Chapter 3 of the General Principles of Civil Law is " Legal Person Chapter ". This chapter creatively divides legal persons into three categories: profit-making legal person, non-profit legal person, and special legal person . According to Article 76 of the General Principles of the Civil Law, profit-making legal person includes limited liability companies, joint stock companies and other corporate legal persons. It can be seen from the article that the company is the main normative object of Chapter 3, Section 1 (General Provisions) and Section 2 (Profit Legal Person), and many of the provisions in this chapter are not consistent with the relevant content of the Company Law. However, the General Principles of Civil Law is a new law and has made significant changes to the legal person system and content. If it is inconsistent with the provisions of the Company Law, the provisions of the General Principles of Civil Law should be given priority before the amendment of the Company Law.
To facilitate everyone to have a more intuitive understanding and further study of the relevant content of the General Principles of Civil Law and the Company Law, we sorted out and made the following table:
The first two sections of the General Principles of Civil Law and the Comparison of the Company Law
Company Law Civil Law Chapter 3 Legal Person
Section 1 General Principles of Civil Law Article 357 (Concept of Legal Person)
Legal Person is an organization with civil rights and civil capacity, independently enjoying civil rights and assumes civil obligations in accordance with the law. Article 36, paragraph 2 [Ending Approval]
If laws and administrative regulations stipulate that the establishment of a company must be approved, the approval procedures shall be handled in accordance with the law before the company is registered. html Article 358 (Law Person Established)
The legal person shall be established in accordance with the law.
The legal person shall have his or her own name, organizational structure, domicile, property or funding. The specific conditions and procedures for establishing a legal person shall be in accordance with the provisions of laws and administrative regulations.
If the establishment of a legal person is subject to approval by relevant authorities, the provisions shall be followed.
59 (Capability of Rights)
The civil capacity of a legal person and the civil capacity are generated from the time of the establishment of a legal person to the time when the legal person terminates . 3 [Company and Shareholders' Responsibilities]
The company is a corporate legal person, with independent legal person property and enjoys legal person property rights. The company shall be liable for the company's debts with its entire property. Shareholders of
Co., Ltd. shall be liable to the company to the limit of the amount of capital they subscribed; shareholders of joint-stock companies shall be liable to the company to the limit of the amount of shares they subscribed.
63 [ One-person company debt] If the shareholders of
One-person limited liability company cannot prove that the company's property is independent of the shareholder's own property, they shall bear joint and several liability for the company's debts. 60 (Liability assumes)
The legal person independently bears civil liability with all its property. 13 [Legal Representative]
The legal representative of the company shall be the chairman, executive director or manager in accordance with the provisions of the company's articles of association, and shall be registered in accordance with the law. If the company’s legal representative changes, the change registration shall be handled. 61 (Legal Representative)
In accordance with the provisions of the law or the articles of association of the legal person, the person in charge of the legal person who engages in civil activities is the legal representative of the legal person.
The legal consequences of civil activities engaged in by the legal representative in the name of the legal person shall be borne by the legal person.
The articles of association of the legal person or the legal person authority shall not counter the legal representative .
62 (Legal representative's responsibility for the duties)
If the legal representative causes damage to others due to the performance of his duties, the legal person shall bear civil liability.
After a legal person assumes civil liability, he or she may seek compensation from the legal representative who is at fault in in accordance with the provisions of the law or the articles of association of the legal person. 10 [Company Address]
The company takes its main office as its domicile. 63 (Door of the Legal Person)
The legal person takes the location of its main office as its domicile. If a legal person registration is required according to law, the location of the main office shall be registered as the residence. 7 Articles 3 [Business License Registration Change]
If the matters recorded in the company's business license change, the company shall handle the change registration in accordance with the law, and the company registration authority shall renew the business license.
179 [Company Change Registration]
If a company merges or splits and the registration matters change, it shall apply for change registration to the company registration authority in accordance with the law; if the company is dissolved, it shall apply for company cancellation registration in accordance with the law; if a new company is established, it shall apply for company establishment registration in accordance with the law.
The company shall apply for change registration to the company registration authority in accordance with the law. 64 (change registration)
If the registration matters of the legal person change during the existence of the existence of the legal person, they shall apply for change of registration to the registration authority in accordance with the law.
