Revocation of the registration system on the companies to set up (the) - 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 "Section 199 violations enumerated in Article, funded by the company's original 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, as avoid unnecessary damage and social unrest trading, the practice should be used with caution in company registration revoked.



Fourth, the revocation of company registration and business license revoked can choose to apply

From our current <<Law>> Section 199 and <<Company Registration>> 68, Article 69 of the thrust of view, revoking the registration (including the establishment of registration and revocation of business licenses in parallel and can be select the appropriate bit sequence. So, the company registration authority the possibility of the applicability of this provision to be tied to selectively apply? To answer this question, but also for the revocation of company registration and business license revoked necessary comparison .

(A revocation of company registration and revocation of business license of comparative

1 if the company finds different substantive Laws and the establishment of a withdrawal of Italian company registration organ of its own in the company's registration information based on false statements made by the executive to confirm the correct behavior and negative, their behavior is the nature of their previous company registration authority make the company registration act of denial, given the behavior of administrative revocation of a retroactive, which means that the administrative revocation of the original companies to set up actions deny the legal effect of registration act, which declared that the company has completed the establishment of the original registration of attributed invalid, the establishment of the company effective from the beginning is not confirmed but not founded in the state, while the revocation of business license is registered in the company's business activities in serious violation of <<Law>> Division and other legal provisions to the company's an administrative penalty, the company focused on unlawful conduct business behavior of punishment, and punishment is the core of deprivation and elimination as the main supplier - the company's business qualifications, such punishment based on the recognition and effective establishment of the company as a basic premise.

(2) whether the company continue to exist, the legal implications of different companies to set up registration for our country to pursue the establishment of the principle elements of the doctrine, once the original company registration authority to revoke the registration of the establishment, it means that the company was established from the beginning is not valid, it does not exist can continue to exist a while revoked the business license is only just the ability to eliminate the company's business, the company is deprived of the qualification to continue operating, rather than eliminate the company's own personality, but do not have to eliminate the company as a business qualification legal meaning and legal effect in the revocation of business license of the punishment is made, the company's legal status as a business, then make a business qualification will continue to exist [1], only because of their business licenses revoked, their business has continued to impossible, as the executive order the dissolution of the situation, the company must enter liquidation until the liquidation is completed, the company again for off. [2] However, in the company's business license was revoked after the company for cancellation prior to this time, the company as legal person or as a main business is still subsisting.

3 of the company's founders and investors of different liability rules apply, such as defects in the company applies for revocation of company registration, company registration is due to the company registration authority in denial and revocation of the establishment from the beginning is not effective for companies to set up failure or the company can set up rules for the case of debt, the company sponsors and investors to set up companies to launch their company's debts to settle all debts and liabilities of the former joint liability, such as flaws in the company of the applicable business license is revoked, the company is forced to disband due to executive order, should be in accordance with our <<Law>> the provisions of Article 184 into liquidation, and liquidation in accordance with rules of limited liability, in accordance with <<Law>> Section 197 under liquidation order the company to settle claims of creditors, the company sponsors and investors need to settle the company's creditors bear the responsibility.

4 for the creditors of the company's legal defects in the different security, such as defects in the company applies for revocation of company registration, for defects of a specific company's creditors, because the rules of its debt is joint and several settlement, the company sponsors and investors to be the company (although the company registration was revoked by the establishment of the creditor and no longer jointly and severally liable, it is a double-secured debt (the company and the company sponsors defect, investors, etc., diverse, such as is applicable to the Company of the defect revocation of business license, the company's debt due to application of force after the dissolution of the company's liquidation proceedings, the property of their debt only for the company's existing all the property, the secured creditor's property is a single (and only defects in the company in property) and a dollar, obviously, far less than the protection of creditors and revocation of registration of companies to set up the legal effect.

