Revocation of the registration system on the companies to set up (on) - the "Company Law" Section 199 of the application to start

Keywords: Company Registration / Company Registration / revoke the company registration / business license revoked

Summary: company registration revoked, is when the company set up an administrative remedy substantial defects of the system, by its nature should be pArt of the administrative authority for the revocation of the behavior of China's current <<Law>> Section 199 and "Company Registration Regulations>> Article 68, section 69 to revoke the company registration and revoke the business license requirement in parallel on the selected bit sequence, but <<Law>> Article 199 of the listed violations by the company's original investor or sponsor, the applicant is not the company is, should not apply to revoke the business license due to a retroactive revocation of registration and the company denied the effective establishment of the legal effect will induce a chain reaction of debt crisis, In order to avoid unnecessary damage and social unrest trading, the practice should be used with caution in company registration revoked.



One of the problem

In the process of establishing, the absence of the real conditions of the Law, or serious violation of established legal procedures, but has the company registration authority, such a case the existence of state companies, academia and industry is generally referred to as the company set up defects, or Company registration defects [1] According to the company originally set up different fLaws, can be divided into companies to set up substantive and procedural defects are two basic fLaws in the case in which the company set up a registration system is for the companies to set up withdrawal substantive defect in the arrangement of a system of administrative remedies [2]

Company registration revocation system that the company set up a registration process, due to the establishment of the applicant in violation of our <<Law>> and other laws on company registration provisions in force, review by the original company registration organ has to be removed leaving completion of company registration to invalidate the registration of a company set up relief system defects. revoke China's current system of company registration from the 1980s to revoke the registration system for industrial and commercial enterprises, adopted in December .1993 "Company Law>> 206 the introduction of universal significance of the "revocation of the company registration" system. then the State Council issued in June 1994, the <<People's Republic of Company Registration Regulations "(hereinafter referred to as <<Company Registration>> further" remove the company registration " The exclusion of the refinement, but with the "Company Law>> (1993 the provisions of Article 206 is different is that <<Company Registration>> Article 58, Article 59, provided for in the same situation except "revocation of the company registration", but also added a "business license revoked," the administrative penalties. The law of a different bit sequence differences in institutional arrangements, has some scholars and practitioners who are concerned [3]

Amended in 2005 <<Law>> Section 199 continues the <<Company Registration>> (1994 the "revocation of the company registration" and "revoke the business license" side by side and choose the applicable provisions of the State Council in December .2005 issuance of new <<Company Registration>> In article 68 and article 69, the "false registered capital" and "submitted false materials or by other fraudulent means to conceal important facts" to obtain a company registration, respectively, made and <<Law>> Article 199 of the corresponding provision .2005 <<Law>> Section 199 in the establishment, registration flaws in the introduction of "revoke the business license", so <<Law>> and << Company Registration>> provisions are consistent, different bit order to solve the conflict between normative documents issue, but on how to apply <<Law>> Section 199 and <<Company Registration>> Article 68, the provisions of Article 69, academics and industry, there are still big differences. The problem can be summarized as: Can the company already set up a registration revoked? such as in accordance with current <<Law "Section 199 and <<Company Registration Bill>> 68, the provisions of Article 69, set up companies registered there been substantial defects, the ability to selectively apply to the establishment of registration or revocation of business license revoked? revoke the registration or revoke the business license to establish the specific terms and conditions apply how to identify? This article tries to express their views on these issues.

Second, the company determined to establish the significance of registration revoked

(A qualitative company registration

Company registration revoked registration revoked part of the company's scope of our current <<Law>> Section 199 and <<Company Registration>> Article 68, Article 69 registration of the revocation of the company, its scope should include more extensive significance of company registration, change of registration and cancellation of registration. revocation of company registration and company registration is corresponding to the identification of the nature of their behavior, will depend on the company set up to determine the nature of the registration act.

