Talk about the extension of the duty of prudent examination of the company registration authority in the act of industrial and commercial registration -- the risk and suggestion of the administrative litigation of falsely registered companies using other people's identity information.

The author found from the recent industrial and commercial administrative registration dispute cases, based on the fact that the company registration authority in the industrial and commercial establishment (change) registration is generally based on formal review, supplemented by limited substantive review, objectively led to a lot of fraudulent use of other people's identity documents, false registration behavior occurred, and the judicial organs for such disputes, in line with the protection of citizens' legal private rights, there is also a tendency to strictly grasp the prudential review obligations of the company registration authority, which in turn has led to the legal revocation of the industrial and commercial establishment (change) registration of many such companies. The company, as an independent and external liability of the legal person proposed subject, once the establishment registration is revoked for the above reasons, it is likely to produce a series of chain adverse reactions (the protection of the interests of the company's creditors and other interested parties and even administrative compensation, etc.).
In view of the above reasons, the author intends to discuss the extension of the duty of prudent examination of the administrative organ of industrial and commercial registration from the requirements of the duty of prudent examination in the administrative license of industrial and commercial registration and the spirit of trial in judicial practice, and put forward some suggestions on the treatment and prevention of the risk of such cases.

Analysis of the specific elements of prudent examination by administrative organs in the current legal system of industrial and commercial administrative registration in 1.

According to Article 31 and Article 34 of the "Administrative License Law", "when applying for an administrative license, an applicant shall truthfully submit relevant materials to the administrative agency and reflect the true situation, and shall be responsible for the authenticity of the substance of the application materials. The administrative organ shall not require the applicant to submit technical materials and other materials that have nothing to do with the administrative license matters it applies for. "the administrative organ shall examine the application materials submitted by the applicant. If the application materials submitted by the applicant are complete and conform to the legal form, and the administrative organ can make a decision on the spot, it shall make a written decision on the administrative license on the spot.

According to Articles 3, 9 and 10 of the provisions on enterprise registration procedures, "the enterprise registration authority shall examine whether the application materials are complete and conform to the legal form. According to the statutory conditions and procedures, if the substantive content of the application materials needs to be verified, it shall be verified in accordance with the law"; "After review, if the applicant's application materials are complete and conform to the statutory form, the enterprise registration authority shall decide to accept them"; "The application materials are complete It refers to all the materials submitted by the applicant in accordance with the requirements of the enterprise registration laws, administrative regulations and rules announced by the State Administration for Industry and Commerce; the application materials conform to the statutory form means that the application materials conform to the statutory time limit, the recorded matters conform to the statutory requirements, and the document format conforms to the norms".

In other words, the company registration authority's review of industrial and commercial registration is based on the principle of formal review. For application materials that are complete and conform to the statutory form, the company registration authority should approve administrative registration after the formal review, and the above laws In the regulations, the two elements of the formal review (the application materials are complete and conform to the statutory form) also define specific review standards, and there are rules to follow in actual operation.

The provisions on substantive examination are only found in the principle provisions of Article 11 of the provisions on enterprise registration procedures ("if the enterprise registration authority considers it necessary to verify the substantive contents of the application materials, it shall send two or more staff members to verify the application materials. After verification, submit the "Report on Verification of Application Materials" and make a decision on whether to approve registration according to the verification situation "). There is no specific definition at the actual operation level. According to this article, as an auxiliary means, whether to start substantive examination depends entirely on the" free heart certificate "of the staff of the specific registration authority (or their personal professional ability and sensitivity). In addition, under the current policy background of relaxing the market access threshold for company registration, simplifying administrative examination and approval procedures, and shortening the time limit for administrative examination and approval, combined with practical factors such as small staff, heavy workload, and redundant business in the industrial and commercial registration review window, it is generally difficult to directly start a more rigorous substantive review.

2. from the level of administrative normative documents to see the limitation of the extension of the obligation of prudent review.

The author studied the normative documents issued by the State Council and the State Administration for Industry and Commerce, and found that from the perspective of administrative management, the extension of the duty of prudent examination generally requires the strict implementation of the formal examination system, and the trend of restriction is obvious.

The Circular of the State Council on Issuing the Reform Plan for the Registered Capital Registration System (No. 7 [2014] of the State Council) stipulates that "judicial remedies and criminal punishments shall be strengthened. The administrative duties of the government over the supervision and management of market entities and market activities shall be clarified, and the boundaries between civil and administrative disputes shall be distinguished. The civil rights of market entities shall be respected, and the administrative authorities for industry and commerce shall conduct formal examination of the application materials in the industrial and commercial registration".

