I. Introduction
The sixth meeting of the Standing Committee of the Twelfth National People's Congress in December 28, 2013 passed the "National People's Congress Standing Committee on revising" the people's Republic of China Marine Environmental Protection Law "and other seven legal decisions, the decision to make 12 changes to the current" company law ", the revised" company law of the people's Republic of China "(hereinafter referred to as the" company law ") since March 1, 2014 implementation. The modification of the "company law" mainly concentrated in the registered capital paid in registration system, the minimum amount of registered capital, monetary capital accounted for the proportion of registered capital and capital verification provisions. The State Council on 7 February 2014 approved the registered capital system reform scheme "(hereinafter referred to as" program ") and the content of reform and innovation, the program mainly implement the system of registered capital subscribed, the minimum registered capital of cancellation, cancel the registration of the company need to submit verification report, will corporate annual inspection system for corporate annual report of the public system and to simplify the residence (establishments) registration, implementation of electronic license and full electronic registration and management etc.. Then the State Council revised the relevant administrative regulations, the State Administration for Industry and commerce to amend the relevant regulations in order to work with the "company law", "plan" phase of convergence and coordination.
Efforts to modify the relevant laws, administrative regulations and rules, the action is fast, encouraging and uplifting, reflects the central government decentralization, the transformation of government functions of the guiding ideology, is an important measure to release the dividends of reform, promoting employment, promote entrepreneurship is of vast venture in encouraging and promoting. Youth is the hope and the backbone of the country, youth is even more of the market economy the main business, is the most active of the new force in the market economy, the young entrepreneurial success, for economic development, solve employment, technological innovation and increase tax are of vital importance. This paper to the "company law" modification as the background of youth entrepreneurship legal problem research, the main analysis of the threshold and legal risk of youth entrepreneurship, for the majority of young entrepreneurs provide legal reference, enhance the awareness of the legal risk of the majority of young entrepreneurs, the majority of young people in the entrepreneurial process law, law-abiding, usage and less detours. Because of the large amount of capital, the number of shareholders, and the number of shareholders, young entrepreneurs generally do not open a joint venture company, the company will run a limited liability company, this paper takes the case of limited liability company.
Two legal analysis of the threshold of youth entrepreneurship
The modification of the company law and other regulations, greatly reducing the threshold of young entrepreneurs, making the business procedures simplified, shortened the business cycle, the cost of entrepreneurship is greatly reduced. Mainly embodied in the following aspects.
(a) the minimum amount of registered capital of the company has been canceled.
The company law in this modification, limited liability company registered capital of 30000 yuan, the minimum registered capital of 100000 yuan, which is just starting young entrepreneurs is a large number of funds, such as may be part of the green year entrepreneurs stopped at the start, it is not for the market competition or for Youth Innovation and technology development are unfavorable. From the point of view of judicial practice, the minimum registered capital system in protection of creditors of the company, maintain transaction security effect is not ideal, the minimum registered capital system was modified or even get rid of voices are increasingly high [1]. Only by improving the entrepreneurial enthusiasm of youth, market main body to be active, the market survival of the fittest to radiate vigor and vitality. "Company law" in reference on the basis of the advanced experience of foreign company legislation has made new provisions, in addition to the laws and administrative rules and regulations of the company the minimum amount of registered capital is otherwise provided for in the outside, the abolition of the limited liability company, a limited liability company registered capital shall be respectively inductotherm 3 and 10 million yuan of the minimum requirements. Previously we always mentioned that in the United Kingdom, Hongkong, China can be a dollar money to open the company, and now the mainland China region has achieved this goal, which is a great boon for young entrepreneurs, the future will not need to reach the minimum registered capital and worry.