Nature of the act on the company's registration, academics has always been that the administrative licensing and administration confirmed that the different viewpoints [4] that the basic logic of the administrative licensing is: the company registration authority for the act of registration of companies, is set up according to the company's application, give the company established to carry out independent business and an independent legal entity administrative actions, the company registration authority by giving the applicants with legal personality, and issued a business license, meet the administrative licensing the basic characteristics and essential elements [5], some scholars from the Chief registration perspective, the decomposition of the administrative register as "confirmation for registration, permission-based registration and record-type registration" in several forms, and the corporate (company registration should be classified as permission-based registration [6] who confirmed that the administration scholars believe that: the company registration authority according to the company set up by the applicant or the registration, certification, notice and other actions intended to achieve the company has been set up in the elements and have legal personality and can be independent, legitimate business to carry out the legal status of a particular company and business qualifications of identification and recognition, is the registration authority of the company's business qualification and general business capacity shall be determined, recognized and declared a specific administrative act. [7] Of course, some scholars believe, from the civil licensing perspective to understand the company set up registration, more consistent with the basic purpose of company registration and basic functions [8]

China's current legislation on the point of view, 2003 <<Administrative Licensing Law>> with the 2005 revised <<Law>> registered on the company can be described as very different qualitative behaviors, such as the current <<Licensing Law>> Rule 12 1 paragraph (five made it clear to "the establishment of enterprises or other organizations, etc., need to determine the qualification of matters" listed as the administrative licensing matters can be set to the range [9], but our <<Law>> 6 of the identified companies to set up "doctrine as the basic principle of guidelines to permit exceptions to the doctrine of" the spirit of the legislation point of view, in fact, the 1993 <<Law>> established companies to set up "to permit the main principles of Marxism to guidelines to supplement the case doctrine, "the amendment, which is embodied in the field of executive power in the proper positioning of business and limited contraction, but from another point of contrast to create the main body of civil law companies will respect and maintain the freedom, corresponding to registration in the company to pursue the establishment of the "Guidelines for the basic principles of Marxism, Leninism as exceptions to permit" means a company registered simply deny the nature of administrative licensing.

I believe that the nature of company registration, should the company set up to sense the role with the company registration authority corresponding to the perspective of this analysis from the original business and ecological significance of freedom as to examine this level of business, free business people This for the most basic rights, reflected in the commercial field, the civil subject's freedom to dispose of their property into the commercial sphere, in order to for-profit business activities, is the basic freedom and the most basic rights [10] initiated the establishment of the company business investor should exercise the right to freedom of association with the commercial rights of specific performance, the establishment and effective establishment of the company, the investor originally fit between the product, such as from business freedom, freedom of contract into consideration, as long as the investor's sponsor or the establishment of the company who funded the establishment of the articles of association, the main industry, business, management and other important business issues agreed that based on their common goal of setting up a company initiated by the formation agreement, the company would in fact be set up at first , declared the formal establishment of the external, and even more publicity to the transaction the third person to solicit their goodwill and business opportunities and expand the market, often when the company officially opened the ceremony by some (such as the opening ceremonies and the like in order to clear its establishment, opening and exhibition industry. can be said that these companies like the opening ceremonies of the ceremony is similar to the initial registration of the company's announcement now, publicity, public notice of its legal significance in addition to the formal establishment and opening of the company, but also includes the founders or promoters to publicity business information, declaration of business strength and attract the customer's business functions more as ancient and medieval, business still in its early stages and poorly developed, only a very small number of activities engaged in for-profit business, handicraft class thing, not the state and society necessary for its business activities through registration and other forms of supervision, management and control [11]. It was only because of the guild, the city self-government in the presence of extrinsic forces [12], such as companies and other commercial business organizations only need to perform the necessary registration procedures. to modern times, because the state and the competing interests of the business areas of intervention to strengthen the Economic, commercial registration rights also reverted to the special state organs, but even so, the company decided to set up, launch and effective establishment of dynamic factors, is still the company's investors, not the company's investor initiated consensual, joint ventures, investment and a series of acts, no matter how the laissez-faire state organs, tolerance and encouragement, there will be no companies to set up the move, but there will be no establishment of the company facts. the company's original investors and promoters, its so for company registration, first, because state law and company registration and management control by the state the right, the company not to register can not obtain state law recognition and effective protection, and second, because the recent years, the company set up in the popular and well-developed business cases, the company sponsors a public platform by means of state organs, through the company's registration can be more effective publicity business information, to expand its business impact the third is through the company's registration, the company set up by the company during the formation of the original investors and promoters of the partnership or joint venture agreement to get greater authority, more credibility, more stability of the public authority's recognition and endorsement, the company set up by the company before the various systems arranged by the parties, rights and interests of the pattern can be effectively stabilized and maintained if the company's original investors and promoters say somewhat out of frustration, then, reflects the latter two registration of the company's original investors and promoters of the true intentions for them, the company registered its real significance lies in the recognition agreement established the existence of their business information and publicity, in order to expand business, to solicit business. only in respect of the company The original investors and promoters of the legal sense, by the country-specific organs for registration of the company, the company produced its initial period of the opening ceremony held some sort of ceremony, and there is nothing essentially different nature is nothing more than in the company after the formation of the parties desired, add an external confirmation, declaration of the ceremony. [13] as the legal nature of the act to qualitative, is a way for a civil action more effective, more determined to type legal acts.

