A sole proprietorship enterprise refers to a legally established business entity in China, which is invested by a natural person and its property belongs to the investor, and the investor assumes unlimited liability for the debts of the enterprise with his personal property. A sole proprietorship enterprise is not a legal person, but the law recognizes that it can enjoy certain rights and undertake certain obligations in its own name, and recognizes that it has certain independent ability. China's Law on Sole proprietorship enterprises, which came into effect on June 65438+ 10/2000, is the basic law to adjust the economic relations of sole proprietorship enterprises.
1, conditions for the establishment of a sole proprietorship enterprise
According to the provisions of the Law on Sole proprietorship Enterprises, the establishment of sole proprietorship enterprises in China adopts the principle of standardization in legislation, that is, as long as the conditions for establishment stipulated by law are met, enterprises can directly register for industry and commerce without the approval of relevant departments.
(1) The investor is a natural person.
Investors of a sole proprietorship enterprise must be natural persons, and legal persons and other organizations cannot become investors of a sole proprietorship enterprise. An investor applying for the establishment of a sole proprietorship enterprise shall have corresponding capacity for civil rights and capacity for civil conduct.
(2) It has a legal enterprise name.
A sole proprietorship enterprise must conform to its liability form and cannot use the words "limited liability", "limited" and "company".
(3) The capital contribution declared by the investor.
There is no restriction on the amount of investment of a sole proprietorship enterprise by law, which shall be declared by the investor at the time of establishment. In principle, the amount declared by investors should be commensurate with the scale of production and operation of the enterprise, and can be contributed by personal assets or family property.
(4) Having a fixed place for production and business operation and necessary conditions for production and business operation.
The place of production and business operation includes the residence of the enterprise and the place suitable for production and business operation. The domicile is the location of the main office of the enterprise and the legal address of the enterprise.
2. Restrictions on sole proprietorship enterprises
(1) Persons prohibited by laws and administrative regulations from engaging in profit-making activities may not apply for the establishment of a sole proprietorship enterprise as investors.
Sole proprietorship enterprises are generally small in scale, with simple establishment procedures and flexible operation. Therefore, in order to benefit the development of sole proprietorship enterprises, the conditions are relatively relaxed except for necessary restrictions. There are no other restrictions on the scope of investors except those prohibited by laws and administrative regulations from engaging in profit-making activities.
(2) Investors must be citizens of China.
Investors of a sole proprietorship enterprise must have China nationality. For foreign natural persons, a sole proprietorship enterprise can only be established in accordance with the Law on Wholly Foreign-owned Enterprises. According to the law, natural persons with the status of Taiwan, Hong Kong and Macao should be recognized and cannot be investors of sole proprietorship enterprises.
3. Rights and obligations of investors
The distinctive feature of a sole proprietorship enterprise is that it belongs to an individual. The investors' investment and income in the enterprise are all owned by the individual, and the investors enjoy the ownership of the enterprise property, and their related rights can be transferred or inherited according to law. At the same time, the investor is also the person in charge and representative of the enterprise, and enjoys the management right of the enterprise. Of course, he can manage the affairs of the enterprise by himself, or entrust or hire other people with civil capacity to be responsible for the affairs management of the enterprise.
A sole proprietorship enterprise is not a legal person, and its civil rights and obligations shall be enjoyed and assumed by the investor, that is, the owner of the enterprise, and the investor shall bear unlimited liability for the debts of the enterprise with his personal property. Although a sole proprietorship enterprise is similar to a one-man company, the difference between them is that (1) a one-man company has a minimum capital threshold, while a sole proprietorship enterprise does not. A sole proprietorship enterprise is only allowed to be established by natural persons, and a one-person company is also allowed to be established by legal persons; (2) A one-man company has an independent personality, so it should pay taxes on its operating income and shareholders' personal income respectively, while a sole proprietorship enterprise only pays investors' personal income tax; (3) The internal and external supervision system of one-man company is very strict, such as special registration system, accounting supervision system and governance structure, which are not required by sole proprietorship enterprises; (4) A one-person company is an enterprise legal person, and the company bears civil liability independently with the enterprise property, and the investor only bears limited liability to the extent of its contribution, and the investor of a sole proprietorship enterprise bears unlimited liability externally. It can be seen that although the company law has allowed the establishment of a one-man company, the sole proprietorship enterprise still has the value of existence, and investors should not blindly change the sole proprietorship enterprise into a one-man company.
Second, the partnership enterprise
A partnership enterprise refers to a legally established for-profit organization in which all partners enter into a partnership agreement, * * * jointly contribute capital, * * * jointly operate, * * * enjoy benefits, * * * bear risks and bear unlimited joint and several liabilities for the debts of the partnership enterprise. A partnership enterprise is also an unincorporated enterprise.
2. Conditions for the establishment of a partnership enterprise
(1) There must be more than two partners.
The establishment of a partnership enterprise must be attended by qualified partners. In terms of the number of partners, there must be at least two partners, which is different from a sole proprietorship enterprise.
(2) The amount of capital contribution actually paid by the partners.