5 applicable to court proceedings on the parties. Defects such as revocation of company registration applicable to the Company, the relevant parties concerned, shall fail or established companies can not set up the aftermath of credit and debt handling procedures, follow the unlimited, joint and several, full settlement rules, in full settlement of the creditors, such as defective revocation of business license applicable to the Company, should start after the dissolution of the company's mandatory liquidation procedure, follow the company's limited liquidity rules, and if so, the liquidity of creditors is often not in place.

In sum, it is easy to see, as applicable to the Company for defective revocation of company registration or revoke the business license, its actions subject the legal sense, the force of law and the legal consequences are completely different.

(B <<Law>> the circumstances specified in Article 199 should not apply to revoke the business license

From China <<Law>> Article 199 of the cases provided to meet the basic situation is this false registered capital, submitting false materials and other fraudulent means to conceal important facts, three of these three cases belong to the company registration of the applicant to submit an intentional act resulting in the application documents and materials there is a serious distortion, resulting in the establishment of registration of the company registration authority seriously inconsistent with the actual situation, the damage in addition to company insiders, creditors and other stakeholders, but also important thing is seriously damaging the credibility of the company registration authority.

Relatively speaking, revoke the business license is an administrative punishment measures, its legal effect is to deprive the company's business qualifications, to eliminate its operating capacity, the object of punishment is the company rather than the company's investors or the promoters from the administrative penalty when the penalty point of view, applicable to revoke the business license on the premise should normally be the company's business there is violation of laws, administrative regulations or social public order and morals of the situation. typical case of a company registered after long periods of business, illegal rental business license, the production of fake and shoddy products, in violation of laws, administrative regulations or social public order and good business matters, etc., belong to the company's illegal business case, then deprived of the company's operating status can basically eliminate the company's unscrupulous business behavior, such as to the consideration of China << Companies>> the circumstances listed in Article 199, will find that false registered capital, submitting false materials and other fraudulent means to conceal important facts of these offenses, the majority of cases occurred prior to registration of the company set up by the company's original investors or sponsor, the applicant is not the company is. more because of the law of the companies involved in the establishment of registered defects problem, and the company has no real business relationship, we can see, this situation clearly does not have revoked the company business license of the basic conditions for the application.

Then withdrawn from the application of company registration (including the establishment of registration and revocation of business license registration of real defects due to damage to a third person point of view of the legal effect of the relief, if applicable, revocation of business licenses, de facto recognition of the defects due to the effective establishment of the company , for damage to third parties only in the company liquidation procedures and rules within the limited relief in the company's liquidation process, such as exhaust <<Law>> the existing provisions, only Article 20, paragraph 3, Article 31 and Article 84 of its association with, but, according to China <<Law>> Article 20, paragraph 3 of that article, a prerequisite for its application is "abuse of corporate shareholders and limited liability of shareholders independent status, evade the law, serious damage to the interests of creditors of the company ", and false registered capital, submitting false materials and other fraudulent means to conceal important facts clearly do not belong to this case, naturally can not invoke the provisions of the corporate personality of the complaint, to the damage of the creditors effective relief. Moreover, due to damage to third party registration of real flaws in the range of far more than mere creditors of the company is much broader. As for the <<Law>> Article 31 and Article 84 under the main shareholders contribution is not really the additional responsibilities and to fill the responsibilities, such as a company into liquidation, the original shareholders of the company is not really part of the capital invested in back, for the liquidation of the assets of the company as part of its duties and responsibilities and its scope should be filled contribution is not really that part of the Supreme People's Court issued on May .2008 of <<on the application of "Company Law" a number of issues under (b>> Article 22, paragraph 2, of similar situations are clearly defined and explained , due to defects Shousun registration Shizhi other Shousun third party interests are liable not difficult to see, although the cancellation of registration of the company's flawed business license is already more severe administrative punishment, but because of the Shousun third were obviously inadequate relief, in the process of company registration fraud accusing him of fraud and the perpetrators of the obligations and responsibilities can be greatly reduced, a move tantamount to fraud in the process of company registration act as a disguised appeasement and indulgence, the actual legal effect is undoubtedly negative. relatively speaking, if applicable, revocation of company registration, failure or established companies to set up the aftermath of credit and debt can not handle you can set up in accordance with the company to treat, follow the unlimited, joint and several, full settlement rules, you can achieve the maximum registration of real defects due to damage to third party effective relief. so, in the process of implementation of company registration fraud and fraud on the person's duties and responsibilities significantly increased its attempts to company registration process in order to obtain illegal benefits fraud act may be no chance to be an effective disciplinary process of company registration of false behavior.

