The Validity And Civil Liability Of The Defective Company Established Registration

Company established 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 established 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. From analyzing several validities of the registration modes in the world, they have proof validity, public confidence validity and resistance validity.In practice, the defective company established registration is not rare. The defective company established registration is of great importance to the availability of the company's instauration. The corporation laws of different countries have different opinions to the legal consequence of the flaw of company established registration. The Great Britain accepts principle-admitting doctrine, the U.S.A. accepts specific admitting doctrine, Germany accepts nullification-disaffirming doctrine, Japan and Korea accept discriminating disaffirming doctrine and Taiwan of our country accepts cancellation-disaffirming doctrine, China accepts cancellation-disaffirming doctrine. In our country, the legal liability of the defective established registration has many shortcomings. The present domestic legislations give detailed provisions of company established registration parties' administrative and criminal liability, but neglect the civil liability. On the basis of general study on defective registration legal liability system, we need made research on the liability object, liability fixation doctrine, elements of liability, assuming means and extent of liability of applicants' and relative registration assistants' defective established registration. 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 established 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.