The "Implementation Opinions of the People's Government of Shandong Province on Implementing Guofa [2014] No. 7 Document to Promote the Facilitation of the Industrial and Commercial Registration System and Strengthen Market Supervision" (Lu Zhengfa [2014] No. 5) and the "Jinan Municipal People's Government on Reforming the Industrial and Commercial Registration System and Optimizing The Implementation Opinions of the Business Environment (Ji Zhengfa [2014] No. 11) also clearly pointed out that" strengthen judicial relief and criminal punishment. Clarify the government's administrative responsibilities for the supervision and management of market entities and market activities, distinguish the boundaries between civil disputes and administrative disputes, respect the civil rights of market entities, the applicant is responsible for the authenticity, validity, and legality of the application materials, and the registration authority is responsible for the application materials Implement formal review."

Even in the ''Notice on Further Unifying and Regulating the Administration of Enterprise Registration and Registration'' issued by the General Office of the State Administration for Industry and Commerce in early 2018, it is still required to strictly implement the formal review system, and require formal review of the application materials in the industrial and commercial registration link. Those with complete materials and legal forms should go through industrial and commercial registration. Local industrial and commercial departments must increase their propaganda efforts, do a good job of communication, gain social understanding, and strive for judicial respect, to guide the infringed to file a civil lawsuit against the infringer, the registration authority should respect and strictly implement the judicial judgment or ruling, and not investigate the responsibility of the non-fault registration personnel.

In summary, at the level of administrative norms, the company registration authority is required to strictly implement the formal review system, and there is not too much hint that appropriate substantive review measures need to be taken.

3. the Grasp Scale of Prudent Review Obligation from the Spiritual Level of Judicial Trial

According to Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative License Cases, the defendant has performed prudent and reasonable review duties in accordance with legal procedures. If the administrative license decision is illegal due to the actions of others, he shall not be liable for compensation; The Supreme People's Court pointed out in the "Minutes of the Symposium on Several Issues Concerning the Trial of Administrative Cases on Company Registration" that the provisions on the obligation of prudent review, mainly for the company registration authority in the registration process there is a major fault, such as there is clear evidence that the registration materials may be false, or non-professionals in the absence of professional and technical identification can also be found in doubt, and the company registration authority did not take further investigation and verification measures led to the wrong registration and so on. If the company registration authority is unable to confirm the authenticity of the signature or seal in the application materials, it may require the applicant to provide further evidence or relevant personnel to be present for confirmation.

In summary, in judicial practice, the so-called serious fault in the duty of due diligence should be a situation where there is already clear evidence that the registration materials may be false, or where non-professionals can find doubts without technical discrimination. Of course, since the case has entered the judicial process, the plaintiff will generally have certain evidence to prove that the application materials are false (such as the loss of ID card, inconsistent handwriting, etc.). The author believes that it is not appropriate to use the existing evidence to reverse the fault liability of the specific administrative staff at that time. It is still necessary to fully respect the legislative intent and spirit of the form review stipulated in the Administrative Licensing Law.

Trial Results and Analysis of False Materials Application for Industrial and Commercial Registration Cases in 4. Judicial Practice

In many such cases, as long as the plaintiff submits the corresponding evidence or the court finds out through the judicial authentication procedure according to law that the application materials are false materials (such as the loss report certificate of ID card, the judicial authentication conclusion with false signature in the application materials, etc.), the people's court generally tends to support the plaintiff's application and revoke the industrial and commercial establishment (change) registration of the company on the grounds of providing false materials, specific analysis is as follows:

The legal basis for the revocation of industrial and commercial registration is relatively sufficient for (I) to provide false materials.

Article 198 of the "Company Law", in violation of the provisions of this law, falsely reporting registered capital, submitting false materials or using other fraudulent means to conceal important facts to obtain company registration, the company registration authority shall order corrections; submit false materials or use other fraudulent means to conceal The company that conceals important facts shall be fined not less than 50,000 yuan but not more than 500,000 yuan; if the circumstances are serious, the company registration shall be revoked or the business license shall be revoked.

Article 64 of the Regulations on the Administration of the People's Republic of China Company Registration, where a company registration is obtained by submitting false materials or concealing important facts by other fraudulent means, the company registration authority shall order it to make corrections and impose a fine of not less than 50000 yuan but not more than 500000 yuan; if the circumstances are serious, the company registration shall be revoked or the business license shall be revoked.

Article 17 of the Provisions on Enterprise Registration Procedures, under any of the following circumstances, the enterprise registration authority or its superior authority may revoke the registration at the request of the interested party or on the basis of its functions and powers: if the licensee obtains the registration by fraud, bribery and other improper means, it shall be revoked.

That is to say, in judicial practice, regardless of whether the company registration authority has fulfilled its duty of prudent examination and whether it is subjectively at fault, as long as the application materials are found to be fraudulent after trial, the people's court tends to revoke them in accordance with the law.

The determination of whether the company registration authority is at fault in the (II) judgment.

In similar lost judgment instruments, there are mostly two types of situations as to whether the company registry has fulfilled its duty of due diligence:

1. It is believed that although the company registration authority has conducted a formal review of the materials provided and fulfilled its obligation of prudent review, the industrial and commercial registration should be revoked because the applicant has provided false application materials.

