About the company registered in the role of government

Keywords: company registration / good government / registration censorship

Summary: The Government should play what role in company registration, all-powerful government is the people make decisions, or do something of limited government, or inaction of the laissez-faire government? China's long-term company registration practice has proved that the executive power by the government through a substantive review of the company registration and company registration information did not make the truth more convincingly, in the area of ​​registration of the company to pursue all-powerful government's "good government" philosophy is not possible truly "good government" of desire, and to meet the requirements of market economy, market information services for the limited government may be more in line with the market economy on the "good government" demands. the moment has changed our concept of government administration in the implementation of company registration the principle form of Review, which is in the area of ​​registration of the company "good government" philosophy of change, but this philosophy more in the current institutional arrangements in order to be truly realized.



Human society has experienced an agricultural society, industrial society, business community and the so-called information society, its shape can be described as diverse, its history can be described as long, but without exception, always accompanied by one of the government, the role of size, its impact is good or bad But no one can get rid of, Joseph E Shi Dige Leeds with the words, is "from cradle to grave, from our lives without the impact of government activities." [1] (P.2 But what kind of government is good government, human needs, what kind of government, which is a state or government has ever since, was assiduous scholars, continue to explore things. "Although each person may want the government to take action in some way, but the government should be doing What's the problem, almost is how many different people, there are many kinds of views. "[2] (P 63)" good government "is a theory, but also a practice in the history of human development, indeed There are significant achievements of government, but not all governments are remarkable achievements in the use of government power embodied the area of ​​registration of companies, what kind of government is good government, in other words, to demonstrate the value of the company's registration information on the authenticity of the registration Government should act as what kind of role, this is a very worth considering.

First, the "good government" philosophy traceability

From a historical point of view, whether in theory or practice, whether it is politics or economics, the government's "good" and "bad" are mostly from the perspective of the relationship between government and the market to talk about and evaluate the government's economic functions beyond the their Political functions are given more attention, the government's economic functions of the theory of Western governments has become a core issue, therefore, talk about the government's good or bad most of the economic impact from the perspective of the government to carry out.

(A least government is the best government

"Less government control," also known as "negative sense of the government", "night watchman", "laissez-faire government," "minimum state" claim in addition to bearing protection functions, will reduce government intervention in the market to a minimum or even non-intervention, allowing the development of economic freedom, free competition and self-regulation. This view, based on the classic Adam Smith on behalf of the classical liberalism as represented in Adam Smith's view, the market mechanism seems to is omnipotent. Adam Smith's ideas were later inherited by many economists and develop, such as the famous French economist Say <<Introduction to Political Economy>> faithfully inherited Adam Smith traditional economic thinking, he believes, in the process of market economy, endless evils of government intervention, and let the economic actors will do its utmost to follow their own, either it is, individuals and countries will benefit, he obtained concluded that: "intervention itself is a bad thing." [3] (P. 156,199, another classical economist John Mueller of the West holds the same view: "Although the government informed, well-funded, in on the market to hire the most talented people, but all these are not enough to offset the weakness of one of its great that it is not so concerned about the results of operations. "[4] (P.536

With the same strain of classical economic liberalism advocated a Political philosophy of classical liberalism, modern liberalism of some representatives, such as Locke, Rousseau, Montesquieu and others, on the government to explore the origin and architecture, the concluded that: the government's presence is necessary, but at the same time limit the Government's power is legitimate. As early as 300 years ago, Locke, in his <<Two Treatises of Government>> proposed in the Government's main task is to protect the personal liberty and property, in addition, it can be "Da Saba" and what are not pipe in classical liberal in the eyes of the government's presence is both necessary and dangerous, is a "necessary evil." early British liberal thinker Thomas Hobbes as "Leviathan" to describe the strong state and government, while avoiding disadvantages based on human nature as the Government may "alienation" has become the largest of the potential threat to individual freedom, as desired by individual Kay free "Leviathan", Hobbes proposed a phrase so well-known slogan: "The state is a necessary evil." Thomas Paine in the <<knowledge>> also stated: "The Government is in the best case is only a necessary evil, but in the worst case he completely intolerable. "[5]

In the field of classical economic liberalism reject the Government's intervention in the economy, the purpose is to protect the free development of economic theory is rooted in the main market pArticipants with independent rational and self-judgment, in the pursuit of self-interest to maximize the process of social maximize the benefits of Political philosophy of classical liberalism focuses on limited government, designed to prevent abuse of government power to undermine individual freedoms, its philosophy is still based on the instinct of human nature while avoiding disadvantages of the decision, "All power to the people will be abuse of power, "the judge so," less government control is the best government "is a free capitalist economic and Political spheres during the pursuit of a common, even in the modern market economy," less government control is The best government "idea is still prevalent.

