1. Can a branch sign a contract directly?
1. Branches with business licenses
A. Effectiveness of the contract: Although the branch company does not have the qualification of independent legal person, it has been registered in accordance with the law, obtained the business license and has the business qualification. You can sign an economic contract in your own name, but it is generally within the scope authorized by the company. In judicial practice, it is generally not considered invalid because it is a contract signed by a branch company.
Of course, in order to ensure the performance of the contract, when signing the contract with the branch, the third party may require the company to seal it, or require the company to ratify it before performing the contract. Some people think that a contract that has not been fulfilled after signing is a contract with pending validity. In addition, the guarantee contract signed by the branch in its own name is invalid.
B legal consequences: article 3 1 of the company law stipulates that "a branch company does not have the qualification of an enterprise legal person, and its civil liability shall be borne by the company", but in judicial practice, the third party chooses to be borne by the branch company or the company, or jointly by the branch company and the company. Legal basis: As a branch company (unincorporated organization) has certain group property, which constitutes a certain responsibility capacity, its property is not completely independent and its responsibility capacity is not complete, and its superior legal person generally bears supplementary responsibilities.
C litigants: although the branch does not have independent legal person status, it belongs to other organizations in the civil procedure law, so it can be a plaintiff or a defendant alone as a litigant. In judicial practice, for the convenience of execution, a third party can list the company and its branches as * * * co-defendants.
2. Branches without business licenses
A. It is against the Company Law that a branch company engages in business activities before obtaining a business license (Article 29 of the Company Law: "If a limited liability company is established and a branch company is established at the same time, it shall apply to the company registration authority for registration of the establishment of the branch company and obtain a business license. If a limited liability company establishes a branch after its establishment, its legal representative shall apply to the company registration authority for registration and obtain a business license. " Therefore, it is illegal for a branch company to engage in business without a business license, and it does not have legal subject qualification. The basis for signing the contract is Article 55 of the General Principles of Civil Law: "A civil juristic act shall meet the following conditions: (1) The actor has corresponding capacity for civil conduct; (2) the meaning is true; (3) It does not violate the law or the public interest. " ) of course it is invalid.
B legal consequences: an invalid contract has no legal effect, and the legal consequences arising therefrom shall be borne by the company that established the contract. However, if the third party who signed the contract with the branch knows or should know this situation, the company may reduce or exempt the liability according to the degree of the third party's fault.
C litigants: according to the provisions of the civil procedure law, they do not belong to other organizations and cannot be the subject of litigation. A branch company cannot exercise civil litigation rights as a plaintiff, but the company must participate in the litigation as a plaintiff and exercise the rights of the parties to the contract. In judicial practice, the third party can choose to take the company as the defendant or the branch and the company as the co-defendant (because it is not known whether the branch has a business license before prosecution).
A branch can sign a contract as long as it has a separate business license, but since the branch has no legal representative, all legal responsibilities will be borne by the parent company. A branch company without a business license cannot sign a contract, and the signed contract will not produce any legal benefits.
I hope the above content can help you. Please consult a professional lawyer if you have any other questions.
Legal basis: According to Article 14 of the Company Law, a company may set up branches. The establishment of a branch company shall apply to the company registration authority for registration and obtain a business license. A branch company does not have legal person status, and its civil liability shall be borne by the company.