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Decision of the State Council on Revising of the People's Republic of China on Administration of Registration of Companies

Issuing Date: 2008-01-10   Author:黄巍   Source: State Council   Views:
Abstract:

Decision of the State Council on Revising the Regulations of

the People’S Republic of China on Administration of

Registration of Companies

Order of the State Council No451

The Decision of the State Council on Revising the Regulations of the People's Republic of China on Administration of Registration of Companies is hereby promulgated and shall go into effect as of January 12006

Premier Wen Jiabao

December 182005

 

The State Council has decided to make the following revisions to the Regulations of the People7S Republic of China on Administration of Registration of Companies

    1One paragraph is added to Article 2 as paragraph 2The applicant shall be responsible for the authenticity of the application documents and materials when applying for registration of company

    2Article 6 is revised as follows”The State Administration for Industry and Commerce is responsible for the registration of the following companies

(1)A companyfor which the state—owned assets supervision and administration institution of the State Council performs the functions and duties of a capital contributor,as well as a companywhich is established with the investment of the first—mentioned company that holds more than 50shares therein

(2)A foreign-funded company

(3)A company which shall be registered by the State Administration for Industry and ommerce in accordance with the relevant lawsadministrative Regulationsor decisions of the State Counciland

(4)Other companies that should be registered by the State Administration for Industry and Commerce in accordance with the relevant provisions.

3Article 7 is revised as follows”The administrations for industry and commerce at the level of a province,autonomous region or municipality directly under the Central Govemment are responsible for the registration of the following companies in arells under their respective jurisdiction

(1)A companyfor which the state—owned assets supervision and administration institution of the people"s overnment of a province, autonomous region,or municipality directly under the Central Government performs the functions and duties of a capital contributor,as well as a companywhich is established with the investment of the first-mentioned company that holds more than 50shares therein

 (2)A company established with the investment of a natural person which shall be registered by the administration for industry and commerce of a provinceautonomous regionor municipality directly under the Central Government

 (3)A company which shall be registered by the administration for industry and commerce of a provinceautonomous regionor municipality directly under the Central Government in accordance with the relevant lawsadministrative Regulationsand decisions of the State Counciland

(4)Other company of which the registration is entrusted by the State Administration for Industry and Commeree

4Article 8 is revised as follows"The administration for industry and commerce of a city(region)with subordinated districts or a countythe sub—administration for industry and commerce of the municipality directly under the Central Govemmentthe regional sub—administration for industry and commerce of a city with subordinated districts are responsible for the registration of the following companies in areas under their respecfive jurisdiction

(1)Companies other than those as prescribed in Articles 6 and 7 of the present Regulationsand

(2)Companies of which the registration is entmsted by the State  Administration for Industry and  Commerce  or the  administration for industry and commerce of a province autonomous regionor municipality directly under the Central Government

    The specific jurisdiction of registration as prescribed in the preceding paragraph shall be prescribed by the administration for industry and commerce of a provinceautonomous regionor municipality directly under the Central GovemmentHowever-the administration for industry and commerce of a city(region) with subordinated districts shall be responsible for registration of joint stock companies.”

5One article is added as Article 14which reads”The form of shareholders’capital contribution shall comply with the provisions of Article 27 of the Company Law

  For capital contribution in the form of properties other than currencyin—kindintellectual property or land use rightthe measures for registration shall be prescribed by the State Administration for Industry and Commerce in conjunction with the relerant departments under the State Council

  No shareholder may make any capital contribution based on the appraised value of laborcreditworthinessname of a natural persongoodwillfranchise or any property to which any guaranty has been set!t

6 One article is added as Article 1 5which reads”The business scope of a company shall be stipulated by the articles of association thereof and shall be subject to registration according to law.”

For the terminology applied in the business scope of a companythe standards for industrial categories of the national economy shall be referred to.”

7One article is added as Article 16”Companies are classifted into limited liability companies and companies limited by shares

  For one—person limited liability companythe sole-investor nature of the natural person or legal person shall be indicated in the registration documents of the company as well as in its business license.

8Article 17 is change to be Article 20to paragraph 2 of which an item is added as item(5)”Where the initial capital contributions made by a shareholder is non-monetary propertythe certification documents certifying that the formalities for transferring the property thereof have been gone through shall be submitted when the company go through the formalities for the registration of establishment.”

And one paragraph shall be added as paragraph 3which reads“The initial capital contributions made by a shareholder of a limited liability company with foreign investment shall conform to the provisions of relevant laws and administrative Regulationsand the remaining part shall be contributed in full amount within 2 years as of the establishment of the companyIn particular,an

investment company may contribute its capital in full amount within 5 years?