(two) the registered capital of the company is changed from the registered capital of the company to the registered capital
Previous "company law" provides that all shareholders of limited liability company for the first time can not be less than the registered capital of twenty percent, also can not be less than the statutory minimum registered capital, and the remaining part of the company since the establishment of the company within two years after the payment of the company's shareholders should be in full payment of the amount of the company's charter. Thus, the revised "company law" for the implementation of the company's registered capital is paid in registration system. The new "company law" the company registered capital subscribed registration system, that is, in addition to laws, administrative regulations, the abolition of the first capital contribution of shareholders can not be less than twenty percent of the registered capital, can not be less than the statutory minimum registered capital, and the remaining part of the shareholders should be paid within two years from the date of establishment of the investment company in five years, the provisions of the "one person limited liability company shall pay a clear investment". Prior to 2005, if Limited registered capital subscribed 1000000, it must be established before the company paid 1000000; after 2005, the company registered capital subscribed 1000000, must be paid 200000, the remaining two years after the establishment of the company. Now pay system to pay the subscription system, when the registered capital without the time limit, the law is no longer required to pay the company's shareholders to pay the full funding of the period, as to when the payment is fully funded by the company's articles of association. Registered capital of the company registered capital system after the implementation of the capital, the youth of the threshold to further reduce the cost of entrepreneurship, the cost of a lot of business, will further stimulate the enthusiasm of the majority of young people.
(three) the lowest proportion of the capital contribution to the registered capital of the company has been cancelled
2005 "company law" provides that all shareholders of limited liability company in the capital of the proportion of the company's registered capital of thirty percent, the revised "company law" to cancel this limit, the proportion of shareholders' money is not the lowest limit, land use rights, physical, intellectual property, as long as the money can be used as long as the transfer of non monetary property can be used as an investment, not mandatory. But shareholders not to credit, natural person name, labor, franchise, goodwill, or set the security of property at a price of investment, because these things are difficult to monetary valuation or difficult to transfer. This change for young entrepreneurs also have practical significance, in the establishment of the company can integrate all kinds of property for the registered capital, as long as it is able to valuation and can be transferred according to law can be used as the company's investment, to a large extent, ease the shortage of cash for young entrepreneurs.
(four) the company registration, no need to submit verification report
Capital contribution of shareholders and the company's capital are closely linked, which is related to the company's development, other shareholder's rights and interests of the creditors of the company claims. Therefore, it is necessary to ensure that shareholders to fulfill the obligation of capital contribution, the legislation of many countries company shareholder invested with confirmation system, in our country is mainly reflected verification system [2]. The company law before the amendment and implementation is the registered capital of the company paid registration system, capital contributions made by shareholders must by a lawfully established capital verification institution, which shall issue a certification, that is to say before the establishment of the company must be on capital verification; otherwise, it shall not be registered. Current "company law" the registered capital of a limited liability company by paid registration of subscribed to the registration system, and registered capital of the company invested when paid no time on the mandatory restrictions, if also implement verification can clearly be to conflict with the aforementioned changes and contradictions, and cancelled the capital before the establishment of the company, capital is no longer the company was founded in the pre conditions. This for young entrepreneurs, eliminating the need for a sum of costs, because verification is generally to the accounting firm for and by the accounting firm issued capital verification certificate, accounting firms for capital verification to collect fees, now cancel verification, save the company registered capital verification fee, to reduce the cost of the young entrepreneurs entrepreneurship.
(five) the annual report of the company's annual inspection system shall be changed to the annual report of the publicity system.
The amendment of the "company law", every year the company should be to the business sector for the annual inspection, each inspection to submit a large number of text materials, but also the audit report issued by an accounting firm, for the company in terms of time-consuming and costly, pain in the neck. Company inspection have been the main purpose is to review the registered companies are legitimate businesses, whether has the ability to continue to operate, which inspection of registered capital is a very important content, because whether there is enough capital is enterprise performance evaluation is an important symbol of the ability to continue as a going concern, but also can prevent shareholders in after verification by the withdrawal of funds. But in reality the annual inspection tends to become a mere formality, the company issued a false audit report is not uncommon, the annual inspection not only failed to achieve its purpose, but also increased the burden on the company. The revised "company law", the annual inspection system is changed to a system of notification of the annual report, company annual report content matters including shareholders paid investment, asset status etc., responsible for company annual report on the authenticity and legitimacy, the business sector can check the company annual report to the public the content matters if the findings of corporate annual reports concealing the true situation, fraud, the Department of industry and Commerce shall be punished according to the law, and the legal representative of the company, responsible for information and public security, finance, customs, taxation and other relevant departments informed. The company, the business sector in the market subject credit information publicity system will be listed on the market subject credit information to remind them to fulfill the annual report publicity obligations, the company in three years to fulfill the annual report publicity obligations, can apply to the industrial and commercial sector to resume normal state record, and the business sector will be permanently recorded in the operating exception list, shall not resume normal state, and included in the list of serious violations. Company annual inspection system for the company's annual report system, for young entrepreneurs to reduce operating costs, save time and energy, but this does not mean that can be illegal, because it also needs the annual report, if in the annual report to conceal its true situation, make false, the business sector to be punished, serious may also enter the blacklist (a serious violation of the company list).