As a partner of a partnership, you must have specific capital contributions, which can be monetary, physical, land use rights, intellectual property rights and other property rights. With the unanimous consent of the partners, labor services can also be used as a form of capital contribution. There is no legal limit on the specific contribution of a partnership, as long as the partners think it is suitable for operation.
(3) Have your own name
As one of the main players in the market, partnership enterprises should have their own names. According to the Regulations on the Administration of Enterprise Name Registration, an enterprise is only allowed to use one name, which should conform to its business characteristics and organizational form. After the enterprise name is approved and registered according to law, the enterprise enjoys the right to use the name.
(4) Having a business place and necessary conditions for engaging in partnership operation.
A partnership enterprise must have a certain business place and the necessary conditions for engaging in business. The so-called necessary conditions mean that, according to the partnership purpose and business scope of a partnership enterprise, it is impossible to engage in production and business activities without material conditions.
2. Partnership property
Partnership property is the material basis for partnership enterprises to carry out production and business activities. The Partnership Enterprise Law stipulates that during the existence of a partnership enterprise, the capital contributions made by the partners and all gains made in the name of the partnership enterprise are the property of the partnership enterprise.
(1) Property contributed by partners. Generally speaking, the contribution of partners means the transfer of ownership. Where there is a special agreement when the partners make capital contributions, such agreement shall prevail. Where the land use right or other property that needs to be registered for change is used as capital contribution, the change formalities shall be handled. When a partner makes a contribution with intellectual property rights, he may use his right to use it as a contribution through licensing. In this case, the partner retains the ownership of the intellectual property. If a partner has no ownership of the contributed property itself, he can only contribute with the rights and interests he enjoys. For example, the partner invests in the rights and interests of the leased house. Since the ownership cannot be transferred objectively, the investment at this time can only be the right to use the house.
(2) All proceeds obtained in the name of the partnership. This part of the property is the property accumulated by the partnership. No partner may dispose of this property without authorization, but it shall be used and managed by all partners in a unified way. Before the distribution, the proceeds shall be used in a coordinated way in line with the business purpose of the partnership, and the rights and interests enjoyed by all partners are consistent with the rights and interests of business decisions.
As the ultimate undertaker of the partnership responsibility, the partners shall enjoy the rights and bear the corresponding obligations to the partnership property.
Partners' rights to partnership property include: 1 * * * the same right or * * * the right to use according to the different contents of partnership property rights. Partners have rights over the property of the partnership; Enjoy the right to use the property that the partnership enjoys his real right or other restrictive rights. 2*** The same dominance. When a partner decides to transfer or dispose of the partnership property, it must obtain the consent of all the partners and may not transfer or dispose of it without authorization. 3 the right to distribute interests. Each partner has the right to share the profits of the partnership in the course of operation.
Partners' obligations to the partnership property include: 1 Partners shall make their respective contributions according to the time limit, amount and method agreed in the partnership agreement. During the duration of the partnership, the partners may not require the division of the property of the sub-partnership. Partners shall not dispose of the partnership property without authorization, including transfer, gift, foreign investment, etc. A partner's personal debts shall be paid off with other personal property first, and shall not be directly offset or paid off with the rights and interests enjoyed by the partnership property.
3. Advantages and disadvantages of cooperation.
Compared with sole proprietorship enterprises and companies, partnership enterprises have irreplaceable advantages in other economies, but they also have their own shortcomings, which need operators to choose according to their own purposes and trade-offs.
(1) The sources of funds of partnership enterprises are wider than those of sole proprietorship enterprises. It can give full play to the strength of enterprises and individual partners, thus enhancing the operating strength of enterprises and making their scale relatively expanded. However, compared with the company, the partnership enterprise has limited sources of funds and credit ability, and cannot issue stocks and bonds, which makes the scale of the partnership enterprise impossible to be too large.
(2) Because the partners * * * share the business risks and responsibilities of the partnership, the risks and responsibilities of the partnership are dispersed relative to the sole proprietorship. However, compared with the liability of the shareholders of the company, the joint liability between the partners makes the partners responsible for their business activities, which increases the risks of the partners.
(3) The law does not levy income tax on the partnership as a unified taxpayer, so the partners only need to pay income tax together with other personal income.
(4) Because the law has less interference and restrictions on the partnership, the partnership has greater autonomy and flexibility in management, and each partner has the right to participate in enterprise management, which is different from the right of shareholders to manage the company.
(5) Because the partnership has a strong human nature, the bankruptcy, death or withdrawal of any partner may lead to the dissolution of the partnership, so its duration cannot be very long.
Three. limited liability company
A limited liability company refers to an enterprise as a legal person established by a certain number of shareholders, and the shareholders are liable to the extent of their capital contribution, and the company is liable to all its property.
1, conditions for the establishment of a limited liability company
(1) The number of shareholders meets the statutory requirements.
According to the provisions of the new company law, a limited liability company is established by shareholders with less than 50 employees. Natural persons or legal persons can invest in the establishment of a one-person limited liability company, and natural persons can only invest in the establishment of a one-person limited liability company. A one-person limited liability company shall indicate the sole proprietorship of a natural person or a legal person in the company registration, and indicate it in the company business license.