9Article 18 is change to be Article 21to which one paragraph is added as paragraph 3which reads”As to a company limited by shares that has been established by the offer methodit shall submit the minutes of the founding meeting as wellAs to any company limited by shares that has been established by the offer method issues sharesthe relevant approval documentsm issued by the state-owned assets supervision and administration institution of the State Council shaU be submitted as well

One paragraph shall be inserted as paragraph 4”Where the establishment of a company limited by shares shall be subject to approval according to the provisions of lawsadministrative Regulationsor decisions of the State Councilthe relevant approval documents shall be submitted as well

10 Article 24 is change to be Article 27to which one paragraph is added as paragraph 3which reads”Where the change of registered items shall be subject to approval before registration according to the provisions of laws  administrative Regulationsor decisions of the State Councilthe relevant approval documents shall be submitted to the company registration authority as well.

11Article 28 is change to be Article 31 and paragraph 2 thereof is revised to read”Where a company increases its registerod capitalthe increased amount contributed by the shareholders of a limited liability company and the new shares as subscribed by the shareholders of a company limited by shares shall be governed by the relevant provisions of the Company Law on the capital contributions for the establishment of a limited liability company and the subscription of shares for the establishment of a company limited by shares Where a company limited by shares increases its registered capital by means of public offer of new shares or where a listed company increases its registered capital by means of non-public offer of new sharesthe relevant approval documents issued by the securities regulator of the State Council shall be submitted as well.”

One paragraph is added as paragraph 3 which reads”Where the statutory common reserve fund of a company is converted into its registered capitalit shall be indicated in the asset verification certificate that the surplus of the statutory common reserve fund of the company may not be less than 25of the registered capital thereof before the conversion

One paragraph shall be inserted as paragraph 5”The registered capital of a company after capital reduction may not be less than the prescribed minimum amount.”

12One article iS added as Article 32”Where a company changes its paid-up capitalit shall provide the asset verification certificafion issued by an asset verification institution that has been lawfully established and capital contributions shall be made according to the time and form of capital contribution as indicated in the articles of association of the company  A company shall within 30 days as of the date when contribution of capital or shares are made in full amount  apply for changing its registrationl'

13Article 29 is changed to be Article 33to which one paragraph is added as paragraph 2which reads”Where the relevant license or any other approval document with respect to all item in the business scope of a company subject to the approval according to relevant lawsadministrative Regulationsor decisions of the State Councilis revoked or withdrawnor expiresthe company shall in accordance with the provisions of Chapter VI of the present Regulafionsapply for the change of its registration or handle the formalities for deregistrafion within 30 days as of the date of withdrawing or revocation or expiration of the license or approval document

14Article 31 is changed to be Article 35to which one paragraph is added as paragraph 2which reads”Upon the demise of a natural—pemon shareholder of a limited liability companythe qualification of a shareholder shau be succeeded to his legitimate heir and the company shaU apply for change of its regis~ation in accordance with the pmvisions of the preceding paragraph

15One article is added as Article 36”Where the change of registered items of a company relates to the change of registered items of its branchthe company shall apply for the change of registration for its branch within 30 days from the day when the registration of the company is changed.”

16One article is added as Article 41”A company shall submit the following documents when applying to the company registration authority for revocation or change of its registration according to the provisions of Article 22 of the Company Law

(1)Letter of Application signed by the legal representative thereof

(2)Written judgment issued by the people's court

17One article is added a8 Article 42”Where a company is required to undergo liquidation in the event of dissolution according to lawa liquidation group shallwithin 10 days as of formation of the groupfile the list of members and pemon—in—charge of the group with the company registration authority for record.”

18Article 37 is changed to be Article 44to which one paragraph is added as paragraph 2which reads”If a solely state—owned company applies for cancellation of its registrationit shall submit the decision of the state-owned assets supervision and administration institution in additionIn particularfor the key solely state-owned companies as determined by the State Councilthe approval documents of the people's government at the same level shall be submitted as well

19Article 40 iS deleted

20Article 42 is changed to be Article 48to paragraph 2 of which one item is added as item(4)"The documents of tenure of oMce and identity certificate of the person-in-charge of the branch.”

One paragraph shall be inserted as paragraph 3”Where it is prescribed by lawsadministrative Regulationsor decisions of the State Council that the establishment of a branch shall be subject to approval or in case any item within the business scope of a branch shall be subject to approval before registration according to relevant lawsadministrailve Regulationsor decisions of the State Councilthe relevant approval documents shall be submitted as well

One paragraph is added as paragraph 4which reads”Where the company registration authority approves the registration of a branchit shall issue a Business LicenseThe company shallwithin 30 days from the day when its branch is registeredfile with the company registration authority for record upon the stren~h of the Business License of its branch

21One article is added as Article 51“To apply for the registration of a company or branchthe applicant may submit its application to the company registration authority in person or may file an application by means of lettertelegraphtelexfacsimileelectronic data exchange or email

“Where any application is filed by such means as telegraphtelexfacsimileelectronic data exchange or emailthe applicant’s contact method and address shall be provided.