(Two comprehensive government intervention is the best government

"Comprehensive government intervention," also known as "unlimited government," "omnipotent government" is government intervention in social life full, unrestricted access to and control into all areas of society and at all levels, to replace the government's administrative measures the market mechanism.

1929-1933 world economic crisis, free market economy exposed a fatal fLaw, the government came into being a comprehensive theory of intervention in the economy, the Government's idea from the "less government control is the best government" to "full Government intervention is the best government, "the most representative of the Keynesian theory Keynesian theory of .1936 was published <<Employment, Interest and Money>> of classical economics, in-depth criticism, pointing out that" market failure "necessity and" government intervention "in need in the history of economics known as the" Keynesian revolution. "Keynes proposed that the Government should take active measures to be insufficient to compensate for market, hoping to" visible hand "to make up for the" invisible hand, "the lack of Keynes's thinking in the 1930s and 1940s at least twenty years after the time dominated the Western economy.

In addition to Keynesian economic theory advocating state intervention outside the political scientist for the state interventionism of the theoretical study of the functions of government no less, back in the late 19th century, to Green, Hobhouse, represented by thinkers had begun to study the British Government the need for intervention in social life, the results of the study, in the public interest issues involving state intervention does not affect personal freedom, because it can interfere with the free development of each citizen to provide more and better social conditions favorable social environment in the period of Keynesian economic theory prevail, the gradual rise of political nationalism, nationalism, the key point is that "a strong and effective government is characteristic of modern politics, but it is also the inevitable result of economic modernization." [6] (P.112

"Omnipotent government" ideology reflected in the philosophy of a "national first" concept, is the worship of government over-rational response in real life .19 century, with the highly developed capitalist economy, all kinds of social contradictions and economic problems continue to emerge, the myth of omnipotent markets experienced an unprecedented challenge, it can not effectively provide public goods, can not solve the economic life of a common external and can not get rid of the increasingly powerful monopoly, can not effectively address issues such as macroeconomic volatility So people look to the Government that the Government Yiqi of the "visible hand" to solve the problem, that strong economic functions of government is to rescue the "market failure" of the effective means in the concept of all-powerful government under the guidance of Western countries from the economic crisis Kunjing to get out, after the 20th century, 50 to 70 years to become the economic prosperity of the Western capitalist countries, the "golden age." Therefore, this period of good government philosophy is "all-powerful government is the best government."

(Three to obtain the appropriate government is the best government

Just as people revel in the all-powerful government created by the welfare state and modern civilization, much-touted "government intervention", the all-powerful government gradually exposed the inherent drawbacks of .20 since the 1970s, the capitalist world in an unprecedented "stagflation," people For the Keynesian theory and other state intervention doctrine of the doubt, but from an economic point of Keynes demonstrated the need for government intervention, government intervention in the economy but did not analyze the feasibility and possible negative effects. "government-created problems than It solves more problems, "against the increasing demands for government intervention," government failure "as was the concept of" market failure "like the concept stArted to become a Western economics, political science teachings of the main contents of quiet a long time resurgence of economic liberalism, economic liberalism is now known as the neo-liberal economic theory, (Note: After the 20th century, as opposed to classical liberalism, modern liberalism is actually composed of two factions: the new Code of liberalism and the new accounting white liberalism. neo-classical liberal trying to limit government functions, try to turn government functions reduce to a minimum, the weakest level, their purpose is to make the government back to Adam Smith • type of government there, representatives are: Kazakhstan Hayek, Nozick, Robert Nozick made the best country is the "weakest sense of the country," neo-liberalism is in the liberal tradition, within the functions of the government to maximize the most enhanced, the main representative is Friedman, it does not mean just asking the Government not to do, asking the Government should do the State is not a binding the hands of the spectators, but a system of creating and maintaining an active pArticipant in effective competition, and create conditions for compete as effectively as possible the Government should provide that beneficial to society, but by private business, but worth the service, that is, as the market economy to add. "[7] (P. 306 Thus," management was the appropriate government is the best government "is different from Adam Smith's laissez-faire, but also different from the Keynesian state interventionism, but try to find a balance between the two with the same strain of neo-liberalism is the" limited government "(Limited government concept The proposal, limited government is a multidimensional concept of meaning, "in the context of political science, limited government theory is limited powers theory, the theory is based on the priority of rights, the right to restrict the powers of the economic context, limited On the functions of government is limited theory, the theory is based on market efficiency, the market is better than the government, in the context of the philosophy, theory of limited government is a rational finite theory, the theory is based on bounded rationality, rationality is not universal. "[8]