65 (registration is inconsistent)
If the actual situation of a legal person is inconsistent with the registered matters, it shall not be opposed to a bona fide counterparty. 6 Articles 3 [Registration Inquiry]
The public can apply to the company registration authority to inquire about company registration matters, and the company registration authority shall provide inquiry services. 66 (Registration Information Disclosure)
Registration authority shall promptly publicize the relevant information of legal person registration in accordance with the law. 174 [Mergeable Claims and Debts]
When a company merges, the claims and debts of the merging parties shall be inherited by the surviving company after the merger or the newly established company.
176 [Debt before separation]
The company after separation shall bear joint and several liability for the debts before separation. However, this does not apply to any written agreement reached between the company and its creditors regarding debt repayment before the separation. 67 (merger and division)
If a legal person merges, its rights and obligations shall be enjoyed and assumed by the merged legal person.
If a legal person is separated, the rights and obligations of the legal person after separation shall enjoy joint and several rights and bear joint and several liabilities, unless otherwise agreed by the creditor and the debtor.
68 (Termination of the legal person)
If one of the following reasons and the liquidation and cancellation registration are completed in accordance with the law, the legal person shall be terminated:
(I) The legal person is dissolved;
(II) The legal person is declared bankrupt;
(I) Other reasons stipulated by law.
If the legal person is terminated and the laws and administrative regulations require approval from the relevant authorities, the provisions shall be followed. 180 [Reasons for dissolution of the company]
Company is dissolved due to the following reasons:
(I) The business term stipulated in the company's articles of association expires or other reasons for dissolution stipulated in the company's articles of association occur;
(II) The shareholders' meeting or the shareholders' meeting resolves to dissolve;
(III) The company needs to be dissolved due to merger or division;
(IV) The business license is revoked, ordered to be closed or revoked in accordance with the law;
(V) The people's court dissolves it in accordance with the provisions of Article 182 of this Law.
182 [Request for the dissolution of the court]
The company's business management has serious difficulties, and its continued existence will cause significant losses to the interests of shareholders. If it cannot be resolved through other channels, shareholders holding more than 10% of the voting rights of all shareholders of the company may request the People's Court to dissolve the company. 69 (Dissolution of a legal person)
If any of the following circumstances occurs, the legal person shall be dissolved:
(I) The expiration of the period of existence stipulated in the articles of association of the legal person or other reasons for dissolution stipulated in the articles of association of the legal person occurs;
(II) The legal person's authority resolves to dissolve;
(III) The need to dissolve due to merger or division of the legal person;
(IV) The legal person is revoked in accordance with the law, and is ordered to close or revoked;
(V) Other circumstances stipulated by law. 183 [ liquidation group composition]
If a company is dissolved due to the provisions of Article 180, paragraph (1), paragraph (2), paragraph (4) and paragraph (5) of this Law, it shall establish a liquidation group within 15 days from the date of the occurrence of the reason for dissolution and start liquidation. The liquidation group of a limited liability company is composed of shareholders, and the liquidation group of a joint-stock company is composed of persons determined by the directors or the general meeting of shareholders. If a liquidation group is not established for liquidation within the deadline, the creditor may apply to the people's court to designate relevant personnel to form a liquidation group for liquidation. The people's court shall accept the application and organize a liquidation group to conduct liquidation in a timely manner.
189 [Member obligations and responsibilities]
Members of the liquidation group shall be loyal to their duties and perform liquidation obligations in accordance with the law.
Members of the liquidation group shall not use their powers to accept bribes or other illegal income, nor shall they embezzle company property.
If a member of the liquidation group causes losses to the company or creditors due to intentional or gross negligence, he shall bear the liability for compensation. 70 (Litigation of Legal Person)
If a legal person is dissolved, except for merger or division, the liquidation obligor shall form a liquidation group for liquidation in a timely manner.
The directors, directors and other executive bodies of the legal person are the liquidation obligor . If otherwise provided by laws and administrative regulations, they shall be in accordance with such provisions.
