How Do We See The Guiding Opinions On Comprehensively Promoting The Simple Registration Reform Of Enterprises?

In December 26th, 2016, the SAIC issued the guiding opinions on comprehensively promoting the reform of the simplified registration of enterprises (253) of the industrial and commercial enterprises (253) (hereinafter referred to as the "guiding opinions"), and decided to carry out the reform of simple enterprise cancellation registration in the whole country since March 1, 2017.

In order to ensure the smooth implementation of the simplified registration reform of enterprises, and to facilitate the withdrawal of market players, the director of the State Administration for Industry and commerce registration has recently interpreted the relevant issues of the guiding opinions.

First, what is the background of "guiding opinions"?

In order to thoroughly implement the spirit of the eighteen plenary session of the eighteen and second sessions of the party's Central Committee, the spirit of the six plenary session of the six Central Committee, the fourth central committee, the Fifth Central Committee and the Fifth Plenary Session of the CPC Central Committee, and implement the document of the State Council on the promotion of fair competition in the market and maintain the normal market order, the government's functions should be accelerated to explore the simple cancellation of the pilot enterprises.

The SAIC issued in January 6, 2015 the Circular of the SAIC on the pilot scheme for the simple write off reform (business enterprise note No. [2015] No. 2), and decided to organize a simplified trial of unopened businesses and no debt and debt enterprises in Pudong New Area, Jiangsu, Yancheng City, Ningbo and Shenzhen, Shanghai.

In April 30, 2015, the SAIC issued the reply to the pilot scheme for the partial cancellation of local enterprises in Shanghai and other enterprises. The business enterprise note No. [2015] No. 60] approved Shanghai's Pudong New Area, Jiangsu Yancheng City and Ningbo and Shenzhen city's pilot plans for the simplified registration of unopened businesses and debt free enterprises.

In September 2, 2015, SAIC issued the notice on further promoting the enterprise's simple write off reform pilot work (industrial and commercial enterprises' note No. 2015] No. 142, and approved the 7 provinces (districts and cities) of Tianjin and other provinces to carry out the simple enterprise write off reform pilot program. It is clear that as long as the pilot projects in all localities meet the requirements of the State Council on promoting fair competition in the market and maintaining the normal market order, (no. 20) of the State Council and the principle of the General Administration's trial, it is not necessary to approve the pilot work of the enterprise simply, and the pilot implementation plan can be reported to the General Administration for archival filing.

After that, the pilot area was gradually extended to 19 provinces (autonomous regions and municipalities).

2016 at the beginning of the year, according to the State Council's opinions on promoting fair competition in the market and maintaining the normal market order, 20 of the State Council [2014], and the State Council's notice on Issuing the focal point of promoting decentralization and decentralization and optimizing service reform in 2016 (No. 30), the SAIC launched the pilot work on the reform of the simplified registration system for unopened businesses and enterprises without debt and debt, and started the drafting of the relevant normative documents to comprehensively promote the simple registration reform of enterprises.

In order to consolidate the theoretical basis of the simple cancellation registration reform, in April 2016, the SAIC commissioned the China market supervision and management society to conduct a theoretical study on the market withdrawal system.

In the early October of the same year,

On the basis of summing up the experience of the 19 pilot areas and the academic research results of the research group, we began to draft the guiding opinions on comprehensively promoting the reform of simple cancellation registration of enterprises.

In order to widely listen to all opinions, SAIC has consulted all 31 provinces, autonomous regions, municipalities directly under the central government and cities under separate planning, deputy provincial and Municipal Administration for Industry and commerce, market supervision and management departments, law and order Committee of the National People's Congress, Supreme People's court, legislative Affairs Office of the State Council, Ministry of human resources and social security, Ministry of Commerce, people's Bank of China, taxation administration and Banking Regulatory Commission.

After basically reaching agreement on all aspects, in December 26, 2016, SAIC issued the "guiding opinions", and decided to carry out the simple enterprise write off reform across the country from March 1, 2017 onwards.

The "guiding opinions" has carried out the work deployment in 3 aspects of the clear scope of application, simplifying the registration procedures and clarifying the responsibilities of all parties, and made the work requirements for the nationwide reform of the simplified registration system of the unopened businesses and the enterprises without debt and debt.

Two. What are the basic principles for the reform of the simple cancellation registration system? What are the basic ideas embodied in the system design of the guidance?

2016 in May 18th, Premier Li Keqiang stressed in the executive session of the State Council: "the survival of the fittest is the normal law of market competition.

In order to promote fair competition and prevent bad money from banning good money, we should simplify the cancellation procedures of the market players, support the development of growing enterprises and improve the activity of market players.

The fundamental purpose of promoting the simple registration reform of enterprises is to promote the facilitation of market withdrawal by optimizing the cancellation process and reducing the application documents under the premise of information disclosure, protection of creditors' interests and controllable risks.