Due to the long experience and the market economy a profound understanding of human nature, modern society, few people over and over believe that the Government obsessed market. Logic of the market with a non-self-consistency, so government intervention is inevitable, and state power but also has Buke Kong or excessive expansion, so the power of the government to make people care or vigilance and possible exclusion of state intervention, in this case, it is no longer any one kind of theory Bu restrictions embraced as dogma, but more dialectical and objective treatment of government and this point, even the liberal masters have a clear understanding Hayek:

Important is the quality of government activities, rather than quantity. A significant effect of the market economy, but the state as a precondition to take some action, some government action to enhance the role of the market economy, the very helpful, and the market economy can suffer more government action, as long as they are in line with efficient market operations, but for those free institutions are based on the principles of conflicts of government action, must be excluded, otherwise the system will be unable to free run, therefore, with a greater focus on economic matters, but only to those who contribute to the development of spontaneous economic power compared to the government measures, an economic activity but are often less concerned about taking the wrong measures of the government, will More seriously undermined the power of the market economy. [9] (P.281 Second, the company registered in the role of government

In addition to a few countries registered by the court or chambers of commerce, company registration in most countries by the executive branch of government are to be completed. (Note: the registration authorities in different countries, some countries by the court responsible for registration, such as Germany, Switzerland, South Korea, the new <<German Commercial Code>> Article 8 of the commercial register by the courts, but in fact Germany is currently underway to register the transfer of jurisdiction to the business line will be the pilot, some countries set up by the executive or specialized subsidiary administrative bodies for the commercial registration office, such as the United States and Britain, and some state courts and administrative bodies are the commercial registration office, such as France, some countries provide for the registration line will be responsible as commercial institutions, such as the Netherlands (see ZHOU Lin-bin, any first: <<Introduction to comparative commercial Law>>, Peking University Press, first edition 2000, pages 238-239.) company registered in the government's role is mainly reflected in the company's registration review, the review is intended to to ensure true and reliable registration of Review of the company registration process is an important pArt of national review of the company's registration to take a different attitude these different attitudes and practices, reflecting the company's registration system of government philosophy, but also reflects the core function of company registration system, even shows a relationship between the national government and the market is currently national review of the company registration, there are three main different approaches: substantive examination system, in the form of censorship, censorship compromise so-called real Review refers to the business registration, the registration authority not only to review the application documents compliance with legal requirements, not only to review the application documents in the form, but also to review the registration of the authenticity of the truth of the matters to the registration, legal to carry out a substantial review, and also on the registration results. so practice, any registered items, they have a real, reliable effect. Germany, France, Italy and other companies registered to take such examination approach so-called form of review refers to the registration authority for the applicant to submit the relevant documents, certificates, etc., examine only the legality of its form, but it is true of the items recorded, the registration authority does not make substantial investigation and verification that will not have the review responsibility. Japan, Britain, the United States and other countries have adopted such a review of methods so-called trade-off review of the matter is the business registration, the registration authority with substantive review powers, but there is no need for substantive examination of the obligations registration can not be presumed to have been registered as a matter of real the basis of the evidence of how well, still determined by the court's decision. [10] (P. 161 review can also be expressed as a compromise, applying for registration only in matters of doubt or dispute the parties and the third person only when begin a substantive review in accordance with terms of reference.

No doubt, choose a different review of the way, on behalf of the government will play different roles, which reflects different administrative philosophy, substantive examination system represents the "omnipotent government" concept, in the form of censorship reflects the "laissez-faire government" philosophy, system compromise is embodied in a review of "limited government" philosophy of thinking, of course, not all of the limited government review of the system are a compromise, not all of the laissez-faire system of government have taken the form of review, but the government's administrative philosophy do decide to register in the company function or role in government.