Re-register itself on the substance of the company, acts for the elements and the force of law and since the right of Commercial Registration to the country after the transfer by the private sector, the commercial registration of companies, more certainty, more credible, more coercive power, but the state the exercise of registration of commercial registration of the company the right to register itself does not change the legal nature and institutional functions. First, the company registration act start point of view, the implementation of the company registration act, from the application of the parties, is due to application of the administrative behavior, with a significant passive. Second, the contents of the company registration, company registration authority is only the company's original investors and promoters have formed a desired company name, members, constitution, capital structure, investment ratio, business issues, organization, company representatives and other important matters and business information to confirm it, the company registration authority shall also not be desirable for the company party to any matters other than to add, is also not free to change the company's original investors and promoters from the desired form by the various business matters, the registration authority only applied to the applicant from exercising their issues, recognized the right, without licensing issues discretion, is a typical custodial bundle of administrative actions. Third, the behavior of elements of the company registration point of view, the registration authority to do the applicant applied for registration of the company matters and whether the application documents submitted by the company's compliance with the law a necessary condition for the creation of the review, although the company registration review, the remaining countries in the form of substantive examination and review of two different systems paradigm, but the choice of the paradigm that a review of its review of the object are for company registration application documents submitted by the applicant, only in the review of the way, pay more attention to the substantive examination of the authenticity of the content of the registration application documents, and more concerned about the review form registration document in the form of completeness only, but in the registration review process, the company registration authority are issues around the application and confirmation of the facts contained in the application documents or identification, there is their qualifications, rights, granted specifically to the problem. can be seen, review of core company registration, company registration matters only for the identification and recognition, rather than the other. Fourth, the company registration act on a specific form, the company registration act is through acceptance, examination, registration, registration, certification, announced a series of specific actions to implement and complete, including acceptance, examination, registration, announcements are is a matter for the company to apply for their identification and recognition by the move, the work done by the company registration authority to apply only to convert the text to become the official company registration documents only, the conversion between this text is reflected in the company registration authority registration of the applicant company and the company's original investors, sponsors desired recognition and respect, while controversial is the company registration authority issuing behavior, because in the documents issued business license, certificates and other legal right to do with carrying , ability, behavior, and other qualifications of the main elements of the declaration, elements of these qualifications because the company registration authority issued licenses by the record, of course be seen as granted by the company registration authority, which also hold the administrative license commentators repeatedly stressed of. As everyone knows, the certification presented here is just part of their appearance, because the licensing act and confirm the behavior of the subject point of view, the basic premise licensing practices is common practice to limit or prohibit, permit to conduct a means a restricted or prohibited by the restoration of rights, and to confirm the basic premise of administrative law in general act to encourage or promote, the administrative act to confirm that the subject of a condition or behavior with a determined and declared that both values, the system function is different. it's the act of registration, its basic premise of the policy is the subject of civil law countries and setting up a company and thereby create wealth to encourage, promote, support and protection, rather than the reverse. Company registration applicant based on national policies and laws, through the establishment of their own behavior, considered to have reached a basic condition for the creation of the company's application and proposed the establishment of the company registration authority after examination if it considers eligible, they will be registered and issued a business license and other documents, business licenses and other documents, it is precisely its application for registration after examination of the text consistent with the law as a basic condition to judge and to be given to documents formally recognized it. Fifth, the legal effect of registration of the company point of view from outside legislation and company registration practice experience, with France and Germany as the representative of civil law countries, starting from the registration of the establishment of elements of Marxism, the company set up for the company effective the registration requirements established legal procedures and symbolic conditions, such as <<German Stock France>> 38, 41 and <<German limited liability company>> Article 11, confirmed the company's registration is not established without the principle of [14] France <<Business Corporation Act>> Section 5 Article 1 states that "commercial companies since its <<business and company registration book>> registered on the date that enjoy legal personality." [15] corresponding to the Anglo-American and other countries, the company registered effectiveness of the holders of registered against the doctrine, the company registration act is indeed a right sense of the specific administrative act, the publicity has been set up aimed at a variety of business information companies, is only effective against the knowledge of a third party. [16] Japanese companies registration of the original mining company registration against the doctrine, [17] as the original <<Japanese Commercial Code>> Article 12: The company and other "matters to be registered, non-in registration and after the announcement, not to the bona fide third person. Although registration and announcement in the third person because I do not know a valid reason, the likewise. "[18] In addition, Article 64 on the establishment of an unlimited company registered and 188 on the establishment of joint-stock companies registered, are permeated with the registration the principle of effectiveness against the doctrine of the Japanese Diet in June .2005 newly adopted <<Japan's Company Law ", is a change in the original registration as a registered establishment against the doctrine of Marxism, such as the new" Japanese Companies>> Article 49, Section 579 have established a joint-stock companies and stakeholders in the company by "set up after the establishment of registration," the principle of effectiveness [19], such as the principle of antagonism from the registration point of view, the company registration simply means that the effect occurs only publicity, and its announcement to confirm the effectiveness of is more significant, such as the establishment of doctrine from the registration point of analysis, described by the former, the company was only registered investment companies and sponsors of the original agreement established after the formation of the company, according to the law should be to fulfill the necessary legal procedures that the establishment of a formal registration only is the company established a program to type it, the company registered only set up to reflect the style of the company, but not for other explanations.

