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Reply of the State Council Concerning the Revising of the Provisions on Registration Administration of Legal Representatives of Enterprise Legal Person |
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(Replied by the State Council on June 12, 1999, and promulgated by Decree No. 90 of the State Administration for Industry and Commerce on June 23, 1999) The State Council approved the following revisions made to theProvisions on Registration Administration of Legal Representatives ofEnterprise Legal Person: 1.Paragraph 1 of Article 7 is revised to Article 6 as follows: " Inapplying for modification of the registration of legal representative, anenterprise legal person shall submit the following documents to theoriginal enterprise registration organ: (1) a document removing the original legal representative of theenterprise; (2) a document appointing the new legal representative of theenterprise; (3) an application for modification of the registration signed by theoriginal legal representative or the proposed legal representative.Paragraphs 2 and 3 of Article 7 are deleted. 2.One article is added as Article 7: "Where a limited liabilitycompany or a joint stock limited company wishes to replace its legalrepresentative, a decision shall be made at a meeting convened by theShareholders' Meeting, the Shareholders' General Meeting, or the Board ofDirectors; however, if the original legal representative cannot or failsto fulfill his duty, thereby causing the meeting of the Shareholders'Meeting, the Shareholders' General Meeting, or the Board of Directors cannot be convened according to legal procedures, the meeting shall beconvened and presided over by a director selected by more than half of thedirectors, or a shareholder who makes the most investment or holds thebiggest vote right of shares or his delegated representative, and at whicha decision shall be made." Moreover, several changes to the expression are made to theProvisions on Registration Administration of Legal Representatives ofEnterprise Legal Person and the order of articles and paragraphs aremodified. The Provisions on Registration Administration of LegalRepresentatives of Enterprise Legal Person shall be revisedcorrespondingly according to this Reply and promulgated by your Bureau. Appendix: Provisions on Registration Administration of LegalRepresentatives of Enterprise Legal Person (Approved by the State Councilon February 22,1998, promulgated by Decree No.85 of the StateAdministration for Industry and Commerce on April 7,1998, approved andrevised by the State Council on June 12, 1999, and promulgated by theDecree No. 90 of the State Administration for Industry and Commerce onJune 23, 1999) Article 1 These Provisions are formulated to standardize theregistration administration of legal representatives of enterprise legalperson. Article 2 These Provisions are applicable to registrationadministration of legal representatives in registration of enterpriselegal persons (including, here and below, registration of companies). Article 3 A legal representative of an enterprise legal person(hereinafter referred to the legal representative) shall, upon theexamination and approval of the enterprise registration organ, obtain thestatus of the legal representative. Article 4 No person under any one of the following circumstancesshall serve as a legal representative, nor shall an enterpriseregistration organ grant registration upon examination: (1) lacking capacity for civil conduct or with limited capacity forcivil conduct. (2) undergoing criminal punishment or under a criminal coercivemeasure. (3) having been wanted for arrest by public security organs or Statesecurity authorities. (4) having been sentenced to criminal punishment for the crime ofembezzlement and bribery, financial fraud or for disrupting the order ofthe socialist market economy, where not more than five years have elapsedsince the expiration of the enforcement period; or having been sentencedto criminal punishment for another crime, where not more than three yearshave elapsed since the expiration of the enforcement period; or havingbeen deprived of political rights for committing a crime, where not morethan five years have elapsed since the expiration of the enforcementperiod. (5) having served as the legal representative, director or managerpersonally responsible for the bankruptcy liquidation of an the enterprisedue to mismanagement, where not more than three years have elapsed sincethe date of completion of the bankruptcy liquidation. (6) having served as the legal representative of an enterprise thathad its business license revoked for violating the law, where suchrepresentative bears individual liability therefor and not more than threeyears have elapsed since the date of revocation of the business license. (7) burdened with relatively large amounts of personal debts thathave fallen due but have not been settled. (8) under other circumstances, prescribed by law and the StateCouncil, by which disqualified from serving as a legal representative. Article 5 The procedures for selecting and removing an enterpriselegal representative shall comply with the provisions of the law,administrative regulations and articles of association of a legal personenterprise. Article 6 In applying for modification of the registration of legalrepresentative, the enterprise legal person shall submit the followingdocuments to the original enterprise registration organ: (1) a document removing the original legal representative of theenterprise; (2) a document appointing the new legal representative of theenterprise; (3) the modification of registration application signed by theoriginal legal representative or the proposed legal representative. Article 7 Where a limited liability company or a joint stock limitedcompany wishes to replace its legal representative, a decision shall bemade at a meeting convened by the Shareholders' Meeting, the Shareholders'General Meeting, or the Board of Directors; however, if the original legalrepresentative cannot or fails to fulfill his duty, thereby causing themeeting of the Shareholders' Meeting, the Shareholders' General Meeting,or the Board of Directors can not be convened according to legalprocedures, the meeting shall be convened and presided over by a directorselected by more than half of the directors, or a shareholder who makesthe most investment or holds the biggest vote right of shares or hisdelegated representative, and at which a decision shall be made. Article 8 In the event of the occurrence of one of the circumstanceslisted in Article 4 of these Provisions during the tenure of office of alegal representative, the enterprise legal person concerned shall applyfor a modification of the registration of its legal representative. Article 9 A legal representative shall exercise his functions andpowers within the terms of reference prescribed by law, administrativeregulation and articles of association of the enterprise legal person. Article 10 The legal representative shall submit to the enterpriseregistration organ a sample of his signature for the record. Article 11 A person, in violation of these Provisions, obtaining thestatus of legal representative by concealing truth and adopting deceptivemeans, shall be ordered to make corrections and fined not less than 10,000yuan but not more than 100,000 yuan by the enterprise registration organ;if the circumstances are serious, the enterprise registration shall berescinded, and the business license of the enterprise legal person shallbe revoked. Article 12 If, in violation of these Provisions, there is a failureto apply to register the modification of legal representative though itshould be done, the enterprise registration organ shall order themodification done within a specified time limit; if there is a failure tomodify the registration, after the expiration of the time limit, a fine ofnot less than 10,000 yuan but not more than 100,000 yuan shall be imposed;if the circumstances are serious, the enterprise registration shall berescinded, and the business license of the enterprise legal person shallbe revoked. Article 13 All units or individuals shall, if finding a legalrepresentative falling into one of the circumstances listed in Article 4of these Provisions, have the right to make a disclosure to enterpriseregistration organ. Article 14 These Provisions take effect as of the date of promulgation. |
