Company'S Registered Capital Requirements

First, the definition of "registered capital" and "unregistered capital".

According to the twelfth provision of the regulations on the administration of registration of enterprise legal persons, "the registered capital is the amount of property granted by the state to the enterprise legal person or the amount of its own property.

If an enterprise is registered with a business entity, the amount of funds that it applies for registration is inconsistent with the actual funds, and shall be handled in accordance with the special provisions of the state. "

The thirty-first provision of the regulations on the administration of registration of enterprise legal persons stipulates: "the amount of registered capital is the monetary performance of the property operated by an enterprise as a legal person or the property owned by an enterprise as legal person.

Unless otherwise stipulated by the state, the registered capital of an enterprise shall be consistent with the actual funds. "

Accordingly, the author believes that the registered capital of an enterprise refers to the total amount of capital registered by an enterprise in the administration of industry and commerce, that is, the total amount of capital subscribed by investors.

The "unregistered capital" means that the registered capital of the enterprise is not consistent with the real capital, that is, the registered capital is insufficient.

Two, the establishment of units should be within the scope of the registration fund is not responsible for the relevant provisions of the responsibility.

1. The Supreme Court has replied to the reply No. [1994]4 on the civil liability of other enterprises that have been revoked or shut down after the establishment of enterprises. Article 1, second, stipulates: "other enterprises established by enterprises have already obtained the business license of enterprise legal persons. Their actual investment of their own funds, though not in conformity with the registered capital, reaches the amount stipulated in the seventh regulations or other regulations stipulated in the detailed rules for the implementation of the regulations on the registration of enterprise juridical persons, and has the conditions of an enterprise legal person. It should be recognized that it has the legal person qualification and independently bear civil liability for its property." (1) second.

If the enterprise is not able to pay off its debts if it is revoked or shut down, the establishment enterprise shall bear civil liability within the scope of the difference between the actual capital invested by the enterprise and the registered capital.

The third provision of Article 1 of the reply is: "although other enterprises run by enterprises have obtained their own business licenses, they have not invested their own funds, or their own funds can not reach the amount of seventh or other regulations stipulated in the detailed rules for the implementation of the regulations on the registration of enterprises as well as other regulations, and other conditions that do not possess the corporate juridical person. They shall be deemed to have no legal person qualification, and their civil liability shall be borne by the enterprise legal person who has set up the enterprise". "In the case of the enterprise, the enterprise's legal liability is not limited to the legal person," he said. "The civil liability of the other enterprises of the enterprise shall be assumed by the enterprise legal person who has set up the enterprise." he said, "the civil liability of the enterprise shall be borne by the enterprise legal person who started the enterprise."

2. The supreme court execution Office law stipulates that the unit of the executing party has insufficient registered capital for its start-up and is not responsible for any other form of registration of funds after its establishment, according to the letter No. [1995]274 concerning the establishment of the unit for the registration of the enterprise's registered capital.

3, the Supreme Court's reply to the reply No. [1997]2, "how to confirm the effectiveness of the economic contract signed by an enterprise legal person who has not reached the minimum amount prescribed by the registered capital", stipulates that: "the registered capital investment of an enterprise legal person has not reached the minimum stipulated in the regulations. When undertaking civil liability for foreign affairs, it shall be dealt with in accordance with the first third provisions of the reply No. [1994]4 of the court on the civil liability for the cancellation or closure of other enterprises," that is, the civil liability of the enterprise shall be borne by the enterprise legal person who has opened the enterprise.

4, the eightieth provision of the Supreme Court stipulates: "the executor has no property to pay off debts. If his start-up unit fails to register the funds invested in his start-up or withdraws his registered capital, he may decide to change or supplement his opening unit as the executor, and bear the responsibility for the application executor within the scope of the registered capital being untrue or running away from the registered capital."

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Three, the difference between "unregistered capital" and "false registered capital".

With regard to "false registration of capital", according to the 206th articles of the company law, the fifty-eighth regulations on the registration and management of enterprise legal persons and the 158th provision of the criminal law, the meaning of false registration of registered capital is the false registration documents used by the applicant company when registered or fraudulent means used to falsely report the registered capital, and the company registration authorities are deceived to obtain the company registration.

Those who falsified the registered capital shall be fined. If the circumstances are serious, the company's registration shall be cancelled. If a company constitutes a crime, it shall be investigated for criminal responsibility.

Therefore, the author believes that the "unregistered capital" and "false registration capital" are different concepts, and their legal consequences are different.

Four, the reasons and the focus of disputes in the practice of trial are inconsistent with the scope of the recognition and practice of the unregistered scope of the registered capital.

In the trial practice, the courts do not agree with each other about the unreal scope of the registered capital of the enterprises. The reason is that some courts believe that according to the letter of the Supreme Court's executive office on the determination of whether the establishment unit has registered the capital of the enterprise, if the registered unit of the executing party has insufficient registered capital for its start-up, the start-up unit shall not be liable for any other form of registration of the registered capital.