To sum up, both from the company's original investors and promoters to establish the company's original intention, or from the company registration act motivation, behavior, content, behavioral factors, behavior, behavior to analyze the effectiveness of the company acts to establish a more consistent registration confirm the characteristics of administrative acts, acts of nature can not be considered an administrative permit.

(B deregistration of the company originally set up

This is the company's registration to confirm the nature of the administrative decision of the company registration application documents submitted by the applicant with the relevant material has relevance, completeness, legality until the authenticity of a direct impact on the company registration authority correctness of behavior choices , to determine the appropriateness and reasonableness of the final, effectiveness of which, on the application documents and materials related to the authenticity of the applicant company registration should be fully responsible for the company registration authority only negative review of obligations in the form [20] In other words, the company registration authority, its decision whether to set up a registration and then for the company registration act, depends on the company registration application documents submitted by the applicant and whether the formal requirements related materials. Because of this, China 2005 <<Company Registration "clearly states the company registration authority shall accept applications for company registration, the basic judgments is determined based on the company registration application documents submitted by the applicant with the relevant material has relevance, completeness, legality, etc. the form of the element. From this, the company registration organ registration decision made or just based on their acceptance, the registration decision to conduct a series of companies registered Ye Hao, is the basic judgments based on laws, administrative regulations the regulations or the articles of association set up a company recorded in the basic conditions for its recognized standard is the company registration documents submitted by the applicant's application and related materials of relevance, completeness, legality, whether in the form and legal and administrative required by law or the Articles of Association the company recorded a consistent set of basic conditions, the company registration act of making and implementing the company registration authority simply means that the fact that this match made the determination or recognition.

To illustrate the above analysis, the company registration documents submitted by the applicant's application and related materials of relevance, completeness, format of up to legitimacy, authenticity, validity of registration of establishment of the company has real meaning. Based on this basic logic, as in the process of company registration, company registration documents submitted by the applicant's application and related materials do not have the legitimacy, authenticity, or not tried because the company registration authority to examine carefully the obligations, but not because of neglect of the review application documents found and related materials in the relevance, completeness, there are significant flaws in terms of form or defects, the company registration act is recognized by the company to establish the facts and laws, administrative regulations or the articles of association under the record of a company set up by the basic conditions not consistent, then the lead already established company there are significant flaws. Company registration revoked for this situation is given the necessary remedies.