Thus, it is easy to conclude that China <<Law>> Section 199 violations enumerated in the absence of the creation of companies to set up judicial invalidation or revocation under the premise of the system, you can apply to administrative revocation proceedings conditionally the original establishment of registration should be revoked, but not applicable to administrative penalty proceedings for the purpose of revocation of business license penalty.

5, the company set up a registration application withdrawn

(A company set up the conditions of application of registration revoked

Because, after all, a company registration revoked retroactively and denied the effective establishment of the legal effect of the legal consequences and their are many, and sometimes may have debt and the transfer of responsibility of the main chain reaction. In order to avoid undue damage to the transaction and social turmoil, the company registration authority in the application to revoke the company registration procedures and company registration revocation decision should be to safeguard the legitimate, effective and sustained operating under the premise of strictly following conditions apply: (a company set up for registration there are significant flaws in the substantive case, the general substantive and procedural flaws and other defects in the case registered, you can set up a registration corrections, additions and changes to procedures to be corrected, and should not unduly expand the revocation of the scope of company registration. (2 shall be established by law prior to registration of the company's original investors, or by the sponsor, the applicant is a false registered capital, submitting false materials and other fraudulent means to conceal important facts and other circumstances, lead to significant errors with company registration and defects, so that the registration of the serious flaws in the company, is a company registration organ of its own negligence or duty of care deficiencies caused by registration errors, error correction should take the necessary administrative procedures to make corrections, not applicable to revocation of company registration (3 false registered capital, submitting false materials or other fraudulent means to conceal important facts required to achieve serious situations such as the extent that is sufficient to cause the Company to establish the fundamental conditions of substantial loss, only apply to company registration revoked such circumstances are not serious enough to affect the establishment of companies to set up real conditions, it should not apply to revocation of company registration, but according to their specific circumstances, the company set up by the registration corrections, additions or changes to registration procedures, not been registered to correct the real issues (4 false registered capital, submitting false materials or other fraudulent means to conceal important facts required to achieve serious situations such as the extent to make corrections, administrative fines and other administrative measures are not enough to fundamentally change the company registration flaws status quo, and can not choose to correct, supplement or change the registration to be relief, the company set up a registration revoked should be applied, ie, for revocation of company registration is made in the last resort the last option, if alternative administrative relief programs to choose from, should be avoided.

(B) <<Law>> the circumstances listed in Article 199 of the identification of serious

Under the existing <<Law>> Section 199 provides the basic spirit of false registered capital, submitting false materials and other fraudulent means to conceal important facts to serious situations such as the extent of the company registration application withdrawn (including company registration revoked statutory requirements. [3] natural for <<Law>> the circumstances listed in Article 199 of the serious and the judge found for what has become right and proper application of the revocation of the company registration process is key. In my opinion, far company registration revoked, the <<Law>> the circumstances listed in Article 199 of the circumstances are serious, should be enough to understand their impact or cause the Company to effectively set up the basic conditions underlying the loss of their specific situation can be explained as follows :

First, the false registered capital case, the registration of such companies to set up the entire registered capital were all false, false, or the amount and proportion of registered capital has been sufficient to enable the company to lose its minimum statutory capital established conditions (such as general class Co., Ltd. paid-up capital of less than 3 million, a Company Limited paid up capital of less than $ 100,000, Inc. paid-up capital less than $ 5 million or special conditions (such as commercial banks, insurance companies, securities companies, trust Investment companies and other special industries such companies paid up capital of less than <<>>,<< Insurance Law, Law on Commercial Banks>>, the "Securities Act >>,<< Securities Investment Fund Law>> and other special law, etc.), or false registered capital by the forgery committed, etc., can be identified as "false registered capital" of the serious situation.