(2) Shareholders' capital contribution reaches the minimum statutory capital.
The original "Company Law" stipulated: 500,000 yuan for companies mainly engaged in production and operation or commodity wholesale; 300,000 yuan for companies mainly engaged in commercial retail; Science and technology development, consulting and service company 654.38+10,000 yuan. According to the revised Company Law in 2005, the minimum registered capital of a limited liability company is RMB 30,000. The minimum registered capital of a one-person limited liability company is RMB 654.38 million.
(3) Articles of Association formulated by shareholders * * * or articles of association formulated by shareholders of a one-person limited liability company.
(4) There is a company name.
The name of a company shall be marked with the words "limited liability company" or "limited company", and an organization meeting the requirements of a limited liability company shall be established.
(5) Having a fixed place for production and business operation and necessary conditions for production and business operation.
Step 2 organize
A complete company organization should include shareholders' meeting, board of directors and board of supervisors. The shareholders' meeting is the authority of a limited liability company, and it is a non-permanent institution composed of all shareholders to express the company's meaning. The shareholders' meeting does not represent the company externally and does not conduct business internally. The board of directors is the executive body of a limited liability company, and it is a permanent institution elected by the shareholders' meeting to carry out the company's business internally and represent the company externally. A company with few shareholders and a small scale may have only one executive director instead of a board of directors. The board of supervisors is composed of shareholders' representatives and employees' representatives in an appropriate proportion, and the specific proportion is stipulated in the articles of association. The employee representatives in the board of supervisors are democratically elected by the employees of the company. A limited liability company with fewer shareholders and smaller scale may have one or two supervisors. Directors, managers and financial officers may not concurrently serve as supervisors.
3. Rights and obligations of shareholders
The choice of legal form of an enterprise must be completed by the investor, and the shareholders of the company first consider the rights and obligations, risks and interests of individuals.
Shareholder's right is usually called shareholder's right or equity, which refers to the legal right that shareholders enjoy to the company based on their capital contribution. The rights of shareholders are divided into self-interest rights and * * * interest rights. Self-interest right is the right to obtain economic benefits from the company; * * * Beneficial right is the right of shareholders to participate in the management and supervision of the company. Shareholders realize or protect their own interests while exercising their beneficial rights.
4. Limited by Share Ltd
A company limited by shares, also known as a joint-stock company, refers to an enterprise legal person in which all the capital of the company is divided into equal shares, and shareholders are liable to the company with the shares subscribed by them, and the company is liable to the company's debts with all its assets. Joint-stock companies are different from other corporate legal forms because of their wide number of shareholders and complete capital cooperation.
1, the advantages of a company limited by shares
A company limited by shares has incomparable advantages over other companies and enterprises. As we mentioned earlier, a company limited by shares is almost the only choice for those who want to raise funds extensively and set up large enterprises.
(1) is conducive to fund raising.
A company limited by shares is the most favorable company form for concentrating capital, not only because it can publicly issue stocks and bonds, but also because its shares are generally small, so it can absorb a small amount of scattered funds in society more widely.
(2) Spreading risks
With its limited interests and limited risks, the company has realized the unification of legal forms different from other enterprises, and the shares of a joint stock limited company further subdivide these interests and risks, and the risks of shareholders are further dispersed than those of a limited liability company.
(3) Convenient share transfer
Limited by Share Ltd is the most typical joint venture company. Its shares are highly liquid and can be freely transferred and circulated. There is no need for a limited liability company to decide the transfer of equity by convening a shareholders' meeting, and there is no need to guarantee the preemptive right of other shareholders.
2. The shortcomings of a joint stock limited company
A joint stock limited company provides advantages and conveniences that other legal forms do not have, and at the same time, there are restrictions on the balance of interests in the legal system, which is an inevitable defect and deficiency for investors.
(1) The establishment and management costs are higher than those of other companies.
The responsibility of setting up a joint stock limited company is heavier, the procedure of setting up a company is more complicated than that of a limited liability company, the management organization and requirements are more complicated and huge, and the activities of the company are more constrained and restricted, so the cost of setting up and managing is higher.
(2) Disclosure of business information
A joint stock limited company is open, and the law requires a joint stock limited company to implement publicity management measures in order to protect a large number of shareholders who do not participate in the operation and management. The company's business information needs to be disclosed completely, timely and accurately according to law, which affects the possibility of the company obtaining benefits in a hidden way to some extent.
(3) Strict supervision according to law
The management of joint stock limited companies by law is stricter than any other enterprise form, which is reflected in the clear provisions on the establishment of internal management institutions, information disclosure and related transactions.
(4) minority shareholder control
Due to the large number of shareholders, convenient equity transfer and lack of sense of responsibility for the company, a large number of shareholders choose to "hitchhike". Relatively speaking, as long as you own a certain proportion of shares (sometimes this proportion is very low), you can manipulate the management of the company, so it is easy to cause minority shareholders to abuse their control rights and harm the interests of other minority shareholders. The article is taken from the network. If there is any infringement, please contact to delete it.