(six) simplify the registration of the company's residence (place of business)
"Decision" pointed out that the applicant submitted to the business premises to be registered, the company's residence (business premises) conditions, the provinces, autonomous regions and municipalities directly under the central government according to the actual needs of the local area management, according to the principle of market access, and effectively protect the economic and social order, can be self or authorize the lower people's government to make specific provisions. The State Administration for Industry and Commerce of the people's Republic of China on the implementation of the regulations for the implementation of the regulations of the people's Republic of China on the implementation of the rules, the sixth thirty-second, the use of proof of property rights and housing lease agreement. The term of the lease of the house must be in a year or more.
In the "company law" before the amendment, the registration of the company to provide proof of residence proof of the higher, the more cumbersome procedures, and even require the housing lease period must be more than a year, which will undoubtedly increase the burden of young entrepreneurs. Now simplify the registration procedures for the company's residence, making the company's more efficient, for young entrepreneurs to be very favorable.
Three legal analysis of the risk of youth entrepreneurship
Through the above analysis we know that the company law and other laws and regulations, to a large extent, reduce the threshold for young entrepreneurs, start-up companies need to reduce the amount of capital, the company's registration procedures are simplified a lot, canceled the tedious annual inspection, these changes will undoubtedly be good for young entrepreneurs. But the majority of young friends still have to wake up after all risks, and most of the articles are concerned about the company's registration procedures for the simplification and reduction of the threshold, but there are few articles concerned about the legal risks of young entrepreneurs, so that the majority of young friends just listen to the good, but not to listen to risk tips, which will mislead young entrepreneurs. This paper not only to analyze the "company law" to amend the law of youth entrepreneurship threshold, but also to analyze the legal risks of youth entrepreneurship, to provide a full range of young people to provide a full range of reference, so as to keep a clear mind. Below from the legal point of view of the risk of youth entrepreneurship, so that young friends to understand the legal risks of entrepreneurship, in order to better control, avoid these risks, reduce losses.
(a) the registered capital of the company does not mean that it can not be paid or less.
After the amendment of the company law, registered capital of the company by paid registration system changed to subscription registration system, abolished the minimum registered capital of the company, cancel the verification, is no longer required to shareholders of the company paid up capital contribution period, as to when paying capital contributions, by the company's articles of Association agreed on their own. Here, I want to correct the young entrepreneurs may have a false idea: the implementation of the company registered capital subscribed registration system can not invest or less. This concept is not only wrong, but also very dangerous, the reasons are as follows.
1 registered capital amount is a sign of the strength of the company, although the revised Company Law canceled the company registered capital of the minimum limit, and canceled the company's shareholders to pay the full amount of investment, but the registered capital of a company is still very important. Limited liability mainly refers to the limited liability of shareholders, which is limited to the amount of capital contribution to the company, rather than the limited liability company. The company takes the responsibility of the whole assets, the company has independent property, independent personality and can be independent of the responsibility, has the legal personality [3]. company as an independent legal person to take responsibility for the entire assets, the company's registered capital is the basis of the company's operations and external responsibility. The company's trading is the first to see the company's strength, and the amount of registered capital is an important symbol of the strength of the company, if the company's registered capital is too low or investment has not yet been in place, the transaction will be the strength of the company, the impact of the transaction further, which is likely to lose business opportunities for young entrepreneurs.
