The branch was severely punished. Does the major illegal record of the head office affect the bidding qualification?
Case source:
Yanbian Korean Autonomous Prefecture Intermediate People's Court (20 16)No. 138 Ji 24 Bank Administrative Litigation Case.
Referee points:
When Article 19 of the Regulations for the Implementation of the Government Procurement Law was applied, the branch company was given an administrative penalty of a large amount of fine for illegal operation, which belonged to the "major illegal record" of the head office.
Key words:
By the head office and branch offices, they were fined heavily and their licenses were revoked.
Case history:
From June 2065438 to June 2006, Jilin Hua Teng Project Management Co., Ltd. (hereinafter referred to as Hua Teng Company) organized and implemented the competitive negotiation procurement project entrusted by Yanji Bus Terminal.
After review by the judges, the pre-transaction supplier was determined to be Yanbian Northeast Asia Passenger Transport Group Co., Ltd. (hereinafter referred to as Northeast Asia Passenger Transport Company), and the pre-transaction announcement was issued on Yanji Municipal Government Procurement Network and Jilin Provincial Public Resource Trading Information Network.
Later, Yanbian Transportation Co., Ltd. (hereinafter referred to as Yanbian Transportation Company), a supplier who participated in the bidding, thought that Northeast Asia Passenger Transport Company was not qualified to bid and questioned Huateng Company, which did not adopt it.
Yanbian transportation company refused to accept the reply and filed a complaint with Yanji Finance Bureau.
Yanji Finance Bureau investigated the complaint and made a decision. In this complaint handling decision, Yanji Finance Bureau took back the operation right of passenger lines from Northeast Asia Passenger Transport Company on October 8, 20 14, and the branch of Northeast Asia Passenger Transport Company was fined15,000 yuan by the State Transportation Management Office on October 22, 20 10, which belongs to participating in this government.
Northeast Asia Passenger Transport Company refused to accept the decision of Yanji Finance Bureau and brought a lawsuit to the court.
Court view:
First of all, the question of whether the results of administrative punishment against branches can reach the head office. The court held that although the relevant administrative regulations did not specify the relationship between the branch and the head office and the legal status of the branch, it can be seen from the provisions of China's "Company Law" and "Regulations on the Administration of Company Registration" that "the branch itself does not have the qualification of a legal person, and the branch that has been registered by industry and commerce and obtained a business license can engage in business activities outside the business scope approved by industry and commerce. As a branch of the head office, the branch office is an internal part of the head office. It is an organization established by the head office for financial, taxation and convenient operation, and engaged in some business operations of the head office. The business scope of the branch office shall not exceed the business scope of the head office. " Since the business operated by the branch is only a part of the business operated by the head office, the overall evaluation of the business operated by the head office must include the business operated by the branch office. Therefore, even if a branch company can be listed as a punished person according to the Administrative Punishment Law, it is also eligible to participate in litigation as other organizations according to the Administrative Procedure Law and judicial interpretation, but this does not make the administrative punishment of the branch company's administrative licensing matters completely independent of the evaluation of whether the head office has a "major illegal record". Therefore, the results of administrative punishment imposed by administrative supervision organs on branches should be extended to the head office.
Focus analysis:
In this case, the focus of the dispute between the parties is whether the administrative punishment of the branch company being fined for illegal operation belongs to the "major illegal record" of the head office.
China's Civil Procedure Law and the Supreme People's Court's "Opinions on Interpretation" stipulate that "other organizations established according to law, which have certain organizations and property, but do not have legal person status, may be the parties to civil litigation. Other organizations here include legal person branches established according to law and obtained business licenses. " The Administrative Punishment Law stipulates that citizens, legal persons or other organizations may be the objects of administrative punishment; Citizens, legal persons or other organizations have the right to bring a lawsuit to the court if they think that the administrative organ has infringed upon their legitimate rights and interests.
According to the above provisions, it can be seen that in China, branches established by legal persons have certain civil subject status, can be the object of administrative punishment, and have the qualification to file civil and administrative litigation.
It should be noted that although the aforementioned laws and regulations endow the legal person branches with relevant subject status and litigation qualifications, the legal setting itself is only based on the legal obligations of the legal person branches, especially the ability to pay property, which is conducive to solving disputes as administrative counterparts or litigants, and does not make the administrative punishment of the illegal acts of the legal person branches completely independent of the head office. As far as the subject who bears the ultimate responsibility is concerned, it is difficult for a legal person to break away from the relationship. China's "General Principles of Civil Law" has stipulated that "if the property of an unincorporated organization is insufficient to pay off debts, its investors or founders shall bear unlimited liability". Specific to this case, as stated in the judgment, if the head office as a legal person is allowed by law to obtain an administrative license in its own name, and then the licensing matters are handled by the branch office as a branch office, once it is found that the branch office has a "major illegal record" in the implementation of administrative licensing matters, and this adverse effect is not as good as that of the head office, then the conditions set by other administrative licensing supervision and management laws and regulations for the administrative counterpart to obtain an administrative license will become a mere formality. This not only damages the fair competition rights of other applicants for administrative license, but also leads to administrative law enforcement at a loss, which violates the legislative intent.
Accordingly, the administrative penalty that the branch company was fined a large amount for illegal operation should belong to the "major illegal record" of the head office, and the bidding qualification of the head office will be affected.
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