Nowadays, there are rumors of hiring someone to be the legal representative, what are the provisions of the newly revised Company Law on the legal representative? Is it necessary to hire someone to be the legal representative? The author summarizes the following points for netizens' reference.
The first is the conceptual understanding of the legal representative
We understand that the legal representative must first clarify what is a legal person? What is a legal representative? Who is in charge under the Companies Act? What are the requirements for serving as a legal representative?
According to Article 57 of the Civil Code, a legal person is an organization that has the capacity for civil rights and civil conduct, and independently enjoys civil rights and bears civil obligations in accordance with the law.
According to Article 61 of the Civil Code, in accordance with the provisions of the law or the articles of association of the legal person, the person in charge of engaging in civil activities on behalf of the legal person is the legal representative of the legal person.
According to Article 10 of the Company Law, the legal representative of a company shall be a director or manager who performs corporate affairs on behalf of the company in accordance with the provisions of the company's articles of association.
According to Paragraph 1 of Article 265 of the Company Law, the manager of a company is a senior manager. Article 178 of the Company Law takes the form of a reverse enumeration of the conditions for serving as directors and senior managers, and cannot serve as a legal representative without the circumstances provided for in Article 178 of the Company Law. Where a person is sentenced to a criminal punishment for bribery, embezzlement of property, misappropriation of property, or undermining the order of the socialist market economy, or is deprived of political rights for committing a crime, and the period of enforcement has not exceeded 5 years, and a suspended sentence has been announced, 2 years have not yet passed since the expiration of the probationary period of the suspended sentence; Where a director, factory director, or manager of a company or enterprise in bankruptcy liquidation bears personal responsibility for the bankruptcy of the company or enterprise, it shall not be more than three years from the date on which the bankruptcy liquidation of the company or enterprise is completed; Serving as the legal representative of a company or enterprise whose business license has been revoked or ordered to close down due to violations of the law, and bears personal responsibility, has not exceeded three years from the date on which the company's or enterprise's business license was revoked or ordered to be closed; The individual is listed by the people's court as a judgment defaulter because the amount of debt he bears is relatively large and the debt is not paid off when it is due.
The second is the position of the legal representativeExecution
According to Article 62 of the Civil Code and Article 11 of the Company Law, the legal consequences of civil activities carried out by the legal representative in the name of the company shall be borne by the company. If the legal representative causes damage to others due to the performance of his duties, the company shall bear civil liability. After the company bears civil liability, it may recover compensation from the legal representative at fault in accordance with the provisions of the law or the articles of association.
From the above provisions, we can see that in the process of performing duties, only the legal representative who is at fault may be recovered by the company, and the consequences of his performance of duties are the responsibility of the company rather than the legal representative.
The third is the statutory duties of the legal representative
The Company Law stipulates that there are four types of work that must be done by the legal representative:
First, in paragraphs 1 and 3 of Article 35 of the Company Law, a company applying for a change of registration shall submit to the company registration authority an application for change of registration signed by the company's legal representative, a resolution or decision on the change made in accordance with the law, and other documents. If the company changes its legal representative, the application for change of registration shall be signed by the legal representative after the change.
Article 55 of the Company Law stipulates that the certificate of capital contribution of a limited liability company shall be signed by the legal representative and sealed by the company.
Article 149 of the Company Law of the Third People's Republic of China, if the shares are in paper form, the number of the shares shall also be indicated, signed by the legal representative, and sealed by the company.
Article 196 of the Company Law stipulates that if a company issues corporate bonds in paper form, it shall be signed by the legal representative and sealed by the company.
Fourth, special provisions for legal representatives
First, the second paragraph of Article 11 of the Company Law provides that the articles of association of the company or the shareholders' meeting shall not restrict the authority of the legal representative against the bona fide counterpart.
Article 504 of the Civil Code provides that if the legal representative of a legal person or the person in charge of an unincorporated organization enters into a contract beyond his authority, the act of the representative shall be valid unless the counterparty knows or should know that he has exceeded his authority, and the contract concluded shall take effect against the legal person or unincorporated organization.
Article 532 of the Civil Code provides that after the contract comes into effect, the parties shall not fail to perform their contractual obligations due to a change in their name or title, or a change in the legal representative, person in charge or undertaker.