1, the concept of company establishment
(1) concept
The establishment of a company refers to the activities of the promoters to establish a company in order to obtain the main qualification of the company in accordance with the provisions of the company law before the establishment of the company.
(2) the legal characteristics of the company's establishment
① The establishment subject is the sponsor.
② The establishment can only take place before the establishment of the company, and the legal conditions and procedures should be strictly fulfilled.
(3) The purpose of the establishment behavior is to finally obtain the subject qualification of the company.
(4) Different types of companies, the content of the establishment behavior is inconsistent.
2. The principle of establishing a China company.
(1) According to the relevant provisions of the Company Law, the establishment of companies in China adopts a combination of strict standard establishment doctrine and approved establishment doctrine.
(2) The limited liability company adopts strict principles of establishment standards; A joint stock limited company adopts the principle of approval for establishment.
3. How to set up a company
(1) The company is established by means of initiation and offering.
(2) The establishment of a limited liability company is initiated; A joint stock limited company can be established by initiating and offering.
4. Registration of company establishment
(1) The concept of company registration
Company registration means that when a company is established, changed or terminated, the applicant submits an application to the company registration authority according to law, and the competent authority examines and agrees, and records the legal registration items.
(2) the registered jurisdiction of the company's establishment
(1) The establishment, alteration and termination of a limited liability company and a joint stock limited company shall be registered in accordance with the Regulations of the People's Republic of China on the Administration of Company Registration, and the civil rights capacity of the company and the property relationship between the shareholders of the company shall prevail.
② Registration jurisdiction of the State Administration for Industry and Commerce
Limited by Share Ltd approved by the authorized department of the State Council; Companies authorized by the State Council to invest; A limited liability company established by an institution or department authorized by the State Council alone or jointly; Limited liability companies with foreign investment; Other companies that should be registered by the State Administration for Industry and Commerce according to the law or the provisions of the State Council.
(3) the provincial administration for industry and commerce registration jurisdiction.
A joint stock limited company approved by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government; Companies authorized by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government to invest; A limited liability company jointly established by an institution or department authorized by the State Council and other investors; A limited liability company established by an institution or department authorized by the people's government of a province, autonomous region or municipality directly under the Central Government, independently or jointly; Companies registered by the State Administration for Industry and Commerce.
(4) The municipal and county administrations for industry and commerce shall be responsible for the registration of companies other than the above-mentioned companies within their respective jurisdictions.
(3) Company registration matters
The registered items of the company include: company name, domicile, legal representative, registered capital, enterprise type, business scope and operation period; Name of the promoters of a limited liability company or a joint stock limited company.
(4) Registration procedure
① Application for registration
② Approval and registration
③ Public registration
(5) The legal effect of company establishment registration
(1) The company has obtained legal certificates for business activities.
② The company has obtained the legal person qualification.
③ The company obtained the exclusive right to use its name.
(II) Merger and division of the company
1, merging
(1) A company is merged by two or more companies into one company, and the creditor's rights and debts of the original company are inherited by the surviving company or the newly established company after the merger.
(2) Company merger can take two forms: absorption merger and new merger.
Step 2 separate
(1) A company is divided into two or more companies according to the provisions of the shareholders' meeting or laws, and the property, creditor's rights and debts of the original company are inherited by the separated company in proportion to assets and liabilities.
(2) The division of the company is the right of the shareholders' meeting, but before the division, the company's debts must be paid off or corresponding guarantees must be provided to ensure the interests of creditors, otherwise the company after the division must bear joint and several liabilities for the debts of the original company.
3. Procedures for merger and division of companies
(1) Sign the merger agreement.
(2) Liquidate assets and prepare balance sheets and property lists.
(3) notify creditors.
(4) Debt arrangement.
(3) Termination of the Company
1. Termination reason
(1) voluntary dissolution
(2) Bankruptcy
(3) Dissolution by administrative order
2. The company may be dissolved under any of the following circumstances.
(1) The business term stipulated in the Articles of Association expires or other reasons for dissolution stipulated in the Articles of Association occur.
(2) The shareholders' meeting resolves to dissolve.
(3) The company needs to be dissolved due to merger or division.
3. During the liquidation period, the company shall not carry out new business activities. The company's property shall not be distributed to shareholders before the debts are paid off.
(4) liquidation of the company
1. According to the regulations, a liquidation group shall be established within 15 days when the business term stipulated in the Articles of Association expires, other reasons for dissolution stipulated in the Articles of Association arise or the shareholders' meeting decides to dissolve.
2. The shareholders' meeting of a limited liability company is composed of shareholders, and the liquidation group of a joint stock limited company is determined by the shareholders' meeting. If a liquidation group is not established for liquidation within the time limit, the creditor may apply to the people's court to appoint relevant personnel to form a liquidation group for liquidation.
3. The function of the liquidation group: clean up the company's property and prepare the balance sheet and property list respectively.
4. After clearing the company's assets, preparing the balance sheet and list of assets, the liquidation group shall formulate the liquidation plan and report it to the shareholders' meeting or relevant competent authorities for confirmation.
5. If the company's assets can pay off the company's debts, they shall be paid off separately in the following order: liquidation expenses, unpaid wages and labor insurance expenses, unpaid taxes and other debts of the company.
6. After all the debts of the company are paid off, the remaining company property shall be distributed according to the proportion of shareholders' capital contribution or shareholding.