determined by Ministry of Justice Ordinance) in which is entered or recorded
the results of the said examinations.
5. The
court may give consideration to the contents of the report
of the previous paragraph, and, it deems necessary in order to confirm the
basis thereof, demand further reports of the previous paragraph of the
inspector of paragraph 2.
6. The
inspector of paragraph 2, when it has made the report of paragraph 4, must make
a copy of the report of the documents of the same paragraph and deliver it to
the incorporators or provide the matters recorded in the electromagnetic recordings of the same paragraph, in a
manner provided for by Ministry of Justice ordinance.
7. In
those situations where the court
has received the report of paragraph 4, when it deems the matters listed in the
items of Article 28 inappropriate, the court must order changes thereof.
8. In
those situations where there have been changes in all or part of the matters
listed in Article 28 based on a decision of the previous paragraph, limited to
a period of one week after the confirmation of the said decision, the
incorporators may cancel indications of intent concerning subscription to
shares to be issued at the time of incorporation.
9. In
the situation provided for in the previous paragraph, the incorporators, based
on an agreement of all incorporators, limited to a period of one week after the
confirmation of the decision of paragraph 7, can amend the articles of incorporation abolishing the
determinations concerning the matters changed based on the said decision.
10. The
provisions of each of the previous paragraphs, in the situations listed
hereunder, shall not apply with respect to the matters listed hereunder.
(1) Matters listed in items 1 and 2 of Article 28 in those situations
where the total of the values recorded or entered in the articles of
incorporation concerning the assets of items 1 and 2 of the same Article
(hereinafter in this Chapter called “contribution in kind assets, etc.”)do not
exceed 500 million yen.
(2) Matters
listed in items 1 and 2 of Article 28 concerning securities, in those
situations where securities with markets (meaning the securities provided for
in Article 2, paragraph 1 of the Securities Exchange Law (Law No. 25 of 1948)
including those rights regarded as securities based on Article 2, paragraph 2.
Hereinafter the same) have values
entered or recorded in the articles of incorporation, which do not
exceed the market price of the said securities when calculated based on methods
determined by Ministry of Justice ordinance.
(3) Matters
listed in items 1 and 2 of Article 28, concerning “contribution in kind assets,
etc.” in those situations where the value entered or recorded in the articles
of incorporation has been certified as suitable by an attorney, a law firm, a
certified public accountant (including foreign certified public accountants
(meaning foreign certified public accountants provided for in Article 16-2, Paragraph
5 of the Certified Public Accountants Law (Law No. 103 of 1948) Hereinafter the
same), an accounting firm, a tax accountant or a tax accounting firm, (in those situations where the
“contribution in kind assets, etc.” is real property, the above said
certification and the assessment of a land assessor. Hereinafter in this item,
the same) (limited to those
related to “contribution in kind assets, etc.” which have received the said
certification )
11. Parties listed
hereunder can not make the certification provided for in item 3 of the previous
paragraph
(1) Incorporators
(2) The
party transferring the assets of Article 28, item 2.
(3) Incorporation
directors (meaning directors at the time of incorporation provided for in Article
38. (Appointment of Directors at
the Time of Establishment),
paragraph 1) or incorporation statutory auditors (meaning statutory auditors at
the time of incorporation provided for in Article 28, paragraph 2, item 2)
(4) Parties
who have received dispositions suspending their business and for which their
period of suspension has not expired.
(5) Law
firms, auditing firms or tax accounting firms for which a majority of their
employees fall under any of items 1 through 3.
Disclaimer: This translation is for general reference purposes only and is provided on an “as is” basis with no warranties made whatsoever. Attorney Roderick H. Seeman (licensed in the USA) shall not be responsible for any consequences resulting from the use of this translation. Reliance must be placed on the original Japanese text of the laws. In the text of the translation article headings are added in parenthesis are not in the Japanese language original and are added only for the purposes of enhanced comprehension.
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