On Chinese Legal Representative System Of Enterpirse And Its Perfection

The legal representative system is a legal system with much Chinesecharacteristic, of which the emerge and development is closely related to the practiceof enterprise system lasting30years following the Chinese reform and openingpolicy. The system is not only the result of the legal construction, but also beingstrengthened during the process of the institutional practice. During the process, theemerge of the system has been deeply affected by the loyalty to the legalrepresentative system. Therefore, when offering a proposal of the perfection ofChinese legal representative system, we should reflect on the background on whichChina choose the legal representative system.At the beginning of the research of this context, we summarized the legislativerepresentation concluding the word “legal representative” in the statutes since thefoundation of new China, and analyzed its origin and development positively. Thus,we gets the idea of how the word emerge and in which face it is applied into ourlegislation. Together with the summary, we analyze the further institutions derivingfrom the legal representative system by changing the statutes into reality, and whataffects it have on the internal structure of the corporations and the externaldeclaration of the will, etc.After the classification of the legal representative system, we start to investigateit in the view of the system operation. There are three characteristics of the system,aiming at which queries produced: legality, uniqueness and the confusion between theexpression and the formation of the will. Then, the context analyze severalcontradictions and issues raised during the practical operation of the system, such as‘the phenomenon of the arrogation of the legal representatives’, the predicament of the corporation’s just claim, which are both the problems remaining to be settled inthe process of the perfection of the legal representative system.Following the analysis of the statutes and the current status of the system, we tryto find out the background on which emerge the legal representative system, and theproblems which the system is made to solve, and the mentality which the selection isapplied, and finally the elements which leads to the current status of the legalrepresentative system. By this investigation, We find out that the legal representativesystem is generated by the misunderstanding of the proprietary rights and themanagement rights, and through using it as a method of gingering the state-ownedenterprises, finally, carrying on the long practice of ‘factory director responsibilitysystem’ under the holism legislation mode. The sympathetic understanding to thesystem helped to flexibly propose more specific solutions during the process ofperfection.The common selection foundation of the legal representative system of Germany,Japan and France is the existence of the common content in the practical operation,Therefore, the comparative research on which will be beneficial advice for theperfection of our legal representative system.We put forward several suggestions on the perfection of our legal representativesystem on the basis of the researches above. We assert that on the view of thedisjunction of expression and formation of the will, statutes should be definite not tobind the two things up. The legal representative system is a default system, which isgiven tacit consent to be the external will-expressing agency. When there is specificevidence of discordance between legal representative’s and the true one of theenterprise, the latter should be prior. It is extrude on the aspect of the enterprise’sright of just claim. The signature of the legal representative is the tacit consent to theagreement of the enterprise on the decision of starting just claim. However the courtcan still make a registration depending on the internal legal resolution of the legalperson if there is no legal representative’s signature though. Finally, we shouldreconstruct the relationship between legal representative and legal person using notthe holism legislation mode but the ‘agency theory’, and retain an access for the legal person or the third man asking for the compensation for the loss caused by the legalrepresentative because of their intention or gross negligence.