Third, the company set up a registration system of value withdrawn

(A) the company registration can be revoked after

Gongsi been set up after the formal establishment of registration, whether the original company registration authority to revoke the decision path line company registration be revoked, legislative and academic, there are still big differences. Examine the cases of extra-territorial legislation, most countries do not currently registered on the original company authorities can track line revoking the registration requirements or institutional arrangements in Germany, <<German stock law, "only the first 41 - Article 53 of the company before the registration of companies to set up defective civil liability, but also in Article 399, Section 400 provides for the establishment registration of false statements, incorrect description of persons responsible for administrative and criminal liability, there is no revocation of the company registration requirements, [21] <<German limited liability company>> Section 9C provides only rejected registration system, Article 82 provides a false statement when the company responsible for the establishment of administrative and criminal responsibility, set the company did not specifically revoke the registration system. [22] In the UK, the Registrar of Companies Act provides that a company has "to close down the company removal of power ", but only in the company does not conduct business or business circumstances, the Registrar of Companies," the company name can be removed from the register, unless the original company that has the opposite reason. "[23] in the United States, < <Standards Act, "Section 2.03 also provides that" the time of filing the Articles of Association the company began to exist, unless otherwise determined by the effective date of a delay, "" Secretary of State will sponsor the Articles of Association is to prove that the record has been set up to meet the company's conclusive evidence of all conditions precedent, unless the cancellation or revocation of the establishment of the state's program or compulsory dissolution. "[24] United States," Delaware Law>> the company registration (mainly for the registration of the Articles of Association, are Registration for a specific effective date of the reporting date, the "declaration of registration that is not accurate when the fact that their signature, seal or confirm improper or wrong, or flawed in other respects, the Secretary of State to accept the declaration prior to the registration The document registration application to register an application or declaration and the document archive, no responsibility of any person. "[25] In Japan, in 2005 the newly adopted" Code of Japan>> Although the article 49, section 579 are established a joint-stock companies and stakeholders in the company by "set up after the establishment of registration," The principle of the establishment of the register, but also provides company registration information only with a publicity company's business, the company announced the establishment (such as article 49) and not against a third person (section 908 as proof of validity, that the company "matters to be registered, non-in registration, not as against bona fide third, even after registration, the third person because the subject does not know the proper registration, and also the same. "" due to intentional or negligent false registration matters person, shall not the matter is not real, bona fide third person. "[26] In South Korea, <<Korean Commercial Code>> Section 192 provides only the court ruled invalid and the establishment of revocation of the establishment should be registered, the registration of such cancellation of registration, nor directly by the company registration authority to revoke the registration requirements of [27] In France, <<Commercial Law>> Article 242-1 provides , "Inc. founder, chairman, director or general manager in the company in <<commercial and company register>> prior to registration or registration procedures for the Department as it fraudulently allowed to apply for, or the establishment of the company Failing to apply for entry clearance at any time, by issuing shares or capital stock certificates, "shall bear criminal responsibility such as fines or imprisonment [28] on the registration authority, such as the May 30, 1984 No. No. 84-406 About <<commercial and company register>> Article 34 of the Act gives the court clerk may register to audit whether the registration has been defective, and the right to order the applicant within one month corrected if found to register When there are factual errors, "I can by the clerk responsible for overseeing the register in accordance with the judge's ruling be revoked." [29] shows that only the French Company Law diameter line by the company registration authority revoked. but the French company registration authority for the court, held by the revocation is responsible for oversight of the register of judges (as opposed to negative the duty of the clerk of the company registration in order to determine the manner, the system should belong to the scope of judicial revocation, and China <<Law> > the nature of administrative revocation of a registration system can not be equated.

The reason why extraterritorial legislation is not easy to set withdrawal diameter line company registration system, in its freedom from the business and transaction security for the starting values ​​[30], adhere to corporate (company to maintain the principle of [31] from the contractual relationship to examine the enterprise (company Once set up and conduct business on its connection point for the formation of a series of contract-based trading network. [32] As a result, the company once established, the company's investors, operators, workers and companies on each other to form a interdependent community of interests, the company's stability and survival of the company investors (shareholders), between investors and companies, investors and the company between the company and the relationship between the interests of workers, maintenance and development of natural with the origin of meaning. In addition, the company is set up, the main business as an independent body to carry out a series of business and trading activities, it is bound with trading partners, with industry competitors, upstream and downstream business partners to establish a variety of transactions relations, the formation of a variety of credit and debt, the company's sustainable existence, to ensure the security of transactions also have no doubt the basis of significance. Because of this, the company's survival and to maintain the interests of both communities to maintain the company, or from the transaction security, social stability point of view to consider, all have real meaning, such as allowing the company to withdraw its registration authority has been made easy to set up registration, the members of the Community not only harm the interests of the company, this transaction will be connected by a particular company's point of disappearance, so that a transaction interrupt the chain, and even a transaction occurred in the field of collective debt crisis. extraterritorial legislation is not This is why the company revoked the registration diameter line system as a formal system of company law provisions of the basic reason.

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From an academic speaking, once set up on the company with legal personality, is an independent body and the main trading business, the company's independent personality to match the previous sponsor, after the establishment of the investor and the company's shareholders, the company operators status, property, meaning, responsibility, independent, separate, independent company as a legal person, its legal personality and life should be legally respected and protected, can not easily be denied, but not the original registration authority to revoke .