The SAIC has always adhered to the basic principles of "convenient, efficient, open and pparent, and controlling risks" in the process of promoting the simple registration reform.

The principle of convenience and efficiency is to innovate the service mode according to the requirements of appropriate conditions and simple procedures, improve the efficiency of registration, facilitate the enterprises to handle the simple cancellation of registration, and improve the market access and exit mechanism of enterprises. The principle of open and pparent is to open up the conditions, procedures, time limits and examination requirements of simple registration, simplify the application scope and registration materials, optimize the registration process, and establish fair and pparent market rules. The risk control principle is to strengthen the legal responsibility of enterprises, perfect the design of enterprise's simple cancellation system, guarantee paction safety, protect the legitimate rights and interests of the three party, such as creditors and trading objects, and maintain fair competition market order.

In the process of studying and formulating the guiding opinions, SAIC holds the basic idea of "trustworthiness presumption, severe punishment against Trust".

The above ideas are embodied in the system of announcement, commitment, stakeholders' objection, formal examination of the business sector, cancellation of registration by breach of trust enterprises, and accountability of people in breach of trust.

We should carry out a more convenient exit procedure for enterprises meeting certain conditions, reduce the number of application materials for cancellation of registration, optimize the process of cancellation registration, and achieve the convenience of market exit. At the same time, we should strengthen credit supervision of market entities, strengthen the responsibility of trustworthy enterprises and investors, promote the construction of social credit system, and further optimize the business environment.

The guiding opinions fully respect the autonomy and autonomy of enterprises and clear the basic conditions for enterprises to apply for simple cancellation and registration.

The eligible enterprises may choose to apply the general cancellation procedure or the simple cancellation procedure independently.

These conditions include the failure to carry out business activities after receiving the business license, no claims or debts before the application for cancellation, or the liquidation of claims and debts.

The applicable types of enterprises include limited liability companies, non company legal persons, individual proprietorship enterprises and partnership enterprises. Other types of enterprises are not included.

Four. How to understand the exceptions to the simple cancellation of registration?

The guiding opinion lists 8 cases that do not apply to simple cancellation. Enterprises should confirm the existence of these 8 situations before applying for simple cancellation, and sign the undertaking by all investors. They solemnly promise not to exist in these 8 situations. If the enterprise promises untrue, it will constitute a breach of law and trust, and all investors will bear the corresponding legal consequences and responsibilities, and accept the restriction and joint disciplinary action of the relevant administrative law enforcement departments.

The registration authority conducts a formal review of the exceptions of the applicant enterprise.

What needs to be explained is that the enterprises that have been listed in the list of abnormal business operations or the list of serious illegal and dishonest enterprises have been removed according to law when applying to the industrial and commercial registration authorities, and the registration authorities may handle the simplified cancellation registration for them in accordance with the guiding opinions.

Five. What are the advantages of simple cancellation registration compared with ordinary cancellation registration?

According to the current law, the cancellation of enterprise procedures is complicated and time-consuming, which affects the efficiency of the market mechanism to a certain extent.

Take the company as an example, according to the relevant provisions of the company law, before applying for cancellation, the company usually needs to set up a liquidation group, announce in newspapers, clean up claims and debts, clean up company assets, compile balance sheets and list of assets, formulate liquidation plans, allocate company assets, make liquidation reports and so on, and submit applications, designated representatives or jointly authorized agents, authorization decisions, liquidation reports, liquidation group reports, liquidation records, certificates and copies of the business licenses.

Based on the "presumption of sincerity", the guiding opinion has realized the convenience of the withdrawal of the main body of the market by optimizing the registration process, reducing the application documents and sharing information.

In terms of submitting materials, the guiding opinions shall simplify the merger of documents, such as the resolutions (decisions) made by the company according to law, the liquidation team's record and the liquidation reports, etc. before the application for ordinary cancellation of registration, and the simplification for all investors, including all investors' undertaking, including all investors' decision to dissolve, cancel, organize and complete the liquidation work.

For those enterprises that have not yet opened up or have no debts, the application for cancellation of registration may only be submitted to the legal representative (investor or partner in execution) for signature (Gai Zhang), the authorized representative, the authorized letter of entrustment, the undertaking letter of the investor and the duplicate copy of the business license.

At the same time, taking into consideration the two situations of compulsory liquidation and bankruptcy liquidation of the people's court, the decision of the guiding opinion that the end of compulsory liquidation is submitted to the people's court for the conclusion of the compulsory liquidation procedure, and the conclusion of the bankruptcy proceedings to the people's court for the conclusion of the bankruptcy proceedings may not be submitted to all investors' undertaking.

In terms of cancellation procedures, the "guidance" unified the information publicity platform, that is, the national enterprise credit information publicity system.

Those who are not registered or have no debt obligation to apply for the simple cancellation of registration shall only be free to carry out the simple cancellation notice for 45 days (natural days) on the national enterprise credit information publicity system, and upload all the investors' undertaking without notice in the newspaper.