While Germany is a market economy country, but Germany is a very unique practice of market economy, a "non-intervention neither country completely free economy, but also decentralized socialist economy, but between the two between the 'third way economic humanism' ". [11] (P.125). This in-between the traditional free market economy and a highly centralized" planned economy "between the" middle model "of market economy , precisely because of this administrative concept, company registration area, Germany to take the principle of substantive examination in Germany, "the courts are not 'blind' to register all the declarations are, but a review of the rights and obligations. This Review involves not only the formal requirements, such as their own jurisdiction, the applicant's reasons, especially the applicant's identity, and often involve substantial correctness. "[12] (P.77 German Law that the company registration authority to apply an important part of the review including the applicant's legal capacity, the effectiveness of the application form to apply for legal effect of the material and ability to apply for registration matters. [13] (P. 229 Germany, although the principles of the substantive review, but the government's use of executive power which does not exceed market economy should be the boundaries of which will register the company by the Industrial and Commercial Bank will manage the pilot is the most prominent expression. (Note: the German Federal Ministry of Justice in October 1997 presented a study entitled "Industrial and Commercial Bank will set up and management companies register the pilot and co-register Law "draft Federal Cabinet on March 18, 1998 decision, the terms for the states to develop an open, easy to register them in the company's business lines will be transferred to the registration deadline for experiments. (See [Germany] Rolf • Stober: <<company will register with the line>> Fan Jian, Shao Jiandong translation, German Commercial Law, Law Press, first edition, 1999, 44, 45 pages.

Japan, Britain, the United States and other countries has always been a free market philosophy, so in the company's registration review form used in Japan, whether it is the prevailing doctrine or jurisprudence agree that the company registration officials to examine the applicant's application for commercial registration, just right for the applicant to submit written materials in the form of review, no right to field investigations of these matters recorded in the written materials the authenticity and legality. even if there is doubt, the company registration authority must register in the event of dispute by the parties through litigation settlement. [14] (P. 123 UK company registration system requires the registration authority is only responsible form of review, "a limited liability company in the UK lower the threshold for investors, business scope, investment and other less restrictive, reporting system for the use of capital investment, and the company's establishment, modification and cancellation procedures are simple, the company set up to implement all of the special administrative examination and approval after the approval of the Registrar of Companies is responsible only for the form of review, responsibility for the authenticity of the material by the shareholders, directors, lawyers, accountants so responsible. "[15] In the United States, according to the provisions of company law in most states, the establishment of the company, only need to establish who submit to the Secretary of State set up by the articles of association signed by the company set up to obtain the Secretary of State's acceptance, the company that was set up. Secretary of State need not conduct a substantive review of the establishment of the company, just from the formal review of the constitution submitted by companies to set up content is in accordance with the requirements of the correct complete its procedures for setting up a company is quite simple, fill in the contents of the is not complicated. [16] Anglo-American countries in the laissez-faire economic policies, the main market is presumed to have the independent ability to judge, its free market principles and requirements of market players should be predictable and to determine risk and bear the corresponding legal consequence, this concept of domination, the company registration form of censorship, of course it will take to review the system.

Third, our company registered in the "good government" practices and problems

(Good government area of ​​registration of a company default and ideoLogical roots

Company Registration of the most central issue is how to ensure true and reliable registration information, registration information may be untrue for people already well aware of the hazards and hated, so the company has registered the authenticity of the expectations can not be shaken, for the civil power can not resolve spontaneously problem, one can only pin their hopes on the government, but this time, two thousand years of feudal autocracy derived "paternalism" complex to determine the Government on this issue must be the people call the shots with the requirements of the people and government administrative philosophy the same strain, in the company's registration system performance review system for the examination as to substance, so our review of the history of business registration, has always been the history of substantive examination system. This substantive examination, the masses are consistent with the requirements of good government, but also consistent with the traditional understanding of society's image of good government through the government's administrative power to the company's application for registration of authenticity, legitimacy and effectiveness of a comprehensive review to ensure true and reliable registration matters, this is a really good government, so , go back in the field of company registration, China has implemented a substantive examination.

In the West, paternalism (paternalism, from the Latin pater, can be translated into paternalism. (Note: paternalism (Paternalism also known as paternalism (see SUN Xiao-xia, GUO town: "America's legal father and the theory practice ", <<legal science>> 2005 No. 6, SUN Xiao-xia, GUO town:" The law of application of paternalism in China, "<<China Social Sciences>> Article 2006 (1); Zhang Xian: <<twenty century ideas of Western Philosophy>>, Law Press, 1996, see also Shu Ying country: "The Philosophy of right thinking" <<Political Forum>> 1995 No. 3, Sun Li: "Virtue and the rule of law and legitimacy of the analysis - China and East Asian law and culture and tradition of the reevaluation, "<<China Social Sciences>> No. 2002 6. According to Dworkin on paternalism of the earliest definitions of paternalism is" contrary to others' personal or national intervention on the behavior of others will, at the same time, because this intervention is to the well-being or protect him from harm and to permit into. "(Note: Gerald Dworkin. Paternalism, http://plato. stanford. edu / entries / paternalism. html.) Another similar definition of paternalism: "paternalism is to promote personal interests, and personal autonomy (individual autonomy behavioral intervention, such interventions include individual decision to restrict or attempt to influence the way they implement the decision. "(Note: Gerald Dworkin. The Theory and Practice of Autonomy, Cambridge University Press, 1988, P. 123. Thus, the main core of paternalism There are two aspects to the interests of others, the second is for others to decide, where the others mainly refers to public or personal. theorists talking about the paternalism of the time, sometimes referred to as state paternalism, sometimes referred to as Government father doctrine, sometimes referred to as legal paternalism, in fact, only under the requirements of different contexts, different subjects only, the Meaning of the core has not changed.