Nevertheless, the company as a legal and natural persons the biggest difference in the qualifications and independence of its access to the main character must have the necessary conditions for the law, such as the personality of the company prior to independence, or because the applicant of fraud, or due to a major fault of the registration authority to the lack of success when the registration and legal establishment of the elements needed to carry out the basic conditions of business, it makes both companies have been registered in violation of the law are inconsistent with the fact that the company is set up up a false defects in material and support the fact that company or sick companies. If such defects allow the company to the company were removed from the market or pathological, the result is bound to harm the market order and transaction security from the market order and transaction security point of view, due to the lack of basic conditions for companies to set up and registered by the company or pathological defects The independent legal personality subject to legal or denial is necessary [33]. More importantly, the company funded the original investors and promoters of its articles of association, the main industry and other business matters is desirable to form the basis of established conditions, company registration is only the determination of this agreement and recognition, also said the company's original investors and promoters real agreement is valid company registration prerequisite conditions and false registered capital, submitting false materials and other fraudulent means to conceal important facts and other parties means that the false and illegal, can only indicate unequivocally that the company set up between the parties when the true meaning of that, which formed the original agreement between the investors and promoters already does not exist, the company set up registration is based on the basic conditions have simply lost, which led to the establishment of the original registration of the lack of legitimacy, and thus there exists questioned its effectiveness. It is this, some countries and regions at present is through the judicial relief program, the creation of the company set up invalid or revoked companies to set up the system, [34] to deal with company registration substantive flaws. China is a traditional country-based administration, not <<Law>> company set up to establish the judicial invalidation or revocation system, but to the relief of power to the responsibilities entrusted registration company registration authority, though, from system setup and configuration point of view of state power, the original registration authority to exercise the right to revoke registration of establishment, difficult to ensure the prudent exercise of its powers, it is difficult to prevent the abuse of power, has a very unreasonable, but the original company registration authority to exercise, there is also evidence of the nearest convenient [35]

(B revoke registration of companies to set up the subject of legislation and institutional capabilities

Revocation of registration of companies to set up the legislative thrust is twofold: (1 is to safeguard the authority of the company registration authority and credibility, (2 is protected by deception, fraud and damage the interests of the parties. This is because, due to cheating, fraud resulting from the company false registration, in addition to serious damage to the company registration authority authority and credibility, the damage is more direct, more serious is the trust's registration should be the content of creditors and other stakeholders. As a result, the design of the system's focus should be on trust company registration content of creditors and other interested parties for damages, the company set up a strict person, controller, verification bodies, false registration authority to register the third person for damages. [36]

China <<Law>> Article 199 of the revocation provided for company registration is a prerequisite for application of registration of the applicant's violation of <<Law>> requirements, false registered capital, submitting false materials or by other fraudulent means to conceal important facts get the company registration, these cases are related to the companies to set up substantial elements of truth, and the company registration documents and materials of relevance, completeness and registration procedures for conditions unrelated to the form which indicates the reason for the establishment of company deregistration system, its real purpose is to inhibit the process of establishing the company's fraudulent investment fraud actions and other applications, set up in maintaining the integrity of the company, its basic function is achieved through the establishment of registration fraud due to the negative, by the settled principles of joint and several liability in accordance with conclusion of all the resulting debt relief to the victims trust the contents of company registration, company registration authority to restore the credibility of the registration act, combined with the front of the administrative measures, for revocation of administrative penalties and civil liability arising from company registration, to the implementation of deception, fraud, illegal applicants to disciplinary purposes.

(Three companies to set up the legal consequences of registration revoked

For <<Law "Section 199 is the" company registration revoked, "the legal consequences, scholars view the remaining differences. Some scholars believe that the company decided to withdraw the registration, revocation of business license and declare invalid the statutory establishment of the fact that the company is not exactly the same. [37] Some scholars of the revocation of the company registration act does not give a clear definition, but the company failed and the company set up to establish ineffective for companies to set up the premise of this flawed behavior were discussed. [38] Some scholars think that the so-called revocation of the company registration and business license revoked behavior "is actually a legal personality of companies have made negative." [39] Some scholars believe that the company registration authority should not be given the right to withdraw, but should reject the flawed power companies to set up configuration to the court. [40]

