Viewpoint... Analysis of non-litigation solutions that are registered as shareholders, legal representatives, and executives of the company.
Published:
2022-04-22
The Status Quo and Negative Effects of 1. Impersonation Registration In recent years, in order to optimize the business environment in the market, the company registration authority has continued to promote the reform of the commercial system. The company registration mostly adopts a formal review system, allowing the shareholders of the company to not sign on the spot, but the entrusted agent to submit the materials on their behalf. The company registration authority will register when the submitted materials are complete and conform to the legal form. The simplification of the company registration system, coupled with the low cost of illegality and other reasons, has led to many cases of being falsely registered as company shareholders, legal representatives and senior executives, and the number of falsely registered cases is on the rise. In this regard, the impersonated person is prone to the following risks: (I) conflict with their real career If the impostor or his close relatives are public officials or engaged in other similar occupations, such personnel are often not allowed to work part-time in other companies. After they are falsely registered as shareholders, legal representatives, or senior executives of other companies, it will directly affect Appointment and removal of their positions. In view of the fact that most of the companies involved in the impostor registration are leather bag companies, if the company fails to make tax declaration according to law, the tax department will list the relevant personnel as abnormal personnel, which will directly lead to the restriction of the impostor's normal operation of the company or tax formalities. (II) creditors claim that shareholders are responsible for making up their capital contributions. Article 22 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "When the company's property is insufficient to pay off the debts, the creditor claims that the shareholders who have not paid their capital contributions, and other shareholders or promoters at the time of the establishment of the company If the company is jointly and severally liable for the company's debts within the scope of unpaid capital contributions, the people's court shall support it in accordance with the law". (III) creditors claim liability for shareholder liquidation obligations Article 18 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "Shareholders of a limited liability company, directors and controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in The company's property is devalued, lost, damaged or lost, and the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused. The people's court shall support according to law". Analysis on the Difficulties of 2. Solving the Impersonation Registration by Lawsuit In view of the problem of being falsely registered as shareholders, legal representatives and senior executives of the company, some of the impostors choose to take litigation to protect their rights, that is, 1. file a civil lawsuit and request the people's court to confirm that they do not have the qualification of shareholders, or 2. file an administrative lawsuit and request the people's court to cancel the registration administrative act of the company registration authority. If an impostor brings a civil lawsuit, that is, a lawsuit for confirmation of shareholder qualification is filed on the grounds that the intention is not true. Although the defendant cannot provide effective counter-evidence in this case, if the registered company is involved in external debts or other responsibilities, such lawsuits often involve the protection of the reasonable trust interests of bona fide third parties, and the impostor may still bear the corresponding responsibilities of shareholders or senior executives. In addition, even if the court decides that the impersonated person does not have the qualification of shareholder, the company registration authority can only make a change of registration, rather than cancel the registration, which also means that the impersonated person still has the legal qualification of shareholder before, and should still bear the corresponding legal consequences. If an administrative lawsuit is filed by an impostor, the administrative organ claims to cancel the registration on the grounds that the administrative organ has not fulfilled its duty of careful examination when handling the registration. When responding to a lawsuit, the company registration department often submits that it only conducts a formal review of the application materials, and the applicant has promised in writing that the application materials are true and valid. Therefore, unless there are extreme typical situations such as the company registration authority and its staff knowing that the identity of the applicant for registration is not true and submitting false identity information materials, the people's court usually finds that the company registration authority has fulfilled its duty of careful examination, and it is difficult to find the violation of the law and thus revoke the corresponding registration. 3. the way of non-litigation settlement of false registration. In order to solve such problems, the State Administration of Market Supervision and Administration issued the "Guiding Opinions on Revoking the Fraudulent Use of Other People's Identity Information to Obtain Company Registration" (Guo Shi Jian Xin [2019] No. 128) in June 2019. Since then, the Regulations on the Administration of Registration of the People's Republic of China Market Entities and its Implementation Rules, which came into effect on March 1, 2022, have made detailed provisions. (I) legal provisions Article 40 of the Regulations on the Registration of the People's Republic of China Market Entities Where the registration of market entities is obtained by submitting false materials or concealing important facts by other fraudulent means, natural persons, legal persons and other organizations affected by the registration of false market entities may apply to the registration authority for cancellation of the registration of market entities. After accepting the application, the registration authority shall promptly conduct an investigation. If the investigation determines that there is a false market subject registration, the registration authority shall cancel the market subject registration. If the relevant market subjects and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time and registration items of the relevant market subjects to the public through the national enterprise credit information publicity system, and the publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. The person directly responsible for the market subject whose registration has been canceled due to the false market subject registration shall not apply for the market subject registration again within 3 years from the date of cancellation of the market subject registration. The registration authority shall publicize it through the national enterprise credit information publicity