The seventh meeting of the Standing Committee of the 14th National People's Congress voted to pass the newly revised Company Law on December 29, which will come into force on July 1, 2024. The newly revised Company Law of the People's Republic of China (hereinafter referred to as the "New Company Law") amends and improves the relevant provisions of false registration. This article briefly compares and analyzes the relevant contents of false registration in the new Company Law and the current Company Law, in order to have a deeper understanding of the problem of false registration.
Comparative analysis before and after the revision
Specific provisions
Article 198 of the Company Law stipulates that anyone who violates the provisions of this Law by falsely reporting the registered capital, submitting false materials or using other fraudulent means to conceal important facts to obtain company registration shall be ordered to make corrections and shall be fined not less than 5% but not more than 15% of the amount of the falsely declared registered capital on the company that falsely declares the registered capitalCompanies that submit false materials or use other fraudulent means to conceal 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's registration shall be revoked or the business license shall be revoked.
Article 39 of the new Company Law stipulates that: "Where a company is registered by falsely reporting its registered capital, submitting false materials or using other fraudulent means to conceal material facts, the company registration authority shall revoke it in accordance with the provisions of laws and administrative regulations." Article 250 stipulates: "Whoever, in violation of the provisions of this Law, falsely declares the registered capital, submits false materials or adopts other fraudulent means to conceal important facts to obtain company registration, the company registration authority shall order it to make corrections, and impose a fine of not less than 5% but not more than 15% of the amount of the falsely declared registered capital on the company that falsely declares its registered capital;Companies that submit false materials or use other fraudulent means to conceal important facts shall be fined not less than 50,000 yuan but not more than 2 million yuan;where the circumstances are serious, the business license shall be revoked;The directly responsible managers and other directly responsible personnel are to be fined between 30,000 and 300,000 RMB. ”
Comparative analysis
The new Company Law no longer deals with the cancellation of registration in the chapter on legal liability, but provides for revocation in Article 39 by applying the provisions of other laws and administrative regulations.
The new Company Law stipulates heavier legal liabilities than the current Company Law for those who submit false materials or use other fraudulent means to conceal important facts to obtain company registration, and adds a new content of "pursuing the legal liability of the directly responsible person in charge and other directly responsible personnel".
Clarify the "four highlights".
It is clear that "there is a difference between hanging and withdrawing".
It can be judged from the provisions of the new Company Law on "revoking the company's registration and imposing corresponding administrative penalties" on false registration, and the revocation of company registration is not an administrative penalty. At the same time, according to the Reply Opinions of the Legislative Affairs Committee of the Standing Committee of the National People's Congress on the Legal Nature of "Revocation of Company Registration" in Article 198 of the Company Law (Legislative Affairs Committee Fu 2017 No. 2), the revocation of the registration of market entities obtained by fraud and other improper means is a correction of illegal acts and is not an administrative penalty. The revocation of a business license is an administrative penalty measure, and there is an essential difference between the two: in terms of legal nature, the revocation of registration is a correction of the registration behavior of a market entity;The revocation of a business license is a deprivation of the business qualifications of a market entity.
From the perspective of the causes of occurrence, the reasons for the cancellation of registration generally occur before the registration of the market entity, or the reasons of the registration authority, or the reasons of the applicant;The reasons for the revocation of business licenses generally occur in the course of the market entity's business activities, and are the reasons of the market entity itself. Third, from the perspective of legal consequences, the cancellation of registration can not only revoke the establishment registration, but also revoke the change registration, and can also revoke the cancellation of the registration;The revocation of the business license means that the business qualification of the market entity disappears, and its civil subject qualification still exists, and all legal liabilities are borne by the market entity.
Clarify the "separation of penalties".
Article 198 of the Company Law reads: "......if the circumstances are serious, the company registration shall be revoked or the business license shall be revoked", which is too concise and difficult to distinguish between "revocation" and "punishment". However, the new Company Law no longer expresses the revocation of registration together with the imposition of administrative penalties, and clarifies the principle of "separation of revocation and fine". In addition, the Administrative Licensing Law, the Regulations on the Administration of Registration of Market Entities, and the Detailed Rules for the Implementation of the Regulations on the Administration of Registration of Market Entities all specify the relevant provisions on "shall be revoked" and "administrative penalties shall be imposed in accordance with law" for false registrations. Therefore, revocation is not a substitute for a penalty, and the penalty cannot cover revocation. Where false registration causes harmful consequences, the penalty should be "withdrawn in parallel". At the same time, it is also necessary to exercise discretion in combination with factors such as the specific circumstances of the violation and the harmful consequences, so as to achieve "proportionate punishment".
Clarify "true, legal and valid".
Article 30 of the new Company Law clearly states that "an application for the establishment of a company shall be submitted with an application for establishment registration, articles of association and other documents, and the relevant materials submitted shall be true, legal and valid." This provision is the basic requirement for applying for company registration, and it is also one of the most important obligations of the applicant, and its important significance lies in the need to ensure the validity of the company registration and ensure the effective implementation of registration management by the registration authority, and to protect social order and public interests. At the time of company registration, due to lack of legal knowledge, profit drive and other reasons, some applicants submitted materials with false circumstances such as signatures, fraudulent use of identities and addresses, etc., which seriously undermined the order of registration management and infringed on the interests of third parties and creditors. This clause clearly states "true, legal and valid", reminding the relevant personnel of the company and the obligations that the registration personnel should bear in the registration process, so as to avoid the occurrence of some false registration behaviors.
It is clear that "those who violate the law will be punished".
Article 250 of the new Company Law clearly states that "a fine of not less than 50,000 yuan but not more than 2 million yuan shall be imposed on a company that submits false materials or adopts other fraudulent means to conceal material facts."where the circumstances are serious, the business license shall be revoked;The directly responsible managers and other directly responsible personnel are to be fined between 30,000 and 300,000 RMB. However, the legal obligations of "directly responsible supervisors" and "other directly responsible persons" in the registration of the current Company Law are blank. The new Company Law expands the subject of liability for false registration from the registered company to the person in charge and other persons directly responsible, stipulates the legal responsibilities of market entities, supervisors and other responsible persons, and embodies the principle of "punishment for violations". Therefore, when investigating and handling false registration cases, it is necessary to investigate everything, not only the company involved in the case, but also the relevant supervisors and other responsible persons, that is, "three investigations in one case", and the result is likely to be "three penalties in one case".
Author |Beijing Yanqing District Market Supervision Bureau, Song Dexing, Zhang Yuhui.
Audit |Yu Jackie Chan Zhang Lijuan.
Edit |Chen Ying.
Internship Editor |Du Zongxi.
Produced by the New ** and Digital Publishing Department of China Industrial and Commercial Press.
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