If the liquidation obligor fails to perform the liquidation obligation in a timely manner and causes damage, he shall bear civil liability; the competent authority of or interested person may apply to the people's court to designate relevant personnel to form a liquidation group for liquidation. 184 [Power of Liquidation Group]
The liquidation group exercises the following powers during the liquidation period:
(I) Liquidate the company's property and prepare the balance sheet and property list respectively;
(II) Notify and announce creditors;
(III) Handle the company's unsettled business related to liquidation;
(IV) Pay off the taxes owed and the taxes generated during the liquidation process;
(VII) Clear the claims and debts;
(VI) Handle the remaining property after the company pays off its debts;
(VII) Participate in civil litigation activities on behalf of the company.
186 [Liquidation Procedure]
After the liquidation group has cleared the company's assets, prepared the balance sheet and property list, it shall formulate a liquidation plan and report it to the shareholders' meeting, shareholders' meeting or the people's court for confirmation.
The company's property will be distributed according to the proportion of shareholders' capital contributions, and the proportion of shareholders' shares shall be distributed according to the proportion of shareholders' shares. The shares shall be distributed according to the proportion of shares held by shareholders.
During the liquidation period, the company continues to exist, but shall not carry out business activities unrelated to the liquidation. The company's property shall not be distributed to shareholders before it is liquidated in accordance with the provisions of the preceding paragraph. 71 (Liquidation Law applies)
The liquidation procedures and powers of the liquidation group of the legal person shall be in accordance with the provisions of relevant laws; if there are no provisions, the relevant provisions of the Company Law shall be subject to the application. 188 [Revoked after liquidation]
After the liquidation of the company is completed, the liquidation group shall prepare a liquidation report and submit it to the shareholders' meeting, shareholders' meeting or the people's court for confirmation, and submit it to the company registration authority to apply for cancellation of the company registration and announce the termination of the company. 72 (legal person during liquidation)
The legal person continues to exist during liquidation, but shall not engage in activities unrelated to liquidation.
The remaining property after the liquidation of a legal person shall be handled in accordance with the provisions of the articles of association of the legal person or the resolutions of the legal person's authority. If otherwise provided by law, it shall be in accordance with such provisions. When the liquidation of
is completed and the legal person is cancelled, the legal person shall be terminated; if the legal person does not need to register according to law, the legal person shall be terminated at the end of liquidation. 190 [Company Bankruptcy]
If a company is declared bankrupt in accordance with the law, bankruptcy liquidation shall be carried out in accordance with the relevant laws on corporate bankruptcy. 73 (Bankruptcy Liquidation)
If a legal person is declared bankrupt, the legal person shall be terminated when the bankruptcy liquidation is carried out in accordance with the law and the legal person is cancelled. 14 items 1 [Branch]
Company can set up a branch. When establishing a branch, you must apply for registration from the company registration authority and obtain a business license. The branch does not have legal person status and its civil liability shall be borne by the company. 74 (Legal Person Branch)
Legal Person may establish branches in accordance with the law. If laws and administrative regulations stipulate that branches should register, they shall be in accordance with such provisions.
branch engages in civil activities in its own name, and the civil liability arising from the legal person shall bear; it may also be borne first with the property managed by the branch. If it is not sufficient, the legal person shall bear it.
75 (the legal person in establishment)
The legal consequences of the civil activities engaged in by the establishment legal person shall be borne by the legal person; if the legal person does not establish , the legal consequences shall be borne by the founder. If the establishment person is more than two persons, he shall enjoy joint and several debts and bear joint and several debts.
The establishment person is the civil liability arising from the establishment of the legal person engaging in civil activities under his own name . The third party has the right to choose to request the legal person or the founder to bear .
Section 2 Profitable Legal Person 2 [Adjustment Object]
The company referred to in this Law refers to a limited liability company and joint-stock company established in China in accordance with this Law.
3 Article 1 [Company Definition]
Company is a corporate legal person, has independent legal person property, and enjoys legal person property rights. The company shall be liable for the company's debts with its entire property. 76 (for-profit legal person concept)
is a legal person established for the purpose of obtaining profits and distributing them to shareholders and other investors. It is a profit-making legal person .
for-profit legal persons include Co., Ltd. , Co., Ltd. and other corporate legal persons. Article 36, Paragraph 1 [Company Registration]
To establish a company, you shall apply to the company registration authority for establishment registration in accordance with the law. If the establishment conditions stipulated in this Law are met, the company registration authority shall register as a limited liability company or a joint stock company respectively; if the establishment conditions stipulated in this Law are not met, the company shall not be registered as a limited liability company or a joint stock company.
