China's Company Law and Securities Law set very strict conditions for the establishment and registration of companies, as well as the issuance and listing of stocks and bonds. According to Article 19 of the Company Law of China, the establishment of a limited liability company shall meet the following conditions:
1. Shareholders meet the quorum;
2. Shareholders' capital contribution reaches the minimum statutory capital;
3. Shareholders * * * jointly formulate the Articles of Association;
4. Having a company name and establishing an organization meeting the requirements of a limited liability company;
5. Having a fixed production and business operation place and necessary production and business operation conditions.
Article 73 of the Company Law stipulates that the establishment of a joint stock limited company shall meet the following conditions:
1. The promoters meet the quorum;
2. The share capital subscribed by the promoters and publicly raised by the society reaches the minimum statutory capital;
3. The preparatory matters of the promoters of the shares are in compliance with the law;
4. The promoters shall formulate articles of association, which shall be adopted by the founding meeting;
5. Having a company name and establishing an organization meeting the requirements of a joint stock limited company;
6. Having a fixed production and business operation place and necessary production and business operation conditions.
Article 152 of the Company Law stipulates that a joint stock limited company must meet the following conditions when applying for listing its shares:
1. With the approval of the State Council securities management department, the stock has been publicly issued to the public;
2. The total share capital of the company is not less than RMB 50 million;
3. It has been in business for more than 3 years and has been making profits continuously in the last 3 years; If the original state-owned enterprise is established after being rebuilt according to law, or if it is newly established after the implementation of this law, and its main sponsors are large and medium-sized state-owned enterprises, it can be counted continuously;
4. The number of shareholders holding shares with a face value of more than RMB 65,438+0,000 is not less than 65,438+0,000, and the shares publicly issued to the public account for more than 25% of the total shares of the company; The total share capital of the company exceeds 400 million yuan, and the proportion of shares issued to the public exceeds15%;
5. The company has no major illegal acts in the last three years, and its financial and accounting reports have no false records;
6. Other conditions stipulated by the State Council.
Article 16 1 of the Company Law stipulates that the issuance of corporate bonds must meet the following conditions:
1. The net assets of a joint stock limited company shall not be less than RMB 30 million, and the net assets of a limited liability company shall not be less than RMB 60 million;
2. The total amount of accumulated bonds shall not exceed 40% of the company's net assets;
3. The average distributable profit in the last three years is enough to pay the interest of corporate bonds 1 year;
4. The bonus investment raised conforms to the national industrial policy;
5. The bond interest rate shall not exceed the interest rate level stipulated by the state;
6. Other conditions stipulated by the State Council.
Article 162 of the Company Law also stipulates that corporate bonds may not be issued again under any of the following circumstances:
1, corporate bonds were not fully raised in the previous period;
2. The company defaults on the issued corporate bonds or its debts or delays the payment of principal and interest, and it is still in a continuous state.
Article 137 of the Public Law stipulates that the issuance of new shares shall meet the following conditions:
1. The previously issued shares have been fully raised, and the interval is greater than 1 year;
2. The company has made continuous profits in the last three years and paid dividends to shareholders;
3. There are no false records in the company's financial accounting documents in the last three years;
4. The expected rate of return of the company can reach the bank deposit interest rate for the same period.
The application for registration of the establishment of a company, and the application for the issuance and listing of stocks and bonds do not meet the conditions stipulated in the above laws, shall not be approved for registration. Otherwise, it does not constitute a crime to be approved or registered because of favoritism and abuse of power.
The actor's approval or registration of a company's application for establishment registration or its application for issuance and listing of stocks and bonds that do not meet the requirements prescribed by law will inevitably cause great losses to public property, the interests of the state and the people. Otherwise, even if the application for establishment registration of a company that does not meet the requirements prescribed by law or its application for issuance and listing of stocks and bonds is approved or registered, if the public property, the state and the people are not given. Whether it causes great losses to public property, the interests of the state and the people is an important boundary between this crime and non-crime. The so-called heavy losses mainly refer to the huge direct economic losses; Cause bad political influence.
According to the "Provisions of the Supreme People's Procuratorate on the Standards for Filing Crimes of Dereliction of Duty and Infringement" promulgated by the Supreme People's Procuratorate on July 26th, 2006, anyone suspected of any of the following circumstances shall be placed on file:
1, causing direct economic losses of more than 500,000 yuan;
2. The staff of the administrative department for industry and commerce apply for illegal approval and registration of a company that does not meet the conditions prescribed by law, which seriously disrupts the market order;
3. The staff of the financial securities management institution illegally approves the application for the issuance and listing of stocks and bonds that do not meet the conditions prescribed by law, which seriously damages the public interests or seriously disrupts the financial order;
4. The staff of the administrative department for industry and commerce and the financial and securities management institution illegally approve or register the application for the establishment of a company or the application for the issuance and listing of stocks and bonds that do not meet the conditions prescribed by law, resulting in the success of the criminal act;
5. The directly responsible person in charge of the superior department or the local government forces the registration authority and its staff to approve or register the application for the establishment of a company or the application for the issuance and listing of stocks and bonds that do not meet the conditions prescribed by law, resulting in heavy losses to public property, the state and the people's interests;
6 other circumstances that cause heavy losses to public property, the interests of the state and the people. The subject of this crime is the staff of state organs of the relevant competent departments of the state. The relevant competent authorities mentioned in this article refer to the state organs responsible for examining, approving or registering whether the conditions for the company's application for establishment registration or the issuance and listing of stocks and bonds meet the legal requirements. According to the provisions of the company law of our country, the national staff of the relevant competent departments of the state include the following categories:
(1) State functionaries who examine and approve state organs established by a limited liability company as stipulated by laws and administrative regulations;
(two) to examine and approve the state staff of the authorized department of the State Council or the provincial people's government established by a joint stock limited company;
(three) to approve the establishment of a joint stock limited company by the state staff of the securities management department of the State Council;
(4) The national staff of the company establishing the registration authority generally refers to the national staff in the industrial and commercial administrative organs;
(5) The department authorized by the State Council to examine and approve stock issuance or the provincial people's government, or the state staff of the securities administration department of the State Council.
(six) the State Council or the state staff of the securities management department who approved the listing of shares;
(seven) the national staff of the securities management department of the State Council who approved the issuance of bonds.
The term "superior department" as mentioned in the second paragraph of this article is broad, including both the registration authority, that is, the superior leadership and management department of the administrative department for industry and commerce, and the departments outside the administrative department for industry and commerce that have leadership responsibilities for the administrative department for industry and commerce. At the same time, the superior department mentioned here not only refers to the person in charge of the superior department, but also includes the specific staff working in the superior department. Subjectively, this crime must be intentional, that is, the actor knows that the company's application for establishment registration or the application for the issuance and listing of stocks and bonds does not meet the statutory conditions, and ignores the result that illegal approval of registration may cause great losses to public property, the state and the people's interests. As for the perpetrators' criminal motives, they may be varied, some for illegal interests such as money, some for personal gain because of the affection of relatives and friends, and some for revenge or jealousy. Motivation has no influence on the constitution of this crime and can be considered as one of the factors of sentencing.