Viewpoint... New Company Law Research: Interpretation of the core issues of the company registration system.
Published:
2024-05-07
The new Company Law has written "company registration" into the law for the first time as a special chapter, which has great institutional value. The design of the system gives the company the legal status of legal entity qualification. By publicizing the business matters related to the company to the market subject, it shows the type, scale and ability of the company's business activities to the society, reduces the cost of market subjects to obtain information from each other, provides the efficiency of market education, maintains transaction security, and facilitates the state to maintain an orderly market economic order.
ObjectiveRecord
Contents and types of 1. company registration
(I) Content
(II) type
Legal effect of 2. company registration
(I) establishment effect
effectiveness of (II) public trust
(III) confrontation effectiveness
Company Change Registration of 3. Company Registration
(I) Application for Change of Registration Materials
(II)'s request for company change registration.
Foreword
Company registration refers to the act of the applicant applying to the company registration authority in accordance with the law when the company is established, changed or terminated, and the registration authority approves and records the statutory registration items after examination. The new Company Law has written "company registration" into the law for the first time as a special chapter, which has great institutional value. The design of the system gives the company the legal status of legal entity qualification. By publicizing the business matters related to the company to the market subject, it shows the type, scale and ability of the company's business activities to the society, reduces the cost of market subjects to obtain information from each other, provides the efficiency of market education, maintains transaction security, and facilitates the state to maintain an orderly market economic order.
Contents and types of 1. company registration
(I) Content
(II) type
1. Registration of establishment
2. Change Registration
3. Cancellation of registration
4. Cancellation of registration
Legal effect of 2. company registration
(I) establishment effect
1, China's law on the company to adopt compulsory registration doctrine, company registration has the effect of establishment, is the company to obtain the legal entity qualification of the necessary conditions.
2. Legal consequences of non-registration.
(1) Civil liability
If the company is not established or fails to be established, the promoters shall bear the corresponding legal consequences, and multiple promoters shall bear joint and several liability.
(2) Administrative responsibility
Failure to register the company in accordance with the law, and fraudulent use of the company's name will face the risk of administrative penalties.
(3) Criminal liability
Failure to register a company in accordance with the law, and fraudulent use of the company's name to defraud public or private property may constitute a crime of fraud.
effectiveness of (II) public trust
As a bona fide third party, once the company registration is registered, the third party has reason to believe that the registration content is authentic, and the legal consequences of the legal facts with the company should be protected. For example, after the company's shareholders' meeting decided to change the legal representative, it did not register the change with the company registration authority. And the original legal representative still in the name of the company to sign a contract, then a bona fide third party has the right to claim that the contract has effect on the company.
(III) confrontation effectiveness
As a company, a third party is presumed to have knowledge of the registered matter (even if it does not) once the registered matter is registered or registered as a change. For example, the shareholders' meeting of the company decided to change the legal representative and registered the change with the company registration authority. And the original legal representative still in the name of the company to sign a contract, then the company can claim that the original legal representative has no right to act, the contract does not have effect on the company.
Company Change Registration of 3. Company Registration
(I) Application for Change of Registration Materials
1. If a company applies for changing the company name, domicile, registered capital, business scope, name of the legal representative, name or name of the shareholder of a limited liability company or promoter of a joint stock limited company, it shall submit to the company registration authority the application for change registration signed by the legal representative of the company, the change resolution or decision made in accordance with the law and other documents.
2. If the registration of the change of the company involves the amendment of the articles of association, the amended articles of association shall be submitted.
3. If the company changes its legal representative, the application for registration of change shall be signed by the legal representative after the change. This clause resolves the dispute that the company registration could not be changed due to the non-cooperation of the original legal representative before the amendment of the Company Law.
(II)'s request for company change registration.
The registration of company change is closely related to the interests of the company, shareholders and third parties. There are many forms of company change registration, that is, including the parties agreed to change registration, but also including judicial compulsory change registration. The registration of consensual changes is an autonomous act within the company, and the company can handle it by submitting the necessary documents to the registration authority in accordance with the provisions of the articles of association. Judicial compulsory change registration is the judicial organ in accordance with the effective legal documents, notify the registration authority to assist in handling, the principle is that no internal resolution documents and consent of the company, is a manifestation of the judicial organ to implement public power behavior.