29 [Setting Up Registration]
After shareholders recognize the capital contribution stipulated in the company's articles of association, representatives designated by all shareholders or agents jointly entrusted by them submit the company registration application, company articles of association and other documents to the company registration authority to apply for establishment registration.
59 [One-person company registration]
One-person limited liability company shall indicate the sole proprietorship of natural person or sole proprietorship of legal person in the company registration and state it in the company's business license. 77 (Registered and established)
Profit-making legal person is established by law. Article 37 of html [Business License]
A company established in accordance with the law shall be issued to the company's business license by the company registration authority. The issuance date of the company's business license is the date of the company's establishment.
The company's business license shall state the company's name, address, registered capital, business scope, name of the legal representative, etc. 78 (Business License)
Profit-making legal person established in accordance with the law shall be issued to the for-profit-making legal person's business license by the registration authority. The date of issuance of the business license is the date of establishment of the for-profit legal person. 11 [Company Articles of Association]
The company must be formulated in accordance with the law. The company's articles of association are binding on the company, shareholders, directors, supervisors and senior management.
60 [One-person company articles of association]
One-person limited liability company articles of association are formulated by shareholders. 79 (Profit-for-Profit-Legal Person Articles of Association)
The establishment of a profit-for-profit-for-law person shall formulate the legal person’s articles of association in accordance with the law. 36 [Shareholders' Meeting]
Co., Ltd. Shareholders' Meeting is composed of all shareholders. The shareholders' meeting is the company's authority and exercises its powers in accordance with this Law.
37 [Power of Shareholders]
Shareholders' meeting exercises the following powers:
(I) decides the company's business policy and investment plan ;
(II) elects and replaces directors and supervisors who are not employee representatives, and decides on the remuneration of directors and supervisors ;
(III) reviews and approves the report of the board of directors;
(IV) reviews and approves the report of the supervisory board or supervisor;
(IV) reviews and approves the report of the supervisory board or supervisor;
( 5) Review and approve the company's annual financial budget plan and final accounts plan;
(VI) Review and approve the company's profit distribution plan and loss compensation plan;
(VIII) Make resolutions on the increase or decrease of the company's registered capital;
(VIII) Make resolutions on the issuance of corporate bonds;
(Nine) Make resolutions on the merger, division, dissolution, liquidation or change of the company's form;
(10) amends the company's articles of association ;
(11) Other powers stipulated in the company's articles of association.
If the shareholders unanimously agree to the matters listed in the preceding paragraph in writing, they may make a decision directly without convening a shareholders' meeting, and all shareholders shall sign and seal the decision document.
98 [Shareholders' Meeting]
Co., Ltd.'s shareholders' meeting consists of all shareholders. The shareholders' meeting is the company's authority and exercises its powers in accordance with this Law.
99 [Power of Shareholders' Meeting]
Article 37, paragraph 1 of this Law regarding the powers of shareholders' meetings of a limited liability company shall apply to the shareholders' meetings of a joint-stock company. 80 (rights agency)
Profit legal person shall establish authority .
The power organ exercises to modify the articles of association of the legal person, elect or replace the members of the executive body, supervisory body, and other powers stipulated in the articles of association of the legal person. 46 [Power of Board of Directors]
The board of directors is responsible to the shareholders' meeting and exercises the following powers:
(I) convene a shareholders' meeting and report to the shareholders' meeting;
(II) implement the resolutions of the shareholders' meeting;
(III) decide on the company's business plan and investment plan;
(IV) formulate the company's annual financial budget plan and final accounts plan;
(V) formulate the company's profit distribution plan and loss compensation plan;
(V) formulate the company's profit distribution plan and loss compensation plan;
(V) system To establish plans for the company to increase or decrease its registered capital and issue corporate bonds;
(7) To formulate plans for the company to merge, split, dissolve or change the company form;
(8) To determine the establishment of the company's internal management organization;
(9) To determine the appointment or dismissal of the company's manager and its remuneration matters, and to decide on the appointment or dismissal of the company's deputy manager, financial director and its remuneration matters based on the nomination of the manager;
(10) To formulate the company's basic management system;
(11) Other powers stipulated in the company's articles of association.