Western countries, mostly in the area of ​​company registration form of review of the implementation of this father with the implementation of and opposed to the liberal doctrine on the West countries oppose the implementation of liberal paternalism, mainly due to:

One out of distrust of the Government. Put another way of expression is that the Government arrange everything in time for the people, how can the government prove that the arrangement will certainly better than the arrangement of individual autonomy, if individual rationality is limited, then, by the individuals of the reason the government is completely it? rational government will not be higher than the individual's rational proof, but the government is not entirely rational but can be proven, this liberalism and public choice theory have been made the answer. representative of the classical liberalism of Adam Smith long ago pointed out: the monarch to fulfill their "oversight of private industry, to guide private industry, to make the most of such obligations for the interests of society, easily caught the error, to the line of the properly, fear is not human wisdom or knowledge could do ". [17] (P. 252. Moreover," For a person's well-being, I am concerned about most of the people, except in some very strong personal ties matter, any other person cherished for his well-being concerns and the concerns of his own cherished by comparison, are modest and superficial. community he cherished as a personal concern (except for his behavior to others is always part of the outer , and is entirely indirect. "[18].

Second, out of personal freedom or autonomy to maintain or advocate. That the individual has not yet free of the noble, even out of love, not a restriction on freedom of legitimacy. "This is both personal as opposed to 'interest Wei Tan 'like a' father 'of the government and reflect the will of its laws, whether out of citizens' love' and restrict their freedom or autonomy? "[19] on this issue, Kant's warning more resounding : "If a government established on the principle that people's kindness, like a father to his children, in other words, if it is a paternalistic style of government, such a government is to be the worst out of people think the government . "[20]

China and Western countries, Western countries have a liberal tradition, China is a country with a long history of man's country, in China two thousand years of patriarchal authoritarian societies, the traditional concept of state to control deep-rooted opposition. This world, people I do not know "the difference between the state and the world," "this world, Wang soil, the rate of soil Sea, WANG Chen," contributed to the national policy of conceited pride, by the impact of the long feudal history, a lot of feudal thinking in China deep-rooted, the planning system's way of life and life servant attitude of the Government a strong tradition of "paternalism" complex from the traditional "parent" to the country's planned economy, taking on everything, "an officer must serve the people call the shots." so deeply rooted in our values, on the contrary, Western countries generally accepted the "executive power by the incumbent are not the masters of the people, but only the people of the officials." [21] (P.117 such a concept can not be appreciated and accepted, People need guidance and control by the government, the people rely on government management is a habit, deep down, people have become accustomed to as a people, desire and accept the Government's care and placement. As a result, "unlimited expansion of government functions, government increasingly have been entirely borne by the community or market themselves to perform or complete the transaction, the authority of government deep into the purely private sphere of personal life. "[22] (P.91) the lack of traditional Chinese political philosophy the concept of government services, some scholars have pointed out that even in the contemporary, "Chinese citizen living habits is still trust and rely on government." [20] Because of this, fatherly tendencies and ways of thinking in the operation of the Chinese government executive power the performance was particularly outstanding, "benevolent loving" is a "glorious" tradition, "superstition legislators wisdom, superstition, government intelligence, business intelligence and market intelligence suspect in legislation under the concept of paternalism, the assumption that legislators wisdom higher than the merchant wisdom, wisdom is higher than the market wisdom of the government under the premise of China's traditional economic and commercial legislation and the legislation is to strengthen the legislative intervention and the stigma of administrative intervention. "[23] Therefore, in the area of ​​registration of the company, the image of good government should is to rely on substantive review by the executive power and thus ensure the registration of real and reliable.

