First, substantive elements.
According to the Company Law of People's Republic of China (PRC), the basic elements of a company include the following aspects:
1. Organizational requirements: company category, company name, domicile, business scope and organization.
2. Elements of the founder:
(1) The founder of the company can be a natural person or a legal person.
But a natural person must be a person with full capacity.
A legal person must be a social organization with legal personality. Shareholders of an unlimited liability company with unlimited joint and several liability, or partners of a partnership and other social organizations without legal capacity may not act as promoters of the company in the name of a group.
(2) Requirements for the number of founders: The number of founders in the early days of a company varies from law to law.
According to the Company Law of People's Republic of China (PRC), a limited liability company is established by more than two shareholders and less than 50 shareholders.
A one-person limited liability company refers to a limited liability company with only one natural person shareholder or one corporate shareholders.
The sole shareholder of a wholly state-owned company is a government agency that invests according to the authorization of the state or a company with government functions.
To establish a joint stock limited company, there should be more than five promoters, more than half of whom must have domicile in China.
When a state-owned enterprise is transformed into a joint stock limited company, there may be less than five people, but it shall be established by way of offering.
(3) Capital contribution requirements of sponsors. In countries that implement the authorized capital system, there are no clear and strict legal provisions on the capital contribution requirements of promoters. However, China is a country that implements the principle of determining capital contribution, and there are strict and detailed regulations on the capital contribution requirements of promoters.
note:
First, the registered capital of a limited liability company or a joint stock limited company shall not be lower than the statutory minimum registered capital stipulated in Articles 23 and 78 of the Company Law of People's Republic of China (PRC).
Second, in the way of capital contribution, the law allows the use of physical objects, industrial property rights, non-patented technologies, land use rights and other property that can be calculated in money as capital contribution. But at the same time, it is stipulated that the value of intangible assets shall not exceed 20% of the registered capital.
Third, the founder must clearly stipulate the total registered capital of the company in the articles of association. The amount and mode of contribution of the promoters and the registered capital must be paid in full when the company is established.
According to Article 28 of the Company Law of People's Republic of China (PRC): "After the establishment of a limited liability company, if it is found that the actual price of the physical objects, industrial property rights, non-patented technology and land use rights as capital contribution is obviously lower than the amount stipulated in the company's articles of association, the capital contribution shareholders will make up the difference, and other shareholders at the time of the establishment of the company will be jointly and severally liable for it."
Where a joint stock limited company is established by offering, the shares subscribed by the promoters shall not be less than 35% of the total shares of the company, and the remaining shares shall be offered to the society.
Fourth, it is forbidden to "falsely report registered capital", "falsely contribute capital" and "withdraw capital contribution". If yes, legal liabilities will be investigated according to Article 206 of the Company Law of People's Republic of China (PRC), Article 208th and relevant laws.
(4) The establishment of behavioral elements.
Second, the procedural elements.
The procedural requirements for the establishment of a company include application for registration of establishment, examination of relevant registration authorities, licensing registration and other procedures. The company registration authority in China is the administrative department for industry and commerce. The principle of hierarchical jurisdiction is applied in company registration.
1. Application for establishment registration. According to the provisions of Article 27 and Article 82 of the Company Law of People's Republic of China (PRC), the establishment of a limited liability company or a joint stock limited company shall apply to the relevant registration authority for registration of establishment within 30 days after all shareholders of the company contribute, and submit the documents required for the establishment of the company.
2, the registration authority for examination, license registration. The registration authority examines the applicant's application for establishment registration and the documents submitted, and collects the company's establishment registration fee. Upon examination, if it meets the requirements stipulated in the Company Law of People's Republic of China (PRC), it shall be established and registered, and a business license shall be issued. The company shall be established as of the date when the business license is issued.
Extended data:
Company registration application procedure
The procedure of company applying for registration refers to the procedure of company applying for registration with the registration authority. According to the Regulations on the Administration of Company Registration, the company's application for registration is divided into three types: establishment registration, change registration and cancellation registration, and the registration procedures are also divided into three types accordingly:
1, apply for establishment registration.
The establishment of a company shall apply for pre-approval of its name.
1) Registration of establishment of a limited liability company. To establish a limited liability company, a representative designated by all shareholders or an agent entrusted by all shareholders shall apply to the company registration authority for registration of establishment.
To establish a wholly state-owned company, the institution or department authorized by the state as the applicant shall apply for establishment registration. Where laws and administrative regulations stipulate that the establishment of a limited liability company must be approved, it shall apply to the company registration authority for establishment registration within 90 days from the date of approval; Where an application for registration of establishment is overdue, the applicant shall report to the examination and approval authority to confirm the validity of the original approval document or submit it for approval separately.
To apply for the establishment of a limited liability company, relevant documents and certificates shall be submitted to the company registration authority.
2) Registration of the establishment of a joint stock limited company. To establish a joint stock limited company, the board of directors shall apply to the company registration authority for registration of establishment within 30 days after the founding meeting.
To apply for the establishment of a joint stock limited company, relevant documents and certificates shall be submitted to the company registration authority.
3) Registration of establishment of branches. Where a company establishes a branch, it shall apply to the company registration authority for registration within 30 days from the date of making the decision; If it is necessary to report to the relevant departments for examination and approval according to laws and administrative regulations, it shall apply to the enterprise registration authority for registration within 30 days from the date of approval. The business scope of the branch shall not exceed the business scope of the company. To establish a branch, the following relevant documents and certificates shall be submitted to the company registration authority:
An application for registration of the establishment of a branch signed by the legal representative of the company; A copy of the Articles of Association and the Business License of Enterprise as a Legal Person stamped by the company registration authority; Certificate of use of business premises; Other documents required by the company registration authority. If there are items in the business scope that must be approved by laws and administrative regulations, the approval documents of the relevant state departments shall be submitted.
References:
Baidu Encyclopedia-Company Registration