50 [Executive Director]
A limited liability company with a small number of shareholders or a small scale may have an executive director without a board of directors. The executive director may also serve as the company manager.
The powers of the executive director are stipulated in the company's articles of association.
108 Article 4 [Power of the Board of Directors of a Joint Stock Co., Ltd.]
Article 46 of this Law regarding the powers of the Board of Directors of a Limited Liability Company shall apply to the Board of Directors of a Joint Stock Co., Ltd. 81 (executive agency)
Profit legal person shall establish execution agency .
The executive body exercises to convene a meeting of the authority, decide on the business plan and investment plan of the legal person, decide on the establishment of the internal management organization of the legal person, and other powers stipulated in the articles of association of the legal person. If the executive body of
is board of directors or executive director , the chairman, executive director or manager shall serve as the legal representative in accordance with the provisions of the legal person's articles of association; if there is no board of directors or executive director, the main person in charge stipulated in the articles of association of the legal person shall be his executive body and legal representative. 53 [Power of Supervisory Board or Supervisor 1] The supervisory board of supervisors and companies that do not have supervisory boards exercise the following powers:
(I) Check the company's finances;
(II) Supervise the performance of the company's duties by directors and senior management personnel, and make suggestions for removal of directors and senior management personnel who violate laws, administrative regulations, company articles of association or shareholders' meeting resolutions;
(I) The behavior of directors and senior management personnel harms the company's When interests are concerned, directors and senior management personnel are required to correct them;
(IV) propose to convene an extraordinary shareholders' meeting, and convene and preside over the shareholders' meeting when the board of directors fails to perform its duties of convening and preside over the shareholders' meeting as stipulated in this Law;
(V) submit proposals to the shareholders' meeting;
(VI) file a lawsuit against directors and senior management personnel in accordance with the provisions of Article 151 of this Law;
(VII) Other powers stipulated in the company's articles of association.
54 [Power 2 of the Supervisory Board or Supervisor Powers]
Supervisors may attend the board of directors meeting and raise inquiries or suggestions on matters resolved by the board of directors.
The supervisory board of supervisors or companies that do not have a supervisory board can conduct an investigation if they find that the company's business is abnormal; if necessary, they can hire accounting firm and others to assist them in their work, and the company shall bear the expenses.
118 Article 1 [Power of the Supervisory Board of Co., Ltd. ]
Articles 53 and 54 of this Law regarding the powers of the Supervisory Board of a Limited Liability Company shall apply to the Supervisory Board of a Joint Stock Company.82 (supervisory agency)
If a profit-making legal person has a supervisory board or supervisory agency, the supervisory agency shall exercise the acts of inspecting the financial affairs of the legal person, supervising the performance of the duties of the executive agency members and senior management personnel, as well as other powers stipulated in the articles of association of the legal person. 20 [Prohibited behavior by shareholders]
Company shareholders shall abide by laws, administrative regulations and the company's articles of association, exercise shareholder rights in accordance with the law, and shall not abuse shareholder rights to damage the interests of the company or other shareholders; shall not abuse the independent legal status of the company and the limited liability of shareholders to damage the interests of the company's creditors.
If a company shareholder abuses shareholder rights to cause losses to the company or other shareholders, he shall bear the liability for compensation in accordance with the law.
If a company shareholder abuses the company's independent legal status and shareholder limited liability to evade debts and seriously damages the interests of the company's creditors, he shall bear joint and several liability for the company's debts. 83 (rights shall not be abused and the legal person's personality shall be denied)
The investor of a profit-making legal person shall not abuse the investor's rights to damage the interests of the legal person or other investors. If the abuse of the rights of the investor causes losses to the legal person or other investor, the civil liability shall be borne in accordance with the law.
The investor of a for-profit legal person shall not abuse the independent status of the legal person and the limited liability of the investor to damage the interests of the creditors of the legal person. If an abuse of the independent status of a legal person and the limited liability of the investor, evade debts, and seriously damage the interests of the creditors of the legal person, he shall bear joint and several liability for the legal person's debts. 21 [Related Party Transactions are prohibited]
The controlling shareholder, actual controller, director, supervisor, and senior management of the company shall not use their affiliated relationship to harm the interests of the company.
shall bear compensation liability if it violates the provisions of the preceding paragraph and causes losses to the company.