I believe that the company set up the legal consequences of revocation of registration, the registration resulting from the company set up to analyze the legal effect due to existence of the validity of company registration and registered against the doctrine of the other registered and established doctrine, the principle of antagonism in the registration, if the registration defective revocation procedure applicable to relief, affecting only have effect against third persons, the company has been formed to establish the effectiveness and no real impact in the register established under the principle of doctrine, such as defective and apply the revocation of the registration program, has been registered and established a direct impact on the establishment of the effectiveness of the company. China pursues a company registered and established doctrine, once the company registration authority revocation procedures applicable to company registration, company registration revocation decision, because the decision to revoke registration of a company set up retroactive effect, it means the company from the beginning there has been no registration of establishment, the establishment of valid and that the company is set up not state its case to establish the company should be treated.





Notes:
[1] See Jiang Daxing: <<Law of the start and the judges>>, Law Press, 2001 edition, p. 337, Jiao Yanhong: <<On the improvement of the company to establish a system flaw>> load <<Henan Political Management College of Science>> 2003 1, Yu-Zheng: <<"flaws company" legal capacity>> set <<law applicable to>> 2003 No. 6, Min-An: <<Company defects to establish the effectiveness of research>> , containing <<Comparative Law>> 2004 No. 4, Lujie Xiong, Jian-Wei Zhou: <<China's relief program set up to explore flaws>> set <<Contemporary Law>> 2006 No. 2, Jianwen: << company to establish a system conceptually flawed research - our company to establish a system flaw critical and theoretical framework>> containing "Business Economics and Management>> 2007 1.

[2] the company's legal treatment of defects, some scholars believe that the company should be established to set up legal personality flaws regulatory, follow the "principle remains, as far as possible to make corrections, exceptions denied," the legislative principles, were treated differently in different situations. See room Shaokun, Wang Hongping :<<公司瑕疵设立的法人格规制>>,载<<中国法学>>2005 年第2 期.

[3]参见钟民:<<浅议撤销公司登记几个问题>>,载<<工商行政管理>>2005 年第 4 期.

[4]也有学者把学界关于企业(公司登记核准行为的分歧概括为"行政许可说"和"行政认可说"两种.参见蒋大兴:<<公司法的展开与评判>>,法律出版社 2001 年版,第 372 －373 页.

[5]参见张步洪:<<第十五章:行政许可>>,载应松年主编:<<当代中国行政法>>,中国方正出版社 2005 年版,第 694 －696 页.

[6]参见崔卓兰、吕艳辉:<<行政许可的学理分析>>,载<<吉林大学社会科学学报>>2004 年第 1 期.

[7]参见王远明、唐英:<<公司登记效力探讨>>,载<<中国法学>>2003 年第 2 期.

[8]前引[8],第 375 －376 页.

[9]对于<<行政许可法>>第 12 条第 1 款第(五项的这一规定,有学者从其违反了权利的保护与公共利益的维护这一基本法理,认为其不具有正当性.参见王妍:<<公司登记行政许可性质的法理探究>>,载<<法学论坛>>2009 年第 3 期.

[10]参见肖海军:<<营业权论>>,法律出版社 2007 年版,第 41 －59 页.

[11]参见［美］汤普逊:<<中世纪经济社会史>>(下册,耿淡如译,商务印书馆 1997 年版,第 161 －207 页.

[12]参见［美］哈罗德•J•伯尔曼:<<法律与革命>>,贺卫方、高鸿钧等译,中国大百科全书出版社 1993 年版,第 473 －488 页.

[13]正因为如此,有学者认为,现行民商事登记中公权力的不当干预与私法中的自由、自愿、自治原则多有不合,建议以"权利外观自证优先原则,改造现行的权利证明公示机制,设立以民事赔偿为保障的法定公证"制度.参见杨遂全:<<民商事登记改革与法定公证>>,载<<法学研究>>2006 年第 2 期.

[14]参见杜景林、卢谌译:<<德国股份法、德国有限责任公司法>>,中国政法大学出版社 2000 年版,第 16 －18 页、第 180 页.

[15]参见金邦贵译:<<法国商法典>>,中国法制出版社 2000 年版,第 94 页,罗结珍译:<<法国公司法典>>,中国法制出版社 2007 年版,第 55－ 56 页,肖函、张振:<<关于法国公司登记制度若干问题的思考>>,载<<商场现代化>>2006 年第 11 期.

[16]参见肖建民:<<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,参见王丽莎:<<美国与我国公司登记制度比较借鉴>>,载<<晟典律师评论>>2009 年第 1 期.

