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Crime Of Escaping From Registered Capital By Enterprise Owners

2014/5/3 19:21:00 22

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Recently, the Standing Committee of the National People's Congress (NPC) made a legislative interpretation, clarified the application scope of the crime of false registration of capital and false capital contribution and the crime of escaping from the criminal law in the criminal law. P

This means that since then, the two criminal charges of "false registration of capital crime" and "false capital contribution and crime of escaping out of capital" have been applied only to the traditional companies that have paid the registration system of registered capital in accordance with the law, but no longer apply to the new companies that have subscribed to the registration system.

lawyer Chen Youxi believes that this is a major amendment to the registered capital crime, which is matched with the company law and the industrial and commercial administrative regulations. It is a great benefit to all enterprises.

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April 22nd, the eighth session of the Standing Committee of the twelve National People's Congress (NPC), in the form of "interpretation draft", clarified the scope of application of the crime of false registration of capital and false capital contribution and the crime of escaping from the criminal law in the criminal law.

< interpretation > the provisions of the 158th and 159th articles of the criminal law apply only to companies that have paid the registration system of registered capital in accordance with the law.

for a company other than a paid in registration system, if a shareholder has a false investment or a withdrawal of funds, he shall bear civil liability only. He shall no longer apply the crime of false registration of registered capital and "false capital contribution and escape from capital offense", and shall bear criminal responsibility.

Chen Youxi, chairman and director of Beijing Heng lawyers group, believes that this means that the two criminal charges against the establishment of the market players are only applicable to the traditional companies that have paid the registration system of registered capital in accordance with the law, but no longer apply to the new companies that have subscribed to the registration system.

professor Wu Jingming, a company law expert and professor of China University of Political Science and Law, introduces that the real payment system and the subscription system are two modes of registered capital when the enterprise is registered. The real payment system refers to the amount of registered capital on the business license. The company's Bank (market area) must have the corresponding amount of capital in the capital verification account.

The subscription system is only the total amount of registered capital paid by the industrial and commercial department, which does not need to register the paid capital and no longer certify the capital verification document.

in the middle and late 80s of last century, with the reform and opening up, there was a wave of running companies.

At that time, the overrun of leather bags companies not only seriously infringed the interests of creditors, but also seriously affected the order of the market economy.

Under such a background, when the company law was enacted in 1993, legislators set up a high threshold for registered capital and adopted the registered capital registration system of registered capital of P.

In order to maintain the order of the market economy, legislators not only stipulate the civil liability for false registration of registered capital in commercial law, but also establish "false registration of capital crime" and "false capital contribution and withdrawal of funds" in the criminal law of P.

a legal profession has dubbed these two accusations as "two empty and one pumping".

however, with the development of market economy, the malpractice of registered capital registration system has gradually emerged.

in practice, the registration of many enterprises is commissioned by intermediaries.

Intermediaries adopt a large number of capital verification certificates, and the trade and Industry Bureau only conducts formal examination, which can not actually reflect the real capital situation of the company.

As a result, the "two emptiness and one smoke" in the criminal law has become the reason for their "original sin", which makes the owners frequently hit the rocks.

"these two crimes are the two knives that hung on the vast majority of the business owners in the past. Many business owners are deeply in jail."

Chen Youxi said.

Zhou Zhengyi, the former richest man in Shanghai, Gu Chujun, a military leader in green, who once was a leader of CCTV and a VCD industry giant.

These once prominent entrepreneurs were sentenced to prison.

They are guilty of false registration of capital in their charges.

Chen Youxi has defended the owners in many cases involving "a href=" http://www.91se91.com/news/index_c.asp "false registration of capital crime" /a.

He believed that these two accusations were abused in judicial practice.

For example, after the crime of public security investigation can not be established, we often find out the way from these two crimes. Most enterprises can find the facts of breaking the law.

The application of a large number of these two crimes is Omatsu of China's market economy environment.

supporting measures

Liu Junhai, a professor of company law and professor of Law School of Renmin University of China, has been actively promoting the reform of the industrial and commercial registration system, and suggested that legislation and reform should be promoted simultaneously. P

he believes that the legislative interpretation of the "two false and one smoking" crime is one of the supporting measures to encourage private investment in the reform of the industrial and commercial registration system.

four years ago, the reform of industrial and commercial registration system began to explore in Shenzhen.

In February 2013, at the second plenary session of the eighteenth Central Committee of the Communist Party of China, the plan of institutional reform and functional pformation of the State Council was adopted, and the reform of the industrial and commercial registration system was formally proposed.

On the morning of May 13, 2013 P, the State Council held a national teleconference to mobilize the pformation of the functions of the State Council. Li Keqiang, premier of the State Council, pointed out at the meeting that the reform of the administrative examination and approval system is the breakthrough and the starting point for the pformation of the functions of the State Council.

"reform should be carried out in accordance with the law. The company law should first be amended so as not to conflict with the law."

Liu Junhai said.

In addition, we should make corresponding amendments to the criminal law involving the registration of company capital.

December 28, 2013, the Standing Committee of the National People's Congress adopted the decision to amend the company law.

The registered capital registration system of general companies shall be changed to < < a href= "http://www.91se91.com/news/index_c.asp > > subscribed registration system < /a >", the minimum capital system of registered capital and the time limit for full capital contributions shall be abolished.

The revision of the Company Law triggered a discussion on whether the "two deficiency and one smoking" rule in the criminal law should be amended.

criminal law scholars, the starting point of the legislation of "two false and one smoking" in the criminal law is to maintain the order of the market economy and ensure the registration system of paid capital of registered capital by criminal means.

but now, < a href= "http://www.91se91.com/news/index_c.asp" > Company Law < /a > has been amended, and the registered capital of the company has been changed from the full paid registration system to the registered capital "subscription registration system" of the general company.

if there is no amendment to the criminal law, it may appear that a company that has committed a registration system according to the new company violates the criminal law and constitutes a crime. Therefore, it is very necessary to make a legislative interpretation in time.

for this reason, the National Federation of industry and Commerce recommends abolishing the 158th articles of the criminal law concerning the crime of false registration of registered capital, and 159th provisions concerning the crime of false capital contribution and the crime of escaping from capital.

the National Federation of industry and commerce thinks that due to the high cost of registration, it is common for enterprises to falsification of registered capital in the registration process.

Judicial practice is facing the embarrassment of "universal crime" and "selective enforcement".

Yang Zhaoquan, lawyer of Beijing's law firm P, reminded that "false registration of capital" and "false capital contribution and crime of escape" are not repealed.

For companies that still pay the legal provisions, if they falsely report registered capital or escape capital contributions, they still have to bear criminal responsibility.