22One article is added as Article 52which reads”The company registration authority shall decide whether or not to accept an application according to the following circumstances

(1)Where the application documents and materials are conplete and in the statutory form  or the applicant has submitted all the application documents and materials supplemented and corrected according to the requirements of the company registration authoritythe company registration authority shall make the decision on accepting the application

(2)Where the application documents and materials are conplete and in the statutory form but the company registration authority considers that theplication documents and materials shall be subject to verificationthe company registration authority shall make the decision on accepting the application and shallat the same timeinform in writing the applicant of the items subject to verification as well as the leOson therefor and time limit thereof

(3)Where the application documents and materials contain mistakes that may be corrected on the spotthe applicant shall be allowed to correct them on the spotaffix its signature or seal to the correction and indicate the date of correctionIf the cotrected application documents and materials are confirmed to be complete and in the statutory formthe company registration authority shall make the decision on accepting the application

(4)Where the application documents and materials are in·complete or not in the statutory formthe company registration authority shallon the spot or within 5 daysinformat a timethe applicant of all the contents that need to supplemented or correctedIf the applicant is informed on the spotthe company registration authority shall retum the application documents and materials to the applicantif the applicant is informed within 5 daysthe company registration authority shall accept the application documents and materials and shall issue a receipt of the application documents and materialsIn case the company registration authority fails to inform the relevant applicantit shall be deemed that it has accepted the application as of the date of receipt of the application documents and materials

 (5)In case any item fails to fall within the scope of compmly registration or the company registration authority's jurisdicfion,it shall immediately make the decision on refusal of the app~cation and inform the applicant to apPlY to the relevant competent administrative organ

As to an application that is filed by such means as lettertelegraphtelexfacsimileelectronic data exchange or emailthe company registration authority shallwithin 5 days as of the date of receipt of the application documents and materialsdecide whether or not to accept the application

23One article is added as Article 53which reads”Unless an approval decision is made according to item(1)paragraph 1 of Article 54 of the present Regulationsthe company registration anthority shallwhen it has decided to accept an applicationissue a Notice on AcceptanceIn the case of r~ectionit shall issue a Notice on Rejectiongive explanations for the rejecfionand inform the applicant of the rishts to apply for an administrative reconsideration or to lodge an administrative litigation according to law.”

24One article is added as Article 54which reads”The company registration authority shallafter deciding to accept an applicationdecide whether or not to approve a company's registration within the prescribed time limit according to different circumstances

(1)Where an application submitted by an applicant in person to the company registration authority is acceptedit shall decide whether or not to approve the registration on the spot

(2)Where an application filed by an applicant by means of letter is accepted  it shall decide whether to approve the registrafion or not within 15 days as of the date of acceptance

(3)Where an application as filed by an applicant by such means as telegraphtelexfacsimileelectronic data exchange or e-mailan applicant shallwithin 1 5 days as of the date of receipt of the Notice on Acceptancesubmit the original of the applicationdocuments and materials in compliance with the statutory form and in consistency with the contents of the telegraphtelexfacsimileelectronic data exchange or emailIf the original of application documents and materials is submitted to the company registration authority by the applicant in personthe company registration authority shall decide whether or not to approve the registration on the spotif the original ofplieation documents and materials is submitted by means of letter,it shall decide whether or not to approve the registration within 15 days as of date of acceptance

(4)Where the company registration authority does not receive the original of the relevant application documents and materials within 60 days from the day the Notice on Acceptance is sent outor the original of the application documents or materials are inconsistent with the application documents and materials as accepted by the company registration authoritythe company registration authority shall decide not to approve the registration

Where the company registration authority needs to verify the application documents and materialsit shall decide whether or not to approve the registration within 15 days a8 of date of acceptance.”

25One article is added as Article 55which reads”Where the company registration authority makes the decision on pre-approval of a company's nameit shall issue a Notice 0n Pre-approval of Enterprise NameWhere it decides to approve the registration of a companyit shall issue a Notice on Approval of Establishment Registration and inform the applicant to collect its business license within 10 days as of the day when the decision is madeWhere it decides to approve the change of registration of a companyit shall issue a Notice on Approval of Change of Company Registration and inform the applicant to renew its business license within 10 days as of decision

Where it decides to approve the cancellation of registration of a companyit shall issue a Notice on Approval of Cancellation of Company Registration,and revoke the relevant business license.Where the company registration authority decides not to grant pre—approval of a company’S name or not to approve the registration,it shall issue a Notice on Refusal of Enterprise Name or a Notice on Refusal of Company Registrationgive explanations for disapproval of registration and inform the relevant,applicant of the right to apply for an administrative reconsideration or to lodge an administrative litigation according to law.”