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(Two companies registered in China's "good government" practices

For these reasons, there is a long period of time, our company registered in the field of implementation of the principle of substantive examination, the registration authority not only to review the registration application documents are complete, but also to examine whether the registration of real, legitimate and effective. Therefore, the Administrative Licensing Law in 2004 established the principle of the company registration form of review prior to the registration area in the company to comply with China's "good government" philosophy is "all government" and "unlimited government." In the company registration process, by the registration authority to use administrative power to review the registration materials the authenticity, legality and other issues. "But it ignores the phenomenon out of the market mechanism for the punishment of false role to judge the government instead of market players, so if the registration authority does not fulfill the obligation to register, not only to deceive the public with greater and misleading, but also easily lead to public the authenticity of the market players expect the fall, the harm even worse. "[24] state in the substantive examination, it matters that the Government carry out substantive examination of the registration is justified, the government's responsibility, but also for the obligations of its results the government replaced the market to determine the main independent and self-decision, it is essential for the formation of the government, a strong dependence on company registration, the government's review of alternative public visits, the government replaced the public to judge to judge, public not only lost the ability to judge, lost the ability to predict risk, but also to determine the authenticity of the loss of desire and ability to withstand risks, people become the government under the wings of the parasite. Not only that, the real long-term review of the practice shows that although the registration authorities to take substantive examination system, however, issues of authenticity and registration is not as satisfactory as desired, thus greatly reducing the credibility of the government, because people want the government registration of too many false and become frustrated. Therefore, the "omnipotent government" as the guiding principle of substantive examination of the company's registration in the past, long-term practice and did not really achieve "good government" and good wishes.

(C company registered in the "good government" of the concept of change and the problems

Implementation of the Administrative Licensing Law in 2004 first defined the business registration to a "review form" principle-based review, application materials provided the authenticity and legality by the applicant is responsible for the registration authority under the statutory conditions and procedures need to apply to verify the substance of the material, it shall appoint two more staff members to verify introduced in 2004 when <<business registration procedures require>> and introduced in 2006 <<Company Registration>> also made the same requirements. <<Company Registration>> 52, 54 provides that: "the application documents and materials are complete, comply with the statutory form, or the applicant in accordance with the requirements of the company registration authority to submit all the supplementary application documents and materials shall be decided to accept "." application documents and materials are complete and meet the statutory form, but the company registration authority that the application documents and materials required verification, shall decide to accept, while writing to the applicant to verify the matter, reason and time. "at the same time states: "the applicant to the company registration organ shall accept the application, it shall be allowed to register on the spot to make a decision." It can be presumed, to apply for company registration, the registration authorities usually take the form of review, the registration authority "that" need to verify when it is verified, which is a form of review in the main, to substantive review, supplemented by the review system.

Substantive review by the company registration system changed to the form of review-based review system, not just the work that the registration authority and attitude change, more importantly, reflect the concept of the executive changes, reflecting the national the field of executive power in the company register in the weakening or even the use of exit, it should be said that this is a historical progress, in line with the market economy is an administrative concept, which permeate out of the "limited government" executive thinking, for this change, theory of law can be more dense ink to celebrate.

However, the department of law, but focus on more practical issues: company registration form of review of such a system will not only make the registration office to get rid of the onerous task of the review, the executive power in the area of ​​registration of the company to maintain a certain restraint, but also to avoid the review lead to lax information that is untrue and should be liable for the embarrassment, but the form of review of state, how to ensure the authenticity of company registration, the Administrative Licensing Law and the Company Registration Regulations clearly stipulate that the applicant for the application responsible for the authenticity of the material, but How the applicant responsible for? company registration information is untrue situation in our country have become commonplace, this issue, the public have become numb and habits, relevant authorities are also collective aphasia. Thus, in the areas of company registration review, what is a good government? All of the substantive examination is arranged, or limited as a form of censorship? Form for review as a result of registration information is untrue, the Government should be how to deal with?

Fourth, the area of ​​registration of the company to establish a good image of the government

If we present the company's registration, the former to make a simple review, we will find our company in the area of ​​registration, false registration or inaccurate because of the substantive examination registration is not reduced, there is no form of review because of the completely out of control. For words, the registration authority to use administrative powers to the registration documents for substantive examination and excessive use of administrative power is not simply the form of review, the results of no difference, then, the company's registration as a public service areas, the government should How can we ensure the registration information is true and reliable?