Secondly, the situation in terms of submitting false materials, such as the Department of all application materials are false or forged, or involved in that company's capital, the promoters or the original investors (shareholders), the composition of the company office workers, company sites and conditions the real conditions of application class system of false or forged material, or need to obtain a special exception to the administrative licensing class company documents or documents of approval of administrative licensing forged or altered, etc., can be identified as "submission of false material" of the plot reached a critical level .

Third, any other fraudulent means to conceal important facts of the severity, can be interpreted as a legitimate form of concealment is sufficient to cause the Company to establish violation of laws, administrative regulations, and social public order and good customs and other circumstances, such as a legitimate means to conceal the company's illegal purpose, to cover up or conceal the company's articles of association laws prohibit nonprofit organizations or public officials of state organs and other important facts or investor information on the company's business, when there are significant environmental and ecological risks is sufficient to trigger an environmental disaster, or to conceal such facts, the existence of the company's business breach of public order and morals; deception to obtain approval of administrative licensing business, etc., can be identified as any other fraudulent means to conceal important facts and the circumstances are serious.

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(C company registration revoked way to start

Companies to set up an administrative revocation of registration withdrawn behavior, the original company registration authority in the application of the revocation procedures, in accordance with terms of reference should be made active or passive should apply for other interested parties to report to make? Registration revoked because the company do not know the nature of the act First, there are different views on its start-up mode. who argued that the administrative penalty, the company registered an administrative penalty withdrawal behavior should be the scope of the initiative by the original company registration authority to make ex [4] Some academics have also withdrawn from the perspective of administrative that should be made in accordance with terms of reference [5]

In my opinion, to correct positioning of the company registration revoked way to start, in addition to consider the nature of the act, we must also withdraw from the company registration and legal significance of the load to solve the system functions, such as its system functions only limited understanding or maintain the credibility of administrative registration or Xing Wei Dang Shiren be punished for an offense, you should follow the program mode powers doctrine, by the company of the original registration authority in accordance with terms Er made; such as expanding its system capabilities to Jiuji 因 substantive flaws in company registration and the benefits damaged stakeholders at this level, it should give it to report the application of the right to damage the interests of the stakeholders through the application starts, according to this basic idea, first, the company registration act revoked legal sense, the original company registration authority to establish the validity of the denial of registration, registration of companies to set up actions to maintain enough credibility to punish fraud in the company registration act, so as to maintain an orderly and fair business competition, relevant stakeholders and ensure the security and the legitimate rights and interests, the maintenance of (the seriousness of administrative acts, penalties (illegal parties and protection (security of transactions and the interests of relevant stakeholders and many other system functions and secondly, from company registration material defects facts, evidence and other means of access to information related to analysis, in addition to the original company registration authority by issuing certificates for inspection and investigation on its own, the more damage to the interests of stakeholders through the report apply for and receive the third, from the acts of administrative penalties and other administrative procedures to implement and <<Law>> the provisions of Article 199 of the basic spirit of the point of view, administrative penalties, administrative revocation, administrative enforcement and other administrative enforcement power with class of administrative action, except as the administrative body in accordance with the terms of reference start, the damage to the interests of stakeholders to report, report, application is encouraged, the attitude of the fourth in China <<Law>> institutional arrangements for company registration no substantial defects introduced judicial and judicial revocation proceedings declared null and void, judicial invalidation, revocation of the judicial system and administrative revocation of one of the most important difference is that the former is not a passive approach warning ignored by the parties to bring proceedings launch, which was active ex officio administrative authority to make the registration in the judicial system declared null and void and the absence of judicial revocation of the case, such as revocation of registration of companies to set up only by the original company registration authority in accordance with terms of reference to make, it means that as the company registered substantial defects and damage to the interests of stakeholders, the company set up because they can not remove the program start time, their legitimate rights and interests is difficult to get effective relief. Fifth, China's current 'Company Law>> shareholders, creditors, multi-set key protection system, such as Article 20, Article 64, Article 183, etc. However, Article 20 of the containment of the company's shareholders, actual controllers of improper behavior and avoiding the debt control act, section 64, a person involved in shareholder with the company's assets with the act, section 183 is involved in the deadlock and judicial dissolution of the company, and the judicial process are, naturally does not apply to company registration in the substantial flaws in the relief can not be invoked to deal with the legal provisions according to which , I believe that the company registration revocation, the original company registration authority can take the initiative to review and initiate ex officio, may also be interested in other applications, reporting the start.