2 Shareholders' capital contribution can be in the market main body credit information publicity system query. In the market subject credit information publicity system, the industry and commerce departments of the company registration, filing, supervision and other information, the company in accordance with the provisions of the company submitted, publicity annual report and obtain qualification license information, any unit and individual can query, the annual report of the company's main content should include the company's shareholders (promoters) to pay the investment, asset status, etc.. Company registered capital, capital investment and other information in the market main body credit information publicity system has shown that the system is open to the public, the transaction is easy to query the company registered capital and shareholder capital investment information, such as the publicity method will promote young people to pay their contributions as soon as possible.
3 young entrepreneurs do not fulfill their obligations to fulfill the obligations of the young entrepreneurs should be a correct understanding of the company's registered capital subscribed responsibility, reason to make a commitment to make a commitment, strictly in accordance with the regulations of the company, the time and amount of the sponsor agreement to fulfill the actual investment responsibility. Responsible for company annual report on the authenticity, legality, the business sector to carry out spot checks on corporate annual report of the public content, if it is found that the company annual report fraud, concealing the truth, the business sector will be punished according to law. The company registration management Ordinance, sixty-sixth provisions: the company's sponsors, shareholders of false investment, not delivered or not delivered as a contribution to the money or non monetary assets, the company registration authority shall be ordered to correct, with a false capital contribution of 5% or more than 15%. Young entrepreneurs if violations of investment obligations will face administrative penalties for the industrial and commercial sector.
4. Young entrepreneurs does not fulfill the obligation of capital contribution will face other legal risk youth entrepreneurship person if not according to the articles of Association agreed on schedule and in full, to fulfill the obligation of capital contribution, in addition to repay investors, but also to the other on schedule and in full, the performance of capital contribution obligation of shareholders bear the liability for breach of contract, but also to the creditors of the company creditors bear the supplementary liability, the company can also limit does not fulfill the funded obligations to shareholders of the shareholder rights and even removed the shareholder qualification. As to the detailed analysis of these responsibilities, see below. Assume the responsibility, will enable young entrepreneurs The loss outweighs the gain.
(two) the legal risks of the shareholders of the sponsors shall not fulfill the obligation of capital contribution
Young entrepreneurs to set up a company to start a business, will become the company's shareholders, should be in accordance with the regulations of the agreement to pay their own part of the investment, which is the responsibility of the sponsors of shareholders. If shareholders violate the obligation of capital contribution, it will face the risk of two aspects:
On the one hand, it will be ordered by the executive authorities to correct and fine, which has been discussed in the previous; on the other hand will bear the civil liability. The civil liability of non performance of the obligation of capital contribution is mainly reflected in the following aspects.
1 shall apply to the company to pay the capital contribution. The shareholder is the operating company based, if no shareholder capital contribution, the company will be a shell can not run, so shareholders funded is essential for the company. Shareholders are not fully funded, the company or other shareholders have the right to request the company to fulfill its obligations under the law, the company law twenty-eighth, the Supreme People's Court on the application of the company law of the people's Republic of China (three) (hereinafter referred to as the company law three), the first paragraph of this article made a clear.
2 promoters of non performance of the obligation of capital contribution shall be liable for breach of contract by the sponsors of the shareholders who have paid their contributions in full. Before the establishment of the company, the promoters will conclude the agreement of the promoters, the nature of the agreement is a partnership agreement, the sponsor will agree on the amount of capital contribution and payment terms, if not paid in full in accordance with the contract, is a breach of contract, to pay the full amount of the sponsors of the shareholders' liability, which in the company law twenty-eighth corresponding provisions.
3 does not perform its capital contribution obligations of the shareholders to the debts of the company is unable to repay part of the not funded within the scope of the principal and interest for the debts of the company bear the responsibility of compensation. A basic principle of the company law is the limited liability of shareholders, that is, the company's assets indirectly responsible for the company's assets, which is indirectly responsible for the company's assets. Shareholders of the company's debt obligations in the scope of their contribution, if the shareholders have been fully funded, the responsibility will be transferred to the company, the company independently to bear responsibility. However, if the shareholders did not fulfill their obligations, the shareholders have obligations in the scope of the company's debt can not be paid to the company to bear supplementary liability, which not only does not exceed the limited liability of shareholders, and indirectly promote the shareholders to fulfill the obligations of the performance of the company, the company law interpretation thirteenth second three were clearly defined.
