Research On The Legal System Of Commercial Registration

The legal system of commercial registration is one of the subjects concerned in law circle in recent years. China Law Society listed issues on the system as key thesis in 2004 annual conference of commercial law. Many problems exist in the legal system of commercial registration in our country, and lots of articles have discussed the problems. Since having been worked for over ten years in the organ in charge of commercial registration----the Administration for Industry and Commerce, and having s engaged in the work of commercial registration directly, the writer has tasted the flaws of the system and realized the necessity of making a unified legislation of commercial registration. Starting from thoughts on working practice, and referring himself to the achievements of predecessors, the author energetically probes into general issues and specific issues on the legal system of commercial registration, and gropes for the legislation of commercial registration in our country, with the hope of making some contributions to the research on the legal system of commercial registration. The article can be divided into four parts totally. The first part discusses the definition for the concept of commercial registration, the characteristics of commercial registration, its nature and the value of the legal system of commercial registration. The law circle has different understanding about the definition for the concept of commercial registration, its nature and its value. In defining the concept of commercial registration, there are "system theory","juristic act theory", "private law act theory", and "intermixture act theory of public law and private law"; On the value of the legal system of commercial registration, different viewpoints also exist. With the illuminations and references of research achievements by predecessors, the author argues that we should define the nature of commercial registration as intermixture act of public law and private law, and the legal system of commercial registration has the systematic value of safeguarding the transaction security, improving the transaction efficiency, reducing the transaction cost and regulating the transaction order. The second part focuses on researching specific legal issues of commercial registration such as the extent of commercial registration, its proceedings, its procedure, its efficacy and its obligations and so on. It discusses the extent of commercial registration completely. The object of commercial registration is commerce. The extent of commercial registration is the commerce subjects that should be registered. The commerce subjects have commercial capability different from the general civil subjects. Countries define the commerce subjects with different act standards, occupation standard, nominal standards and knowledge standards according to their own conditions. For the registration of commerce subjects, each of the countries generally takes registration as principle, and non-registration as exception. Compulsive registration is generally applied to commercial juridical person, and small-scale commercial individuals are usually free from registration or register voluntarily. It makes comparisons among the proceedings of commercial registration in China, Britain and Germany, and it poses that the proceedings should embody the demand of public notification and directly relate to the commerce subject and commercial activities of the commerce subject. The proceedings of commercial registration have such characteristics as legalism, relativeness, openness, stableness, and so on. As the center of the legal system of commercial registration, the proceedings of commercial registration in each country can generally be divided into four procedures: application, censor, registration and notification. The article sums up the characteristics of commercial registration application as beginning according to applications, adopting the written form and proposes following the credit principle. It compares the advantages and disadvantages of three modes of commercial registration: form censoring, essential censoring and compromising censoring, and points out that the form censoring, which is more suitable for the developing trend of commercial activities, accords with the need of convenience for commerce subjects to enter and exit the market, the censoring practice of commercial registration, the need of scientifically regulating commercial activities, and the demand ofeconomic globalization to the legal system of commercial registration. It also compares the different forms taken by different countries for registration, which primarily include the written form and the electronic form, while the electronic form will gradually become the main form. The article analyzes the different legislative tendencies in the legal system of commercial registration: focusing on notification and focusing on registration. And it holds that the openness of commercial registration proceedings is an important qualification to achieve the value of the legal system of commercial registration. Compulsive provisions should be given to notification in the legislation of commercial registration. Based on the achievements on the commercial registration efficacy by research circle, the article poses that commercial registration to commerce subjects is mainly represented as foundation efficacy and remission efficacy, while commercial registration to the third party is mainly represents as oppositional efficacy. There are relatively less researches on the legal obligations of commercial registration. Combining the legislative provisions about commercial registration in countries and personal working practice, the author divides the legal obligations into the duties of commerce subjects, duties of commercial registration organs, and duties of related organizations. The duties of commerce subjects can be represented as laches in registration, violation in credits, unfulfilment in legal obligations, bad acts, and ill government of business permits; The duties of commercial registration organs can be represented mainly as omission in registration, mishandling in registration, and figuring for improper benefit; The duties of related organizations can be represented mainly as duties caused by providing mendacious proofs and documents. The third part analyzes several problems and defects in the legislation of commercial registration in our country, and discusses the useful references through the research on legislation of commercial registration in different countries. With obvious transitional features, the legislation of our commercial registration has flaws and defects. According to the reflections on our legalsystem of commercial registration in the law circle, and linking to personal working experiences in commercial registration, the author puts forward that in building our legal system of commercial registration, there are such defects as over-complicated legal system of commercial registration, too much administrative control, and low efficiency in registration. It is worthful to use the successful foreign experience in legislation of commercial registration for references. By researching foreign legislation of commercial registration, the author holds that foreign legal systems of commercial registration show the tendency of unity, with the characteristics that the legislation of commercial registration becomes the main legislative form, compulsive registration mode is mostly adopted, the principle of strict rules becomes the mainstream of legislation, and specialized organs for commercial registration are founded as basic form. Those developing trends can offer useful help to the legislation of commercial registration in our country. In the fourth part, with the combination of the reality of our economic and social development and the experiences of commercial registration legislation in different countries, the author puts forward the suggestions to rebuild our legal system of commercial registration, and poses the propositions of unifying the legislation of commercial registration, heightening the efficiency of registration, respecting autonomy according to commerce subjects, confirming the duties for commerce subjects to register and so on.