I believe that the registration information is true and reliable to rely on the one hand, register the applicant's legal awareness and moral self-discipline on the other hand, is more critical is whether the legal system to build up a Dazao not fraud, not fraud platform . Niebuhr in <<moral and immoral society>> that caused social and moral "anomie" The main reason is not a personal moral character, but the legitimacy of the system itself is a problem, caused members of the community suspicion and even negative, because "the system provides a behavior for the individual incentive system, and he also provides individuals with information related to the environment and the cognitive model, individuals in accordance with institutional guidelines, and define the scope of choice." [25] (P. 347 Thus, in the area of ​​registration of the company, a good government should only use executive power to maintain a certain restraint, they should exit the administrative authority to make reasonable arrangements for the system to complement the power of the Government out of the social disorder caused by state to make reasonable arrangements for the system, both the government's responsibility, but also a necessary requirement for good government in the areas of our company registration, registration authority to reduce the unnecessary use of executive power, the implementation form of censorship, however, related supporting systems should make reasonable arrangements to ensure that the only way out of the executive power, the registration information is still true and reliable of these institutional arrangements related to include:

First, the social credit system. Because the traditional culture of the spirit of rational culture and the lack of rule of law, Weber in "China's religious>> a book that Chinese businessmen do not trust each other a lack of honesty. Is essentially a" neither ethical consciousness, lack of professional dignity, and very desperate heart of 'pariah capitalism'. " [23](P.6韦伯的这番评价也许有失偏颇,但是,有一点是可以肯定的,那就是,信用的缺乏会制约经济的发展,甚至会产生严重的后果.关于这一点,经济学家肯尼思·阿罗( KennethArrow甚至提出:"人们似乎有理由认为,经济落后很大一部分程度是由缺乏互相信任造成的."[27](P. 199这一论断虽然有些骇人听闻,但考察各国经济发展的历史,似乎不无道理.

西方发达国家大多实行形式审查主义,但是,公司登记信息少有不真实情况,主要原因之一是西方发达国家具有健全的社会信用制度.英国采用形式审查,"其前提是健全的个人信用制度,投资者一般不会为了虚报资金而冒失去信用的风险".[15]在西方国家,如果一旦有失信行为就会产生失信记录,社会信用制度中的失信惩罚机制就会从各个方面以各种形式作出反应,使失信行为人为此付出惨重的代价,因此,在西方国家即便是行形式审查制度,公司登记信息很少会出现虚假或不实的情况.我国公司登记已经以形式审查为主,登记事项的真实保证应该主要来自于登记申请人内在的自我约束和外在的制度压力,完善的社会信用制度对登记信息真实性起到非常重要的保证作用.

第二,设立商业欺诈罪.在国外,有很多国家对在商事登记中虚假表示的行为以欺诈罪论处,如美国<<统一有限责任公司法(1996>>第209条规定了对已注册申报记录中虚假陈述的责任:"如果依照本法授权或要求注册申报的记录中包含一项虚假陈述,则由于信赖该项虚假陈述而遭受损失之人,有权从签署该项记录或指使他人代表其进行签署且于该项记录签署之时即已知其中陈述为虚假之人处获得赔偿."[28](P.187-188<<特拉华州普通公司法>>第 103条关于原始公司章程及其他文件的签署、确认、注册申报、记录及生效日期的规定:"一个或多个签名,构成签名者的肯定或确认,该文件为该签名者的行为或契约或为该公司的行为或契约,视情形而定,及该文件中陈述的事实为真实的,且该肯定或确认受伪证罪的约束."[28]

我国香港商业登记条例第15条规定,根据本条例的条文向局长作出任何陈述或提供任何资料,而该等陈述或资料,不论属口头或书面,是在要项上属于虚假或因遗漏要项而属于虚假,且是其本人明知或有理由相信是属于虚假的,即属犯罪,可处第2级罚款及监禁1年.我国台湾地区"商业登记法"中有不少责任条款(第31-36条:(1申请登记事项有虚伪情事者,其商业负责人处新台币6千元以上3万元以下罚金.(2未经登记即行开业者,其行为人各处新台币1万元以上3万元以下罚金,并由主管机关命令停业.经主管机关依前项规定处分后仍拒不停业者,得按月连续处罚.(3经营登记范围外之业务,其商业负责人处新台币1万元以上3万元以下罚金,并由主管机关命令停止其经营登记范围外之业务.经主管机关依前项规定处分后,仍不停止经营登记范围外之业务者,得按月连续处罚.(4有应登记事项而不登记者,其商业负责人处新台币2 000元以上1万元以下罚金等等.澳门商业登记法典规定:(1使虚假行为或法律上不存在之行为被登记者,除可能负刑事责任外,亦须对造成之损害负责.(2为进行登记或缮立所需文件而在登记局内外作出或确认虚假或不准确之声明者,亦须负民事及刑事责任.