4 shareholders not to fulfill their obligations may be limited to the rights of shareholders. The shareholders shall make appropriate and reasonable restrictions on the rights of the remaining property of the company according to the shareholders' meeting or the company's articles of association. If it does not fulfill the contribution obligation of shareholders and other has performed its contribution obligation of shareholders' rights is the same, do not make any distinction between, which is obviously has to fulfill the obligation of capital to shareholders is very unfair for, does not conform to the rights and obligations of the consistent principle, it is necessary to did not perform its capital contribution obligations to shareholders of the shareholders' rights should be limited to, which did not perform its capital contribution obligation of the shareholders of both punishment and is fair for, on the one hand urging them to back as soon as possible investment, on the other hand, this approach is also in line with the rights and obligations of the consistent principle, to protect the capital contribution obligation of shareholders interests have been fulfilled, the company law interpretation, "the third 16 to confirm this.
5 not to fulfill the obligations of the investment may be the shareholders may be relieved of shareholder qualification. Limited liability company's shareholders did not fulfill their obligations, the company urged the company to pay, in a reasonable period of time the shareholders have not yet paid, the company can hold a shareholder meeting to make the resolution of the shareholders' qualification. As mentioned above, the capital contribution of shareholders is the foundation of the company's establishment and operation, which is very important for the development of the company. If the shareholders are fully non performance of the investment, the company will not pay after the company's contribution, the shareholders of the shareholders' qualification is lost, from the essence of the company is no longer a shareholder, the company in the form of shareholders' meeting in the form of a legal issue, the company law interpretation seventeenth first approved this approach.
(three) the legal risks of the shareholders' capital contribution after the establishment of the company
Due to the situation. After the establishment of the withdrawal of capital in the company, the shareholders will be the actually paid capital part or all from the company to recover the shareholders smoke escape capital has the following three elements: first, the company has been set up; second, the company initiated pursuant to the articles of Association of the company, the appointment of information have been put in place, and constitute the company's registered capital; third, smoke escape capital direct responsibility for the company to sponsor shareholders, including the units and individuals. The company law before the amendment of company registration verification, Co., Ltd. shareholders do not perform its capital contribution obligations is not very common, more in the company after the establishment of the withdrawal of capital contribution. , of course, after the amendment of the company law, still faces the establishment of the company after the shareholders' withdrawing funding problems, especially the majority of young entrepreneurs because of lack of funds, may will be desperate and withdrawing funds diverted him, but the smoke escape capital will enable young entrepreneurs face many legal risks.
Young entrepreneurs in the company after the establishment of the capital, will face the following legal risks. First, the return of withdrawing investment principal and interest; second, smoke escape capital shareholders to the company cannot pay off the debt part in smoke escape capital interest undertake the responsibility of compensation; third, withdrawing the capital contribution of the shareholders will be limited to the rights of shareholders; the fourth, pumping escape contribution of all of the shareholders may will lift the shareholder qualification. Due to these risks, and the former does not fulfill the contribution obligation of risk responsibility is basically the same. For details, please refer to the "company law" Article 35 and the company law explain three "to Article 12, Article 14, paragraph 1, paragraph 2, Article 16, the provisions of Article 17, no longer tautology.
(four) the joint liability of the shareholders of the other promoters and the sponsors of the breach of the obligation of capital contribution shall be jointly liable to the creditors of the company.
The majority of young people in the business, the establishment is not a limited liability company, the shareholders of the company usually people, it will have another risk: even young entrepreneurs as a sponsor of the shareholders themselves make full payment for capital, no capital flight, but if the other shareholders did not fulfill their obligations when the creditors of the company, did not fulfill their obligations in the sponsors of shareholders as the defendant, the shareholders in the interest not funded within the scope of the debts of the company can not repay part undertake the responsibility of compensation, the formalities for delivery funded sponsors of shareholders and the shareholders to creditors of the company shall be jointly and severally liable, "company law. Third three" thirteenth in the corresponding provisions.