system. Detailed Rules for the Implementation of the Regulations on the Administration of Registration of the People's Republic of China Market Entities Article 50 the registration authority may, on the basis of the application of the parties concerned or on its own initiative, investigate the acts suspected of submitting false materials or concealing important facts by other fraudulent means to obtain the registration of market entities. Article 51 Natural persons, legal persons and other organizations affected by false registration may apply to the registration authority for cancellation of the registration of market entities. For false registration suspected of fraudulent use of the identity of a natural person, the fraudulent user shall cooperate with the registration authority to verify the identity information through online or offline channels. If the registration authority of the market subject suspected of false registration is changed, the current registration authority shall be responsible for handling the cancellation of registration, and the original registration authority shall assist in the investigation. Article 52 After receiving the application, the registration authority shall make a decision on whether to accept the application within 3 working days and notify the applicant in writing. Under any of the following circumstances, the registration authority may reject the case: (I) false registration of suspected fraudulent use of the identity of a natural person, and the fraudulent use fails to pass the verification of identity information; (II) the market entity suspected of false registration has been canceled, except for the application for cancellation of registration; (III) other cases of inadmissibility according to law. Article 53 After accepting the application, the registration authority shall complete the investigation within three months and make a timely decision to revoke or not to revoke the registration of market entities. If the situation is complicated, it may be extended for 3 months with the approval of the person in charge of the registration authority. During the investigation period, if the relevant market entities and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time, registration items, and contact information of the registration authority of the suspected false registration market entity to the public through the national enterprise credit information publicity system. The publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. Article 56 After the registration authority has made a decision to cancel the registration, it shall publicize it to the public through the national enterprise credit information publicity system. (II) specific recommendations To sum up, the author suggests that after the relevant personnel are found to be falsely registered as shareholders, legal representatives and senior executives of the company, they should give priority to non-litigation to solve the relevant problems. According to the relevant laws and regulations, the author has sorted out the relevant operating procedures: 1. After discovering the fact of being falsely registered, the relevant personnel shall promptly report to the police and submit an application for revocation to the registration authority; 2. The registration authority shall verify the identity information of the impostor, and the impostor shall cooperate with the submission of handwriting identification report, alarm record and other evidence; 3. The registration authority conducts an investigation of the person under investigation, the relevant personnel of the company, the registration agent or the interested party; 4. The registration authority solicits opinions from relevant departments such as public security, taxation, finance, human resources and social security; 5. After 45 days of investigation and identification of relevant facts or publicity, the registration authority may revoke the registration of market entities.
The Status Quo and Negative Effects of 1. Impersonation Registration
In recent years, in order to optimize the business environment in the market, the company registration authority has continued to promote the reform of the commercial system. The company registration mostly adopts a formal review system, allowing the shareholders of the company to not sign on the spot, but the entrusted agent to submit the materials on their behalf. The company registration authority will register when the submitted materials are complete and conform to the legal form. The simplification of the company registration system, coupled with the low cost of illegality and other reasons, has led to many cases of being falsely registered as company shareholders, legal representatives and senior executives, and the number of falsely registered cases is on the rise.
In this regard, the impersonated person is prone to the following risks:
(I) conflict with their real career
If the impostor or his close relatives are public officials or engaged in other similar occupations, such personnel are often not allowed to work part-time in other companies. After they are falsely registered as shareholders, legal representatives, or senior executives of other companies, it will directly affect Appointment and removal of their positions.
In view of the fact that most of the companies involved in the impostor registration are leather bag companies, if the company fails to make tax declaration according to law, the tax department will list the relevant personnel as abnormal personnel, which will directly lead to the restriction of the impostor's normal operation of the company or tax formalities.
(II) creditors claim that shareholders are responsible for making up their capital contributions.
Article 22 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "When the company's property is insufficient to pay off the debts, the creditor claims that the shareholders who have not paid their capital contributions, and other shareholders or promoters at the time of the establishment of the company If the company is jointly and severally liable for the company's debts within the scope of unpaid capital contributions, the people's court shall support it in accordance with the law".
(III) creditors claim liability for shareholder liquidation obligations
Article 18 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "Shareholders of a limited liability company, directors and controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in The company's property is devalued, lost, damaged or lost, and the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused. The people's court shall support according to law".
Analysis on the Difficulties of 2. Solving the Impersonation Registration by Lawsuit
In view of the problem of being falsely registered as shareholders, legal representatives and senior executives of the company, some of the impostors choose to take litigation to protect their rights, that is, 1. file a civil lawsuit and request the people's court to confirm that they do not have the qualification of shareholders, or 2. file an administrative lawsuit and request the people's court to cancel the registration administrative act of the company registration authority.