26.Article 46 is changed to be Article 56of which the paragraph 2 is revised as follows”When obtaining the Business License of Enterprise Legal-personthe fee of establishment registration shall be paid at 08of the total registered capitalWhere its registered capital exceeds 10 million Yuanthe fee for the part in excess of 10 million Yuan shall be paid at O4.Where its registered capital exceeds 0.1billion Yuan,no more fees shall be collected on the part

27Article 49 is changed to be Article 59 and revised as follows”In every year from March 1 to June 30the company registration authority conducts annual examination of companies

28Article 54 is changed to be Article 64of which paragraph 3 is revised a8 follows”Where the company registration authority decides to alter,cancel the registration or revoke its decision on alteration registrationif the relevant company refuses to submit or fails to submit its Business Hcensethe company registration authority shall announce the company's business license invalid

29.Article 63 iS changed to be Article 73to which one paragraph is added as paragraph 2which reads”Where a company fails to go through the formalities for record as required by the provisionsthe company registration authority shall order it to go through the formalities within a time limit  Failure by the company to do SO with in the time limitit shall be subject to a fine of no more than 30000 Yuan

30Article 64 is changed to be Article 74to which one paragraph is added as paragraph 2which reads”In the event of liquidationif the company conceals assetsmakes false records in its balance sheet or property checklist or fails to pay off its debts before distribution of its assetsit shall be ordered to remedy the situation by the company registration authority and subject to a fine of 1up to 10of the assets concealed by it or the asset distributed before clearing off its debts.,And the per~n-in-charge or persons directly liable shall be subject to a fine of no less than l0,000 Yuan but no more than 100000 Yuan

One paragraph is added as paragraph 3which l'Pads”Where a company engages in any business operation irrelevant to liquidation when undergoing liquidationthe company registration authority shall give it a warning and confiscate the relevant iUegal proceeds

31Article 65 is changed to be Article 75to which one paragraph is added as paragraph 2which leads-""Where an member of a liquidation group takes advantage of his power to practice favoritismseeks any illegal gains or usurps on the company's assetsit shall be ordered to hand back the company's assets by the company registration authority,and confiscated of the legal gains and may be subject to a fine of 1 time up to 5 times the iuegal proceeds

32Article 66 is deleted

33Article 67 iS deleted

34One article is added as Article 79”An institution responsible for asset assessmentasset verification or authentication which presents any false material,shall be confiscated of the illegal gains by the company registration authority and be subject to a fine of 1 time up to 5 times the illegal gainsThe relevant competent administrative department may order the said institution to stop its operation,revoke the qualification certificate of the persons directlv liable and the Business License of the said institution

“An institution responsible for asset assessmentasset verification or authentication which presents a report containing significant omissionsshall be ordered it to remedy the situations by tlle conpany registration authorityand it may also be subject to a fine of 1 time up to 5 times the illegal gains if the case is seriousThe relevant administrative department may order the said institution to stop its operationrevoke the qualification certificate of the persons directly liable and the Business License of the said institution

35Article 71 is deleted.

36One article is added as Article 83which reads:“A foreign company that violates the provisions of the Company Law by unlawfully establishing a branch within the territory of Chinashall be ordered it to remedy the situations or closed down by the eompany registration authorityand it may also be subject to a fine of no less than 50000 Yuan but no more tllan 200000 Yuan

37One article is added as Article 84which reads”Where a company takes advantage of its name to engage in any serious illegal conducts that may damage the state security or social and public interestits Business License shall be revoked

380ne article is added as Article 85which reads”Where any branch of a company violates the provisions of this Chapterthe provisions of this Chapter shall be applied thereto

390ne article is added as Article 86which reads”Where anyone violates the provisions of the present Regulations and a criminal offence is constitutedcriminal responsibility shall be investigated in accordance with the law'|

40Article 74 iS deleted

410ne article is added as Article 88which reads”Where its prescribed by any lawadministrative Regulationsor decision of the State  Council that the establishment of a company shall be repcIrted for approvalor where any item within the business scope of the company shall be subject to approval before registration in accordance with lawsadministrative Regulationsor decisions of the State Councilthe State Administration for Industry and Commerce shall compile and publicize the Catalogue of Administrative License before the Registration of Companies according to the relevant lawsadministrative Regulationsand decisions of the State Council

In additionthe order of articles and some wording shall be adjusted and revised accordingly

The present Decision shaU go into effect as of January 12006

The Regulations of the People’s Republic of China on Administration of Registration of Companies shall be revised according to the present Decision and promulgated anew.

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