In practice, due to the company's internal or with the third party can not form a unified meaning, resulting in the company can not apply to the registration authority to change the registration, thus infringing on the company, shareholders, the legitimate rights and interests of the third party, resulting in a large number of disputes. In this regard, Article 21 of the "Provisions on the Cause of Action in Civil Cases" formulated by the Supreme People's Court stipulates "264. Request to change company registration disputes".
1. Subject of litigation
The plaintiff:The party who has an interest in the registration of the company and has an objection. That is, it can be internal personnel such as shareholders, legal representatives, directors, supervisors, managers, etc., or external personnel such as equity transferees, impersonated third parties, etc.
The accused:Company.
2. Jurisdictional Court
Special territorial jurisdiction, generally by the company's domicile of the people's court jurisdiction. However, the jurisdiction of the agreement cannot be ruled out, and the two parties may, by agreement, choose the jurisdiction of the people's court in the place where the original defendant has his domicile, the place where the contract is performed, the place where the contract is signed, and other places that are actually related to the dispute.
Note: The Supreme People's Court (2016) Supreme People's Court Civil Jurisdiction No. 154, (2019) Supreme People's Court Civil Jurisdiction No. 458 Judgment View: Special territorial jurisdiction cannot exclude agreement jurisdiction.
3. Common types of disputes:
① To remove the legal representative registration disputes;
The legal representative and the company belong to the entrustment contract relationship, when there is no entrustment relationship or the entrustment relationship is terminated, the company shall handle the change registration for it, and if it is lazy or unable to handle the change registration, the legal representative may take judicial means to request the court to remove the relevant registration matters.
Such disputes are common in cases where the legal representative resigns, does not want to continue to be named, and is impersonated. In such cases, the people's court focuses on examining the reasons for the request for removal, whether the company's internal remedies have been exhausted, and whether there is a purpose to evade liability.
② Disputes over the change of company registration requested by the transferee in the equity transfer;
Such disputes are common in the transfer of shares in a limited company because the transfer of shares by shareholders of a limited company does not require the registration of a change of company. In order to promote the equity transactions of limited liability companies and ensure the stability of transactions, after the new revision of the Company Law, the notification procedures for the transfer of shares of limited liability companies and the remedies for changes in registration have been clarified for the first time.
The notice requests the company to register the change with the registration authority is the pre-procedure of this lawsuit, and only if the company refuses or fails to reply within a reasonable period of time, the transferor or transferee may bring a lawsuit to the people's court in accordance with the law. The people's court focuses on examining: the basis of the equity change, the validity of the equity transfer agreement, whether the notification obligation of the equity transfer is fulfilled, whether the right of first refusal is waived, whether the notification obligation of the change registration is fulfilled, and the reasons for the failure to change.
It should be noted that disputes requesting a company to change its registration usually intersect with disputes over shareholder qualification confirmation, disputes over shareholder register records, disputes over equity transfer, etc., including disputes between shareholders and the company, as well as disputes between shareholders and shareholders, and pay attention to clarifying the subject status of different lawsuits.
③ To remove or change the disputes of directors, supervisors and managers;
The company's directors, supervisors, and senior management personnel do not belong to the company registration items stipulated in Article 32 of the new "Company Law. However, according to Article 9 of the Regulations on the Administration of Registration of Market Entities, it is a matter that should be filed with the registration authority. If it involves the change of the filing information of the above-mentioned matters, whether it can be sued to the people's court on the grounds of requesting to change the company registration dispute is not clearly stipulated in the current laws and judicial interpretations. However, Article 10 of the new "Company Law" stipulates that the legal representative shall be a director or manager who performs company affairs on behalf of the company. Therefore, the removal or change of the legal representative is generally accompanied by a change in the record of the director or manager. In judicial practice, requests for the removal or change of directors, supervisors and managers are also generally filed and registered to request the change of company registration disputes as a cause of action.
Such disputes are common in cases such as the resignation of an executive, the registration of an executive in the name of another person, and the replacement of the board of directors after the transfer of shares.
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