(Four companies to set up pre-registration revoked disciplinary measures

As mentioned earlier, from our <<Law>> Section 199 is the spirit of the legislation point of view, for company registration revoked only false registered capital, submitting false materials and other fraudulent means to conceal important facts to serious situations such as the degree of and not by order correction, administrative fines and other measures to remedy the final choice of procedure. on the company registration organ <<Law>> Article 199 of the set of measures applicable to different situations and the legal implications and social effects, the order correct, the decision of the administrative penalty of disciplinary focuses on the parties if the parties by subsequent remedial, corrective, it's real situation and issues consistent with the same company registration, the company can continue to exist at this time whether the company's original investors, the company itself, the company employees, third-person trading company, the state tax are win-win results, and vice versa, if you choose apply to company registration revocation proceedings, the company registration can be revoked retroactive effect to the establishment of the company, its legal effect but also has non-response, and is the company set up a fundamental denial of registration act, revoke the registration of companies to set up nature of the offense determine its legal significance of the flaws that have been set up companies and the original investors have tremendous impact, but also to some extent endanger the security of transactions, the company's original investors, the company itself, company employees, third-person trading company, state tax, as a loss for both the outcome, in other words, choose to apply company registration revocation procedure is finally forced to choose program is also the most negative and the negative effects of the program. Because of this, the company registration authority in the application of the procedure should be very cautious in the company registration authority to revoke the company set up a registration decision, such as through the correct order, administrative penalties and other pre- disciplinary measures to urge the parties to remedy illegal, and by correcting the registration, supplementary registration or change of registration process, due to false registered capital, submitting false materials and other fraudulent means to conceal important facts and other circumstances caused by defects in the company registration matters timely correction, so real, so in terms of promoting business efficiency, or from the perspective of maintaining security of transactions, are more appropriate.