If an impostor brings a civil lawsuit, that is, a lawsuit for confirmation of shareholder qualification is filed on the grounds that the intention is not true. Although the defendant cannot provide effective counter-evidence in this case, if the registered company is involved in external debts or other responsibilities, such lawsuits often involve the protection of the reasonable trust interests of bona fide third parties, and the impostor may still bear the corresponding responsibilities of shareholders or senior executives. In addition, even if the court decides that the impersonated person does not have the qualification of shareholder, the company registration authority can only make a change of registration, rather than cancel the registration, which also means that the impersonated person still has the legal qualification of shareholder before, and should still bear the corresponding legal consequences.
If an administrative lawsuit is filed by an impostor, the administrative organ claims to cancel the registration on the grounds that the administrative organ has not fulfilled its duty of careful examination when handling the registration. When responding to a lawsuit, the company registration department often submits that it only conducts a formal review of the application materials, and the applicant has promised in writing that the application materials are true and valid. Therefore, unless there are extreme typical situations such as the company registration authority and its staff knowing that the identity of the applicant for registration is not true and submitting false identity information materials, the people's court usually finds that the company registration authority has fulfilled its duty of careful examination, and it is difficult to find the violation of the law and thus revoke the corresponding registration.
3. the way of non-litigation settlement of false registration.
In order to solve such problems, the State Administration of Market Supervision and Administration issued the "Guiding Opinions on Revoking the Fraudulent Use of Other People's Identity Information to Obtain Company Registration" (Guo Shi Jian Xin [2019] No. 128) in June 2019. Since then, the Regulations on the Administration of Registration of the People's Republic of China Market Entities and its Implementation Rules, which came into effect on March 1, 2022, have made detailed provisions.
(I) legal provisions
Article 40 of the Regulations on the Registration of the People's Republic of China Market Entities
Where the registration of market entities is obtained by submitting false materials or concealing important facts by other fraudulent means, natural persons, legal persons and other organizations affected by the registration of false market entities may apply to the registration authority for cancellation of the registration of market entities.
After accepting the application, the registration authority shall promptly conduct an investigation. If the investigation determines that there is a false market subject registration, the registration authority shall cancel the market subject registration. If the relevant market subjects and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time and registration items of the relevant market subjects to the public through the national enterprise credit information publicity system, and the publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject.
The person directly responsible for the market subject whose registration has been canceled due to the false market subject registration shall not apply for the market subject registration again within 3 years from the date of cancellation of the market subject registration. The registration authority shall publicize it through the national enterprise credit information publicity system.
Detailed Rules for the Implementation of the Regulations on the Administration of Registration of the People's Republic of China Market Entities
Article 50For acts suspected of submitting false materials or concealing important facts by other fraudulent means to obtain registration of market entities, the registration authority may, on the basis of the application of the parties concerned or on its own initiative, conduct an investigation on its own initiative.
Article 51Natural persons, legal persons and other organizations affected by false registration may apply to the registration authority to cancel the registration of market entities. For false registration suspected of fraudulent use of the identity of a natural person, the fraudulent user shall cooperate with the registration authority to verify the identity information through online or offline channels. If the registration authority of the market subject suspected of false registration is changed, the current registration authority shall be responsible for handling the cancellation of registration, and the original registration authority shall assist in the investigation.
Article 52After receiving the application, the registration authority shall make a decision on whether to accept the application within 3 working days and notify the applicant in writing. Under any of the following circumstances, the registration authority may reject the case:
(I) false registration of suspected fraudulent use of the identity of a natural person, and the fraudulent use fails to pass the verification of identity information;
(II) the market entity suspected of false registration has been canceled, except for the application for cancellation of registration;
(III) other cases of inadmissibility according to law.
Article 53After accepting the application, the registration authority shall complete the investigation within 3 months and make a timely decision to revoke or not to revoke the registration of market entities. If the situation is complicated, it may be extended for 3 months with the approval of the person in charge of the registration authority.
During the investigation period, if the relevant market entities and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time, registration items, and contact information of the registration authority of the suspected false registration market entity to the public through the national enterprise credit information publicity system. The publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject.
Article 56After the registration authority has made a decision to cancel the registration, it shall publicize it to the public through the national enterprise credit information publicity system.
(II) specific recommendations
To sum up, the author suggests that after the relevant personnel are found to be falsely registered as shareholders, legal representatives and senior executives of the company, they should give priority to non-litigation to solve the relevant problems. According to the relevant laws and regulations, the author has sorted out the relevant operating procedures:
1. After discovering the fact of being falsely registered, the relevant personnel shall promptly report to the police and submit an application for revocation to the registration authority;
2. The registration authority shall verify the identity information of the impostor, and the impostor shall cooperate with the submission of handwriting identification report, alarm record and other evidence;
3. The registration authority conducts an investigation of the person under investigation, the relevant personnel of the company, the registration agent or the interested party;
4. The registration authority solicits opinions from relevant departments such as public security, taxation, finance, human resources and social security;
5. After 45 days of investigation and identification of relevant facts or publicity, the registration authority may revoke the registration of market entities.
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