Font Size: a A A

A Study Of Company Registration Law

Posted on:2006-03-28Degree:DoctorType:Dissertation
Country:ChinaCandidate:K W LiFull Text:PDF
GTID:1116360182967643Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Company registration means the legal mechanism according to which the registration agency registers the statutory items on the registry book on the application of the registration applicant after strict examination. It directly involves the existence of the company as a legal subject, the capacity scope of the company, the status of the company in litigation, and consequently the market transaction order and safety. Company registration law shall belong to civil and commercial law, though it is closely connected with administrative law and economic law and it presents strong procedural character. It is of both important theoretic value and strong practical significance to study company registration law. It could offer reference to the perfection of company registration legislation and even the whole business registration legislation as well. However, the study on it is insufficient at home and abroad, especially in the Chinese Mainland. The present research is only limited within the sphere of simple general description and repetitive, lacking in depth, breadth and systematism. It not only affected the scientific aim of relative legislation, but led to kinds of confusion and chaos in the company registration practice and relative judicial practice. Therefore, it is urgent to systematically study company registration law in depth. Based upon systematic research, emphasis and innovation, adopting the comparative research method, this thesis carries out comprehensive and in-depth research on company registration law, especially on the domestic company registration law.This thesis consists of Introduction and six chapters, totaling to 140,000 Chinese characters.The Introduction looks back on the developing history of company registration, and reviews the connotation, extension, characteristics of company registration and its relation and distinction with relative concepts. The practice could retrospect to the European merchant registration in the Middle Ages. Yet the actual company registration with modern significance started from the 1861 General German Commercial Code. The earliest company registration in China arose in the late QingDynasty. But China did not establish modern company registration mechanism until the Kuomintang Administration promulgated Business Registration Law in 1937. New China's company registration mechanism gradually developed but is still immature nowadays. According to different criteria, company registration can be classified in many ways, the most important and prevalently adopted of which is the classification among registration of incorporation, modification and cancellation. Company registration is closely connected but distinct with commercial registration, exhibiting independent value. The independence of company registration law is the developing trend of modern society and the exhibition of the extreme importance of company law.Chapter 1 studies the legislative value orientation of company registration. First it analyses the constituents of the value system of law, and based on the specialty of company registration legislation, advances that the basic value should be safety and efficiency. But the two aims often contradict each other and need coordination. As to the domestic legislative value selection, safety should be the foundation and efficiency should be the object. Pursuing the utmost efficiency on the basis of ensuring basic transaction safety is not equal to purely and unilaterally pursuing efficiency.Chapter 2 analyses the function and nature of company registration. It has multiple functions including public service of company business information, service of company registration procedures, market admission and abnormity supervision, transaction safety guarantee, promoting transaction efficiency and expediting state revenue collection. Its function changes with the social movements. Modern society should give prominence to its public service function and decrease its administrative management. Company registration has compound nature such as public and private behavior, administrative and civil behavior, but of which the public behavior is the prominent. In our country, its nature should be defined as administrative behavior affirming rights in response to application, but it should exhibit its function of public service but not administrative management.Chapter 3 conducts comparative analysis and research on the effect of companyregistration. It analyses several legislation modes in the world, and the general effect, special effect, the arising time of effect and defective company registration effect. Based on that, it further inspects and reviews the effect of the business corporation operating certificate and puts forward that the domestic legislation should keep registration as a necessary step, and endow it with general effect and special effect. The effect arises when the registration agency takes down the necessary items on the registry book. In case of defective company registration, the company should not confront third parties with true information and third parties should not be permitted to cancel the existing transactions on the excuse of defective registration. The present domestic legislation gave multiple effects to the license and led to theoretic puzzle and practical chaos. We should go back to the fundamental theory of company registration, only endow it with the proving effect and take registry as an entry-into-force component for company registration.Chapter 4 studies the company registration agency. It does comparative research on the legislation, theory and practice about the establishing mode, responsibility arrangement, personnel selection and assessment in the typical countries, inspects the present situation in China and puts forward some reform suggestions. Uniformity, authority, convenience, service and expertise principles should be adhered to in setting up registration agencies; the power should be left to administration agencies in our country but not to court and commercial chamber, while the system should be re-designed to maintain its independence and the administrative character should be weakened to make the service function stand out; among the three legislative creeds in the agency's examination mode, China should cling to substantive examination and ascertain the registration agency's responsibility. To ensure the quality of company registration, it is significant to emphasize the homogeneity of registration officers and establish corresponding safeguard mechanism. This chapter made specific study on these problems.Chapter 5 explores registration items and procedure. It chooses the controversial problems on selection of registration items and procedure design and problems embodying the developing trend of company registration. Adopting comparativeanalysis and positive research, it probes into the company name registration, company registry application, correction and cancellation of company registration, business scope registration and electronic company registration, etc.. For instance, the author examined the company business scope registration and insists that although it is a statutory registration item in Chinese company law and company registration law, the restriction upon business scope should be relaxed or even abolished to adapt to the global trend. Furthermore, the author put forward some specific suggestions for Chinese electronic company registration according to the modern technology developing trend and some developed countries' legislative practice.Chapter 6 studies the civil liability arising out of company registration. The present domestic and foreign legislations give detailed provisions of company registration parties' administrative and criminal liability, but neglect the civil liability. On the basis of general study on defective registration legal liability system, this chapter made unprecedented research on the liability object, liability fixation doctrine, elements of liability, assuming means and extent of liability of applicants' and relative registration assistants' defective registration. Some suggestions are provided. The author- insists that it is necessary for the legislation to provide relevant parties' (including registration agencies, applicants and assistants) civil liability in case of defective company registration. The registration agency's civil liability towards applicants and third parties is state compensation liability, mainly in the forms of compensation. Limitation principle should be applied to ascertain the specific compensation extent. The registration applicant's might assume tort liability, liability for breach of contract or liability for making up capital balance towards third parties, other incorporators or the company in case of defective registration. Taking the capital assessing bodies (including the accountant firms and auditor firms) as example, the registration assistants should assume civil liability toward transaction third parties if they suffered loss as the result of defective capital assessment. This kind of liability belongs to expert liability and the basic doctrine for expert liability should be applied to it.
Keywords/Search Tags:Company Registration, Nature of Registration, Effect of Registration, Registration Agency, Civil Liability
PDF Full Text Request
Related items