Above theory only relates to the registration of companies to set up real defects and the application of avoidance system, inference, from a broader sense, such as <<Law>> Article 199 of the defects listed company registered in the case company set up after the change of registration process, its flaws content only related to the registration of the applicant because of false registered capital, submitting false materials and other fraudulent means to conceal important facts leading to the registration of new false, if the matter can not be registered through the registration change process to be corrected in order to maintain the company's effective business, legal remedies should also be targeted because of false is only in the registered capital, submitting false materials and other fraudulent means to conceal important facts leading to the registration of new items, and can not deny the legitimate before and effective registration matters, such as revocation of registration procedures applicable to the company, then either the result of false registered capital, submitting false materials and other fraudulent means to conceal important facts leading to the registration of new defects null and void, without affecting the changes in defect registration matters before the company's legally registered and established normal business, the company's people are relatively more favorable deal, and if applicable, revocation of business licenses, it means the company will continue to operate due to loss of eligibility to force the dissolution of company liquidation procedures and in accordance with the principle of taking the company with limited credit and debt settlement, but this may be detrimental to the creditors of the company. Thus, with the company registration in the same substantive flaws in the registration of companies involved in the substantive flaws change for the company registration revocation procedure applicable to their business licenses suspended than to be more reasonable, appropriate and effective. can be seen, although in 2005 <<Law>> Article 199, to solve the <<Law>> and <<Company Registration>> of coordination and consistency among other issues, but on the law applicable to the situation and the implementation of the legal point of view, 1993 <<Companies Act "the provisions of section 206 to be more reasonable, appropriate and feasible more on this, I recommend <<Law>> 199 be amended as follows: false registered capital, submitting false materials or by other fraudulent means to conceal important facts to obtain registration of the company, the company registration authority shall order rectification of false registered capital of the company, a fine of false registered capital more than fifteen percent the amount of five percent shall be imposed for submitting false materials or by other fraudulent means to conceal important facts of the company, a fine of five million yuan fine of 500,000 yuan, in serious cases, revocation of the company registration , in the case of company registration, the company registration authority to revoke the registration of the company decided to establish the time when the recovery has been issued a business license at the same time, <<Company Registration>> should also be amended accordingly.





Notes:

[1] on the revocation of business license of the force of law, academia, there are still legal personality to eliminate that legal personality continues to exist that the difference between the situation that different perspectives in legislation, there are also presumed legal status to eliminate and to maintain legal status existence of different requirements. I believe that the revocation of business license, just to eliminate the company's operating status, deprived of the ability of the company's business, rather than eliminate the company's legal qualification, should be part of the administrative dissolution of the company's situation.'s Business license revoked, its for legal status of subject continues to exist, and only after completion of the liquidation and write-off procedures, the company's main qualification was wither. see Xiao Haijun: <<Enterprise Law, the original theory of>>, Hunan University Press, 2006, p. 122 - 123 .

[2] as the Supreme Court on January 29, 2000 to the Liaoning Provincial Higher People's Court issued "on the business license is revoked, its civil status to determine the reply>> (Law & Economics [2000] 24 letter pointed out: "business license revoked, industrial and commercial administrative organs according to SAIC's corporate laws and regulations of the law made by an administrative penalty. enterprise legal person business license revoked, shall be liquidated, liquidation procedures cancellation of registration for industrial and commercial end, and after the Enterprise Law talent wither, so corporate business license was revoked before the registration to be canceled, shall be considered the corporate existence, can the name of their litigation activities. "
[3] It is noteworthy that, according to China's "Administrative Licensing Law>> 69 of the Ordinance, the Chief executive of the licensing law matters can be" based on the request of interested parties or ex officio "to be revoked, which the article Paragraph 2 provides that "the licensee to fraud, bribery or other improper means to obtain an administrative license," a "should be removed" list. Some scholars believe that the company deregistered should be applied to <<Licensing Law>> 69 Article 2 of this article. See ZHENG Zhimin: <<On the revocation of the company registration application>> set <<China Business Research>> 2004 12. I believe that, as the company set up an administrative act of registration should not be licensing practices, should be classified as acts of administrative recognition, it should not invoke revocation of company registration, "Administrative Licensing Law>> Article 69, paragraph 2, under the circumstances, in our <<Administrative Procedure Act>> has not yet issued in the case, should be directly applicable <<Law>> the provisions of Article 199.

[4] See Zhangzhan Zhong, Yan Hui: <<On the repeal of company registration and other specific administrative act of judicial review>> set <<Administrative Law>> 2000 1, Wang Yuelong: <<"revoke the company registration" and "revoke the business license," Analysis of application>> set <<Legal>> 2009 6.

[5] See Shen Fu-Chun, Zou Rong editor: <<Administrative Law and Administrative Litigation Law>> University Press, Shanghai People's Publishing House 2007, p. 129-130 pages.

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