148 [Prohibited by directors and senior executives]
Directors and senior management personnel shall not engage in the following behaviors:
(I) Misappropriate company funds;
(II) Store company funds in their personal name or in other personal name;
(I) Violate the provisions of the company's articles of association and lend company funds to others or provide guarantees with company property without the consent of the shareholders' meeting, shareholders' meeting or the board of directors;
(IV) Conclude a contract or conduct transactions with the company in violation of the provisions of the company's articles of association or without the consent of the shareholders' meeting or the general meeting of shareholders;
(V) Use your position to seek business opportunities belonging to yourself or others for yourself or others, and operate business similar to the company you are in for others;
(VI) Accepting commissions for transactions between others and the company you are in.
(VIII) Disclosing company secrets without authorization;
(VIII) Other acts that violate the obligation of loyalty to the company.
The income obtained by directors and senior management personnel in violation of the provisions of the preceding paragraph shall belong to the company.
149 [Compensation for damages from directors, supervisors, and senior executives]
If directors, supervisors, and senior management personnel violate the provisions of laws, administrative regulations or the company's articles of association when performing their duties in the company and cause losses to the company, they shall bear the liability for compensation.
216 [Related terms meaning]
The following terms in this law are:
(I) Senior management personnel refer to the company's manager, deputy manager, financial director, secretary of the board of directors of a listed company and other personnel stipulated in the company's articles of association.
(II) The controlling shareholder refers to a shareholder whose capital contribution accounts for more than 50% of the total capital of a limited liability company or whose shares hold accounts for more than 50% of the total capital of a joint-stock company; a shareholder whose capital contribution or shareholding ratio is less than 50%, but whose voting rights based on the capital contribution or the shares held are sufficient to have a significant impact on the resolutions of the shareholders' meeting and the general meeting of shareholders.
(III) The actual controller refers to a person who is not a shareholder of the company but can actually control the company's behavior through investment relations, agreements or other arrangements.
(IV) Affiliated relationship refers to the relationship between the company's controlling shareholder, actual controller, directors, supervisors, senior management personnel and the enterprises directly or indirectly controlled by them, as well as other relationships that may lead to the transfer of company's interests.However, state-controlled enterprises are not only related because they are both state-controlled. 84 (Related Party Transactions are prohibited)
The controlling investors, actual controllers, directors, supervisors, and senior management of a for-profit legal person shall not use their affiliated relationship to harm the interests of the legal person. If you use the affiliated relationship to cause losses to the legal person, you shall bear the liability for compensation. 22 [Resolution is invalid or revoked]
The resolution content of the company's shareholders' meeting or shareholders' meeting or board of directors violates laws and administrative regulations is invalid .
If the meeting convening procedures and voting methods of the shareholders' meeting or the board of directors violate the laws, administrative regulations or the company's articles of association, or the content of the resolution violates the company's articles of association, the shareholders may request the people's court to revoke within 60 days from the date of the resolution.
If a shareholder filed a lawsuit in accordance with the provisions of the preceding paragraph, the people's court may require the shareholders to provide corresponding guarantees at the request of the company.
If a company has completed the change registration according to the resolution of the shareholders' meeting, the general meeting of shareholders or the board of directors, after the people's court declares the resolution invalid or revokes the resolution, the company shall apply to the company registration authority to revoke the change registration. 85 (resolution defect)
If the meeting convening procedures and voting methods of the power organ and executive body of a for-profit legal person make a resolution violate laws, administrative regulations, and the articles of association of the legal person, or if the content of the resolution violates legal person's articles of association, the investor of the for-profit legal person may request the people's court to revoke the resolution, but the civil legal relationship formed by the for-profit legal person and the good-faith counterparty based on the resolution will not be affected. Article 35 Article 1 [Company Obligation]
Company is engaged in business activities and must abide by laws and administrative regulations, abide by social ethics and business ethics, be honest and trustworthy, accept supervision from the government and the public, and assume social responsibilities. 86 (Social Responsibility)
Profit-making legal persons shall abide by business ethics, maintain transaction security, accept supervision from the government and society, and assume social responsibility.
Source | Approaching the Civil Code Author | Sun Zheng