我国法律对虚假登记处罚较轻,以行政处罚为主,在公司登记领域,只有虚报注册资本罪,虚假出资、抽逃出资罪.从社会角度,我国商事登记信息虚假情况较多与对这种行为惩罚不力,特别是缺乏刑罚制裁是分不开的,将某种行为规定为犯罪行为,不但可以更有力地惩戒这种行为,同时还具有较强的警示意义.从人性角度,人是富有理性并精于计算的,行为人在行为之前会对其行为后果进行理性的评估,在公司登记领域,如果法律对虚假登记者处罚过轻或处罚不严,就会使登记申请人产生通过虚假登记以获得法外收益的动机和动力.以商业欺诈罪处罚公司登记中的虚假登记者,它可以改变行为人对自己行为利益的计算,它增加了成为守法人的额外的动机,即避免责难和惩罚.因此,在我国公司登记领域虚假登记比较普遍的情况下,借鉴国外在此方面较为成功的经验,设立商业欺诈罪是非常必要的.

公司登记领域是一个关乎市场经济能否有秩序健康发展的重要领域,政府在其中应当如何发挥作用是转型国家在建立现代市场经济过程中必须面对的问题.好政府哲学并不是停留在理论上,而应该落实到实践中.在公司登记领域,什么样的政府是好政府,借用著名新自由主义者、专栏作家与政治家沃尔特·李普曼的话:"最好的政府是管制最少的政府,这完全正确,但同样正确的是:最好的政府也是提供服务最多的政府."[5]法律是一种公共产品,在公司登记领域,健全的制度安排也是政府提供的公共服务,提供的公共服务能够满足市场经济需求的政府就是好政府.





Notes:
[1][美]约瑟夫·E·施蒂格利兹:<<政府经济学>>,曾强、何志雄译,春秋出版社1988年版.

[2][英]F·A·哈耶克:<<通往奴役之路>>,王明毅等译,中国社会科学出版社1997年版.

[3][法]萨伊:<<政治经济学概论>>,陈福生,陈振骅译,商务印书馆1963年版.

[4][英]约翰·穆勒:<<政治经济学原理(下卷>>,赵荣潜等译,商务印书馆1991年版.

[5]秦晖:"权力、责任与宪政:关于政府'大小'问题的理论与历史考察",载梁治平<<国家、市场、社会:当代中国的法律与发展>>中国政法大学出版社2006年版.

[6][美]塞缪尔·亨廷顿:"变动社会的政治秩序",张岱云译,上海译文出版社1989年版.

[7]杨培雷:<<当代西方经济学流派>>,上海财经大学出版社2003年版.

[8]李庆钧:"'有限政府'的概念分析",载<<学习论坛>>2007年第12期.

[9]［英］哈耶克:<<自由秩序原理(上>>,邓正来译,三联书店1997年版.

[10]赵中孚:<<商法总论>>,中国人民大学出版社1999年版.

[11]黄范章:<<外国市场经济的理论分析与实践>>,商务印书馆1998年版.

[12][德]C·W·卡纳里斯:<<德国商法>>,杨继译,法律出版社2006年版.

[13]范健:<<德国商法:传统框架与新规则>>,法律出版社2003年版.

[14]吴建斌:<<现代日本商法研究>>,人民出版社2003年版.

[15]肖建民:"英国公司登记注册制度及其启示",载<<中国工商管理研究>>2002年第2期.

[16]施天涛:"公司法的自由主义及其法律政策—兼论我国<<公司法>>的修改",载<<环球法律评论>>2005年第1期.

[17][英]亚当·斯密:<<国民财富的性质和原因的研究>>,郭大力,王亚南译,商务印书馆1983年版.

[18][英]密尔:<<论自由>>,许宝骙译,商务印书馆1996年版.

[19]孙笑侠、郭春镇:"法律父爱主义在中国的适用",载<<中国社会科学>>2006年第1期.

[20]杨宇立:<<政府太累>>,当代中国出版社2004年版.

[21][法]卢梭:<<社会契约论>>,何兆武译,商务印书馆2003年版.

[22]王小卫:<<宪政经济学>>,立信会计出版社2006年版.

[23]刘俊海:<<新公司法的制度创新:立法争点与解释难点>>,法律出版社2006年版.

[24]冯果、柴瑞娟:"兼论我国的公司登记统一立法",载<<甘肃社会科学>>2005年第4期.

[25]何增科:"新制度主义:从经学到政治学",载刘军宁等编<<市场经济与公共秩序>>,三联书店1996年版.

[26]季卫东:<<法治秩序的建构>>,中国政法大学出版社1999年版.

[27][英]罗伯特·D·帕特南:<<使民主运转起来>>,王列、赖海榕译,江西人民出版社2001年版.

[28]虞政平:<<美国公司法规精选>>,商务印书馆2004年版.

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