Within 30 days after the expiration of the notice (natural day), a simplified cancellation registration can be formally applied to the original registration authority.

What needs to be explained is that the enterprise can take the initiative to cancel the simple cancellation notice before it releases the simple cancellation notice to the formal filing of the simple cancellation registration application.

Under the two circumstances of compulsory liquidation and bankruptcy liquidation of the people's court, the enterprises concerned do not need to make a simple cancellation notice.

Six, why set the deadline for the cancellation of the written notice to 45 days? How do the interested parties make objection messages?

With regard to the time limit for cancellation of the notice, according to the 185th provision of the company law, the liquidation team shall make a notice in the newspaper for at least 45 days, and the creditors concerned may declare their claims in the public notice period.

In order to fully protect the legitimate rights and interests of the interested parties, the guiding opinions stipulate that the time limit for issuing the simplified cancellation notice on the credit information publicity system of the state enterprises is 45 days.

During the announcement period, the interested parties and relevant government departments may raise objections and briefly state their reasons through the function of "objection message" in the column "simple cancellation notice" of the national enterprise credit information publicity system.

After the expiration of the notice, the function of "objection message" is closed.

After the expiration of the notice, or before the registration authority decides to make a simple cancellation of registration, or if the registration authority makes a decision to allow a simple cancellation of registration, the relevant interested parties may submit written objection to the industry and Commerce Department in writing. The industrial and commercial department may act as a basis for making decisions on the cancellation of the simple cancellation or the clues for the relevant cases.

In order to promote information sharing and business synergy among government departments and improve administrative efficiency, the guiding opinions stipulate that when enterprises make simple announcement of cancellation, the registration authorities should also push the relevant information of enterprises to apply for simple cancellation of registration to the tax, human resources and social security departments at the same level through the national enterprise credit information publicity system.

What needs to be explained is that all the dissent information of the national enterprise credit information publicity system is recorded in the enterprise simple cancellation notice, and the public can check all the objection contents through the public announcement system.

No matter whether there is any objection in the announcement period, the announcement period of 45 days (natural days) will not be interrupted.

Seven, how will the registration authority handle the application of the simple cancellation registration?

According to the guiding opinions, the registration authority shall examine the application materials in a formal way and make a distinction between different situations for processing.

For enterprises that do not conform to the conditions for simple cancellation of registration, the registration authority shall make a decision of disregard according to law.

If the application materials are not complete or are not in conformity with the statutory form, the applicant shall inform the applicant of all the contents of the amendment and inform the decision of not accepting it at once or within 5 working days.

The registration organ shall make a decision not to cancel the registration within 3 working days when the application material is complete, the statutory form is accepted, but the objection is raised in the announcement period.

The registration organ shall make a decision to grant a simple cancellation of registration within 3 working days for enterprises that have complete application materials, conform to the statutory form, be entertained and have no objection in the announcement period.

Eight, what is the specific embodiment of the concept of "faithless punishment" in the guiding opinions?

In order to realize the convenience of the exit of the main body of the market, in order to effectively safeguard the paction security and the rights of all parties in the market, the guiding opinions have made special provisions on "clarifying the responsibilities of all parties and protecting the legitimate rights".

First, if the enterprise conceals the true situation and falsification in the simple cancellation registration, the registration organ may make the cancellation and cancellation registration in accordance with the law.

The two is the cancellation of registration, recovery of the main qualification of enterprises, will be included in the list of serious illegal and dishonest enterprises, and in the national enterprise credit information publicity system publicity.

Three, the relevant stakeholders can claim their corresponding rights through civil action.

In case of malicious use of an enterprise's simple cancellation procedure to evade debts or infringe upon the legitimate rights of others, relevant interested parties may advocate their corresponding civil liabilities to investors through civil litigation, including the implementation of the twentieth provisions of the company law, which are "shareholders' abuse of independent status of company law and limited liability of shareholders, evading debts and seriously injure the interests of creditors of the company, and shall be jointly and severally liable for company debts".

Four, if investors violate the laws and regulations and constitute a crime, they shall be investigated for criminal responsibility according to law.

Nine. How do we do a good job of linking up the pilot sites for simple registration cancellation?

In accordance with the "guidance", since March 1, 2017, the reform of simplified registration of enterprises has been carried out across the country.

In order to carry out the reform of enterprises' simple cancellation registration, we should carry out the reform measures, carry out evaluation and follow-up investigation work, and timely adjust and improve relevant system measures and work processes under the guidance of the guidelines so as to ensure consistency with the guidance.

Where the pilot has not yet been carried out, we should conscientiously formulate the internal work system and working process of the simple cancellation registration system in accordance with the requirements of the "guiding opinions", compile the materials for the simple cancellation of registration, inform the business guide and other materials, so as to ensure the smooth implementation of the simple cancellation registration reform.

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