[17]参见施天涛:<<公司法论>>,法律出版社 2005 年版,第 111 页.

[18]参见王书江、殷建平译:<<日本商法典>>,中国法制出版社 2000 年版,第 4 页、第 14 页、第 38 －39 页.

[19]参见于敏、杨东译:<<最新日本公司法>>,法律出版社2006 年版,第76 页、第310 页,参见吴建斌等译:<<日本公司法典>>,中国法制出版社 2006 年版,第 24 页、第 285 页.

[20]当然,也有学者从行政程序法和工商行政管理的实际经验出发,认为工商登记机关对虚假证明文件的法定审查义务应以形式审查为原则、实质审查为补充.参见李孝猛:<<公司登记机关审查虚假证明文件若干法律问题的思考>>,载<<中国工商管理研究>>2006 年第 2期.也有学者把其概括为谨慎审查义务或者谨慎审查原则,参见范健、王建文:<<公司法>>,法律出版社 2006 年版,第 188 页.

[21]前引[14],第 17 －22 页、166 －167 页.

[22]前引[14],第 179 页.

[23]See Companies Act 2006(UK§ 1000,§ 1001,参见葛伟军译:<<英国 2006 年公司法>>,法律出版社 2008 年版,第 626 － 627 页.

[24]参见沈四宝编译:<<最新美国标准公司法>>,法律出版社 2006 年版,第 26 页.

[25]参见虞政平编译:<<美国公司法规精选>>,法律出版社2004 年版,第317 －318 页,参见徐文彬等译:<<特拉华州普通公司法>>,中国法制出版社 2010 年版,第 14 －15 页.

[26]参见吴建斌、刘惠明、李涛译:<<日本公司法典>>,中国法制出版社 2006 年版,第 24 页、第 468 页.

[27]参见周玉华主编:<<韩国民商事法律汇编>>,人民法院出版社 2008 年版,第 309 页.

[28]参见罗结珍译:<<法国公司法典>>(上,中国法制出版社 2007 年版,第 371 －373 页.

[29]参见罗结珍译:<<法国公司法典>>(下,中国法制出版社 2007 年版,第 616 页.

[30]参见肖海军:<<营业准入制度研究>>,法律出版社 2008 年版,第 270 －317 页.

[31]参见高在敏:<<商法部门论>>,法律出版社 2008 年版,第 54 －56 页.

[32]美国学者麦克尼尔把契约分为个别性契约(一次性契约,当事人之间进行的单独的、有特定目的、一次性的物品交换型契约和关系性契约(长期性契约,即确定当事人之间某种权利与义务关系的契约两大类.企业(公司由于是生产要素的所有者、投资者、经营者、管理者之间通过一系列契约形成的组织体,可以认为以企业(公司为中心的交易关系就是一种关系性契约关系.参见［美］LR 麦可尼尔:<<新社会契约论>>,雷喜宁、潘勤译,中国政法大学出版社 1996 年版,第 10 － 15 页.

[33]有学者认为,公司登记法的"经济户籍"法、程序法、强制法和公法化等特性,决定其基本价值取向应考量安全和效率两大主要因素,即以安全为基础,以效率为目标,在保证基本安全的基础上追求登记效率的最大化.参见李克武:<<论我国公司登记立法价值取向的选择>>,载<<华中师范大学学报(人文社会科学版>>2009 第2 期.

[34]参见虞政平:<<"瑕疵公司"的权利能力>>,载<<法律适用>>2003 年第6 期.

[35]从我国行政审判的司法实践来看,法院在审理行政诉讼案件时,对作出撤销原具体行政行为的判决也是相当谨慎的.如<<最高法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释>>(2000 年第58 条规定,被诉具体行政行为违法,但撤销该具体行政行为将会给国家利益或者公共利益造成重大损失的,法院应当作出确认违法判决,而不是作出撤销判决.

[36]参见焦艳红:<<公司登记失实致第三人损害的民事责任>>,载<<河南省政法管理干部学院学报>>2004 年第 2 期.

[37]参见叶林:<<公司法研究>>,中国人民大学出版社2008 年版,第350 页.

[38]参见刘俊海:<<现代公司法>>,法律出版社2008 年版,第77 －80 页.

[39]参见周友苏:<<新公司法论>>,法律出版社2007 年版,第171 页.

[40]参见蒋大兴:<<公司法的观念与解释Ⅰ>>,法律出版社 2009 年版,第 263 －267 页.

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