2. Citing the provisions on substantive examination in Article 11 of the provisions on enterprise registration procedures, it is considered that when the company registration authority checks the application materials, it should not only conduct formal examination on whether the application materials are complete, but also conduct substantive examination on the authenticity of the registration materials, That is, to conduct substantive examination on whether the contents of the application are the true intention of shareholders and whether the registration materials are true.

The author believes that, combined with the spirit of the Supreme People's Court's "Minutes of the Symposium on Several Issues Concerning the Trial of Administrative Cases on Company Registration", unless there is clear evidence to prove that the company registration authority has made major mistakes in the registration process, such as obvious false content in the submitted materials, Or the naked eye to identify the situation where there are obvious doubts, etc., it is not appropriate to directly determine that the company registration authority has not fulfilled its obligation of prudent review.

5. recommendations on addressing the risks of such cases at source

As mentioned earlier, because the registration of the establishment of a company is related to the legitimate rights and interests of the company, shareholders and creditors, and to the stability of the social and economic order, it is an extremely serious administrative licensing act. Once it is revoked by a judicial decision, a series of adverse social reactions or chain litigation may occur. The author suggests that the extension of formal review should be appropriately expanded or the threshold for the initiation of substantive review should be further clarified to effectively prevent the occurrence of such cases:

The (I) recommends that the company registration authority and the public security organs realize the networking of the ID card data system and the real-time query function as soon as possible.

The root cause of most similar cases is that illegal personnel fraudulently use other people's lost or stolen ID cards to apply for industrial and commercial registration. If the public security department and the company registration authority can connect through technical means to realize the real-time query function of ID card information, the act of handling industrial and commercial registration of ID cards with lost information can be warned or trigger substantive examination procedures, which will greatly reduce the occurrence of illegal acts of using other people's identity information to handle industrial and commercial registration.

From the "Notice on Further Unifying and Regulating the Administration of Enterprise Registration" issued by the General Office of the State Administration for Industry and Commerce in early 2018, we can already see the efforts made by the company registration authority. The document clearly states that "the State Administration for Industry and Commerce will formulate and issue a notice on the implementation of enterprise registration identity information management, clarify the specific arrangements and work requirements for the implementation of identity information management, and gradually realize the nationwide online application of identity information once registered verification", "The State Administration for Industry and Commerce will establish a unified national identity information management system. From December 31, 2018, when handling the registration business, the identity information management object shall complete the identity verification through the identity information management system, and those who defraud the industrial and commercial registration by submitting false materials and fraudulently using other people's identity shall bear the corresponding legal liability". It is believed that in the near future, the illegal behavior of falsely using other people's identity information to register companies will be greatly curbed.

(II) reference to the bank counter financial business and second-hand housing transactions in the face sign, photo and other technical means, improve the prudent review work.

The author believes that the establishment of company registration behavior, whether it is from the maintenance of social and economic order, or the impact on interested parties, is more than the behavior of housing sales or financial business handling behavior. The company registration authority can completely In the form of company business registration review, at the expense of part of the efficiency, learn from the financial business at the bank counter and the technical means such as face-to-face signing and photographing in the second-hand housing transaction business handled by the housing management department to ensure the safety of the examination of the establishment (change) registration behavior.

(III) regulate the behavior of industrial and commercial registration agencies (agents), highlighting the credit disciplinary function.

According to the "Regulations on the Administration of Company Registration" and the "Specifications for Materials Submitted by the State Administration for Industry and Commerce", generally in the company establishment or change registration submission materials, it is necessary to provide "certificate of designated representative or jointly entrusted agent". The representative or agent is the specific handler who applies for the administrative license registration application. Because the handler must handle the affairs in the window department, his identity information is generally true, however, according to the current laws and regulations, in the case of false application materials, it is often impossible to investigate the corresponding legal liability of the industrial and commercial registration agency or agent, and there is no disciplinary measure. It is suggested to further standardize the behavior of such industrial and commercial registration agency (or agent), and appropriately take certain disciplinary and regulatory measures, and require it to promise to bear appropriate legal responsibility for the authenticity of the submitted materials, further curb the arbitrariness of company registration and the concealment of fraud.

The (IV) introduces substantive review in due course for key links such as the registration of the establishment of high-risk companies and the registration of changes in equity transfers.

In the process of industrial and commercial establishment (change) registration, fraud is mostly subtle and highly hidden. If too much attention is paid to the safety of examination, it will inevitably affect the efficiency of examination, which violates the basic principle of "administrative license form examination" in the Administrative License Law. It is suggested that for some key links that are easy to cause disputes or fraud, such as company establishment registration, equity transfer change registration, etc., through administrative regulations and departmental rules, introduce the necessary substantive review and clarify the specific elements of the substantive review.