This point of the majority of young entrepreneurs may be difficult to understand, feel unreasonable, this article is a brief description of the provisions of the law. Before the establishment of the company, the promoters (contributors) will sign a promoter agreement, the nature of the agreement is a partnership agreement, is a common legal act, the purpose is consistent, that is, the establishment of the company. Promoters in fact, before the establishment of the company has set up a partnership, all the sponsors to form a whole, the sponsors have the responsibility to ensure that other sponsors, otherwise the non funded part of the joint liability.
After the establishment of the company, which means that the promoters of the partnership is automatically dissolved, despite the dissolution of the partnership, but as a partner of the sponsors of the partnership is still to bear joint and several liability, the sponsor to ensure that the responsibility of the other sponsors are not eliminated, the promoters continue to assume joint responsibility for the non funded part of the. This reminds the majority of young entrepreneurs, as the promoters of shareholders not only themselves to pay the full amount of capital, but also urge other sponsors to pay the full payment of the shareholders, otherwise it is possible to assume joint and several liability.
(five) the legal risks of the transferee
Young entrepreneurs may also become a shareholder of limited liability company through the purchase of other people, so as to operate the company, to achieve business. But young entrepreneurs to buy other people's equity also exist legal risk, according to the company law interpretation three, eighteenth: limited liability company's shareholders are not fulfilled or not fully fulfill the obligations that the transfer of equity, the assignee knows or should know that the company can request the shareholders to fulfill their obligations, the assignee to bear joint liability. Young entrepreneurs should pay attention to the risk of buying other people's equity, the key to see if the shareholders of the equity of the shareholders fully fulfill their obligations, the transfer of shares of the shareholders' rights are flawed. Defective capital contribution of shareholders in the actual value of the company at the time of the establishment of non monetary contribution is significantly lower than that of the articles of association of the company the price volume, not in accordance with the contribution of shareholder equity is in place and whether there are defects must be clearly verified, or young entrepreneurs may both to pay the assignee costs of transferring prescribed in the articles of association funded or fully funded [6]., but also for shareholders, the equity transfer assume responsibility to repay capital. This will caused great losses, should pay attention to avoid such risks.
Four, conclusion
Youth entrepreneurship is a big problem, there are many legal issues need to be resolved. The company law to modify the company's business environment is more relaxed, the threshold is greatly reduced, which will stimulate the enthusiasm of the majority of young people to promote entrepreneurship, active market, which is good for the majority of young entrepreneurs or the entire macroeconomic is good. Young entrepreneurs at the beginning of the business, we must pay attention to the legal risks of entrepreneurship, legal entrepreneurship, integrity and entrepreneurship, otherwise it will be a great loss. This paper is based on the company law, combined with the relevant regulations, from the threshold of entrepreneurship and the legal risk of two aspects of the analysis, for the majority of young entrepreneurs to provide legal support and reference, improve the enthusiasm of the young entrepreneurs and try to reduce the legal risk of youth.
[reference]
[1] Dou Jingwei. The perfection of the minimum registered capital system of our country is suggested to [J]. Journal of Zhengzhou University (PHILOSOPHY AND SOCIAL SCIENCES EDITION), 2013 (6): 48-49.
[2] Wu Gaochen. The civil liability of false verification [J]. theory, 2009 (18): 21-22.
[3] Zhang Li. On the limited liability system of shareholders [J]. Hebei law, 2007 (12): 138-139.
[4] Beijing first intermediate people's Court of the people of the four court. [M]. Beijing: China procuratorial press, 2006:105-107.
[5] Xi Jianlin. On the determination of the company 's shareholders' contribution to the capital and its civil liability [J]. law and politics, 2005 (2): 36-37.
[6] Xiao Haijun. The legal effect of the transfer of defective capital contribution [J]. political and legal forum, 2013 (2): 73-74.