The letter clearly stipulates that a start-up unit can set up a registered capital after its establishment. Therefore, the registered capital supplemented by a start-up unit after its operation is a registered capital actually invested by the start-up unit.

In accordance with the provisions of the second paragraph of the first paragraph of the Supreme Court on the civil liability for revocation or closure of other enterprises established by the Supreme Court, the enterprise shall bear civil liability within the scope of the difference between the private capital invested by the enterprise and the registered capital.

Therefore, the scope of "unregistered capital" should be the difference between the registered capital and the registered capital that should be invested after the start-up of other units.

Some courts believe that according to the eightieth provision of the Supreme Court, the executor has no property to pay off debts. If the start-up unit fails to establish the registered capital for its start-up, the start-up unit shall bear the responsibility within the scope of the registered capital.

The article clearly stipulates that the start-up unit shall bear the responsibility within the unregistered capital invested in the "start-up" period. Therefore, the scope of "unregistered capital" should be the difference between the registered capital and the registered capital that should be invested when the start-up company starts other enterprises.

It also holds that the reply to the question of civil liability undertaken by other enterprises that have been cancelled or closed after the establishment of the enterprise is a letter made by the Supreme Court in March 30, 1994 on the issue of determining whether the establishment unit has registered the capital of the enterprise. It was made by the office of the Supreme Court in October 19, 1995, and it was contrary to the eightieth provision in the 11 regulations passed by the Supreme Court of the Supreme Court. In accordance with the applicable principle of the judicial interpretation, the latter should be applied.

Therefore, the focus of controversy on determining the unreal scope of registered capital lies in the fact that the amount of registered capital invested by the start-up unit is not the actual registered capital until the time of start-up, or the registered capital that has actually been put in place after the start-up. In fact, the opening unit should bear civil liability within the scope of the registered capital which is not invested in the start-up period, or assume civil liability within the scope of the registered capital which has been invested after the start-up.

Five, how to define the scope of "unregistered capital of enterprises".

According to the relevant regulations, when the registered capital of the start-up unit is not enough to invest in other enterprises, it may make up the registered capital after start-up, or the relevant departments shall order it to make up the registered capital.

The thirty-first provision of the detailed rules for the implementation of enterprise legal person stipulates that the registered capital of an enterprise should be consistent with the real capital, unless otherwise stipulated by the state.

Actually, when the enterprise's registered capital is insufficient, the administrative department for Industry and Commerce may order it to make up for it.

In the past, the Supreme Court had a summary of the conference on judicial work. It reiterated that when the enterprise undertakes insufficient investment in the registration of enterprises, it should be ordered to make up for it and the registered capital is not true. The start-up enterprise shall bear the responsibility within the scope of the registered capital.

In 1992, the Supreme Court also had a reply that the legal person status of a collective enterprise, which has been approved by the administrative authorities for Industry and Commerce and the legal person's license, should be affirmed.

The office of the Supreme People's Court Enforcement Act, by [1995]274, "on the determination of the establishment of units to register funds for enterprises registered whether the issue of the letter" actually refers to the court when handling cases found insufficient registered capital can be ordered to make up.

In the trial of a case, a court may classify a running unit as a defendant or third persons, and decide that he directly pays the creditor the difference of the registered capital.

In fact, in the process of execution, a start-up unit can be understood as more than one. If several enterprises jointly invest or engage in joint ventures or run limited liability companies, it can be understood that if these investors are short of investment, they can be handled in accordance with the start-up units, so that they can make up their respective registered capital and repay the debts of enterprises with full registered capital.

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In the case of a start-up unit, if the enterprise that has been established has indeed supplemented or filled up the registered capital, if the difference between the registered capital and the registered capital that the court still invested in setting up other enterprises is the scope of the registered capital is not true, it will appear: first, ignoring the objective fact that the start-up unit will supplement or supplement the registered capital after setting up other enterprises, which means that the registered capital that negates the supplement or supplement is not registered capital, which is not in conformity with the above provisions.

Two, the start-up unit will bear civil liability over the scope of the registered capital.

Suppose that a start-up unit starts other businesses with a registered capital of 1 million yuan, which has been invested in 1 million yuan at the time of start-up. The 1 million yuan has been regarded as a capital or civil liability for the operation of a start-up enterprise. Although the start-up unit has no longer bear civil liability for the registration of funds, it has actually undertaken civil liability for the start-up enterprise with its invested assets of 100 yuan. If the actual establishment of other enterprises has invested 400 thousand yuan in registered capital, the difference in the registered capital is 600 thousand yuan, but the start-up unit has added 400 thousand yuan after its operation. The 400 thousand yuan has been used as the capital of the start-up enterprise or the property that bears civil liability. At this time, the difference between the registered capital and the real capital has been reduced to 200 thousand yuan.

If the court still assumes responsibility for the establishment of a unit within the range of 600 thousand yuan of the registered capital when opening other enterprises, the start-up unit actually undertakes 400 thousand yuan invested in the start-up and 400 thousand yuan after the opening up, plus the court's determination that the balance of 600 thousand yuan is 1 million 400 thousand yuan, which exceeds the scope of the registered capital of 1 million yuan. Similarly, if the start-up unit starts other enterprises, it will invest 400 thousand yuan in registered capital and make up 600 thousand yuan after the start-up. At this time, the difference between the registered capital and the real capital is reduced to zero.

If the court still assumes responsibility for the establishment of a unit within the range of 600 thousand yuan of the registered capital when opening other enterprises, the start-up unit actually undertakes 400 thousand yuan invested in the start-up and 600 thousand yuan after the completion of the operation, plus the court's responsibility for determining the difference of 600 thousand yuan to 1 million 600 thousand yuan, which exceeds the scope of the registered capital of 1 million yuan.

In summary, the author believes that there are two kinds of "unregistered capital": one is the fact that the registered capital invested by the unit when it starts other enterprises is not true; the other is the fact that the registered capital of the start-up unit is actually not invested after starting other enterprises.

The scope of the "unregistered capital" should be the difference between the registered capital and the registered capital of the other entities.

The registered capital of a start-up unit to set up other enterprises actually includes the registered capital that is actually put into operation and the registered capital actually invested after the start-up. Only the difference between the registered capital invested by the start-up unit and the registered capital should be defined objectively and comprehensively.

The author believes that the Supreme Court's reply to [1994]4, "the reply to the question of civil liability to be revoked or shut down after the establishment of other enterprises," and the Supreme Court law are not inconsistent with the provisions of the eightieth provision of the Supreme Court's provisions of the Supreme Court on the issue of determining whether the establishment unit has registered the capital of the enterprise or not. It should be applied to the different circumstances of the "unregistered capital" of the [1995]274.

The eightieth provision of the provisions only provides for a case where the registered capital invested by a unit in the execution of the executed person is not true. It is not applicable to the registered capital when the executing unit starts the execution of the registered person. The provisions of this article shall be applied if the registered capital is not replenishment or after the establishment is opened, and the opening office shall bear the responsibility for the application executor within the scope of the registration fund being not set up when the executor is executed.

For the establishment of a unit to supplement its registered capital after the establishment of other enterprises, the Supreme Court shall apply the provisions of paragraph second of the first paragraph of the first paragraph of article [1994]4 of the Supreme Court on the issue of civil liability for revocation or closure of other enterprises.

If a start-up unit makes up the registered capital after starting other enterprises, the supreme court execution Office law shall not be held liable by the provisions of the letter No. [1995]274 concerning the determination of whether the establishment unit shall register the registered capital of the enterprise.

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Six, deal with disputes arising from the actual registered capital.

According to the provisions of the company law, the registered capital must be verified and verified by a statutory capital verification institution.

Therefore, the registered capital after the establishment of a start-up unit must be verified and verified by a statutory capital verification institution.

If the opposing party has any objection to the capital verification certificate issued by the capital verification institution, the court shall, according to the Supreme Court's "provisions on civil litigation evidence", entrust the relevant capital verification institution to conduct the appraisal.

Seven, a start-up unit shall assume the civil liability for the start-up enterprise within the scope of its unregistered capital.

According to the reply of the Supreme Court of the people's Republic of China, No. second of the first paragraph of the reply No. [1994]4 of the Supreme Court, and the eightieth provision of the Supreme Court of the people's Republic of China on the issue of civil liability for the cancellation or closure of other enterprises, the start-up unit shall assume the civil liability for the establishment of the enterprise within the scope of its unregistered capital. The first is that other enterprises run by the unit run normally, but no property is paid off, and the two is that the other enterprises established by the establishment unit are revoked or shut down, and their property is not enough to repay their debts.

The eightieth article of the regulation does not distinguish whether the enterprise executor has been revoked or closed, but generally speaking, the executor has no property to pay off debts. This includes the situation that the executors are closed and revoked, including the fact that the executors are not honest when they are under normal operating conditions, and the two cases are applicable.

Eight, the operating unit does not repeat the principle of responsibility in the context of "unregistered capital".

According to the provisions of the eighty-second provision of the provisions, "the units that have been executed have already undertaken all responsibilities to other creditors within the scope of registered capital or in the scope of accepting property, and the people's court shall not order the establishment of units to bear responsibilities repeatedly."

This is for the implementation of the situation in practice.

For example, the executing unit may not pay the registered capital of only 500 thousand yuan, and a court has already executed the other court. According to its own legal document, other courts have set up a unit to produce 500 thousand yuan registered capital, because the obligation of the establishment unit to register the enterprise is only 500 thousand yuan. This principle of not repeating the responsibility should be applied to two situations.

First, it has been carried out by a court. The two is that the start-up unit takes the initiative to produce the registered capital, and the obligation to assume responsibility has disappeared. It should be applied. It can not be repeated to assume responsibility. It can not be said that the start-up unit itself is willing to take out the registered capital and can bear the same responsibility repeatedly.