Franchising is essentially a contractual act and a civil right of the parties to engage in franchising activities. It is not appropriate for the government to implement administrative examination and approval control, but it is necessary to supervise and manage its business activities in order to maintain market order and protect the legitimate rights and interests of the parties. In view of this, the "Regulations" established a franchisor filing system, requiring franchisees engaged in commercial franchising to file according to law.
Requiring franchisers to put on record has three main functions: first, it is convenient for commercial authorities to know and master the relevant information of franchisers in time, and regulate and supervise franchise activities in a targeted manner; Second, it helps potential investors to understand the basic situation of the franchisor, make appropriate investment decisions, and prevent fraud and false propaganda; Third, it is conducive to the formation of social supervision over franchisers.
Commercial franchise enterprises should pay attention to the following aspects when filing:
1, subject scope of filing and registration
Paragraph 2 of Article 3 of the Regulations stipulates that no unit or individual other than an enterprise may engage in franchise activities as a franchisor. It can be seen from this provision that only enterprises can become the main body of franchising. According to the regulations of enterprise registration management in China, the only valid proof to confirm the identity of an enterprise is the business license issued by the administrative department for industry and commerce. Therefore, verifying the authenticity of the business license of the enterprise has become the first place in filing management.
2 enterprises registered for the record shall comply with the provisions of "two stores a year".
Paragraph 2 of Article 7 of the Regulations stipulates: "Franchisors shall engage in franchise activities in no less than two direct stores, and the operating time shall exceed 1 year". The so-called "two stores a year" requirement, the main purpose is to prevent some enterprises from using franchising for fraud. At the same time, the direct store has a certain demonstration function, which is convenient for other operators to intuitively understand the franchisor's brand, business model and business situation from the operation of the direct store.
First of all, as the name implies, "direct stores" should refer to stores owned by franchisees. Among them, "ownership" should include not only sole proprietorship, but also controlling ownership. In addition, considering the fine division of labor among enterprises in modern economic life, even different enterprises in the same group may have different division of labor-some enterprises may only engage in franchisees' business, while others are responsible for operating stores. Therefore, if the franchiser's affiliated enterprises can meet the requirements of "two stores and one year", we think that the franchiser itself should be regarded as meeting the requirements of "two stores and one year". Neither the Regulations nor the Measures for the Administration of Commercial Franchise Filing defines the meaning of "affiliated enterprise", but Article 3 of the Measures for the Administration of Information Disclosure of Commercial Franchise makes relevant provisions: "The affiliated enterprise as mentioned in these Measures refers to the parent company of the franchisor, its subsidiaries which directly or indirectly own all or most of the shares, and companies which directly or indirectly own all or most of the shares with the franchisor". We believe that this definition can be used to judge whether the franchisor meets the requirements of "two stores and one year", that is to say, if an enterprise with direct or indirect holding relationship with the franchisor meets the requirements of "two stores and one year", the franchisor should be deemed to meet the requirements.
Secondly, it should also be noted that the business of direct stores should be the same business operated under the same brand as the franchise business. For example, if the franchisor's direct store is engaged in fast food service, but its franchise business is dry cleaning, obviously, at this time, the franchisor's direct store cannot prove that the franchisor has established a mature operation mode in the franchise business field (that is, fast food service), which is not in line with the legislative intention of "two stores a year". Therefore, in order to meet the requirement of "two stores a year", the business operated by direct stores must be the same as that operated by franchisees.
Third, the brand of a direct store must be the same as that of a franchise store. Assuming that the franchisor is engaged in fast food business under brand A and owns several fast food restaurants under brand A, but the franchisor has never been engaged in fast food business under brand B, it will take time to prove the business model and market prospect of specific brands. If the franchisor intends to engage in fast food franchise business under brand B, it is not enough for franchisees to successfully operate fast food business under brand A, because franchisees can successfully operate fast food business under brand A. It doesn't mean that they can also establish a mature business model under brand B. Therefore, in order to meet the requirements of "two stores a year", direct stores should operate under the same brand as franchise businesses.
Fourth, the certification documents issued by the municipal competent commercial department of the district in accordance with the provisions of the second paragraph of Article 7 of the Regulations; If the direct store is located overseas, the franchisor shall provide the business certificate (including Chinese translation) of the direct store, which shall be notarized by the local notary office and certified by the local embassy or consulate of China. Except for franchisees who have engaged in franchise activities before May 1 2007, the first franchise contract concluded between franchisees and franchisees in China shall be submitted.
In addition, the operation 1 year or more stipulated in the second paragraph of Article 7 of the Regulations not only refers to the establishment and operation of enterprises 1 year or more, but also includes the operation of direct stores owned by enterprises 1 year or more.
Step 3 get the login number
The login number is the only proof of the franchisor's application for filing through the Internet. After obtaining the login number of the website of the filing system of the Ministry of Commerce, the franchisor can enter the login number and password, and then file the filing page, upload and modify the documents.
By putting in and obtaining the login number, it is ensured that the franchisor can accept the supervision of the public and the management of the filing organ in his own space, and the uncertain security factors are minimized.
Obtaining the login number is only an identity examination process before applying for filing, just like an enterprise should get a registration form from the administrative department for industry and commerce before registration, which belongs to one of the preparatory work before filing and does not belong to the start date of the deadline stipulated in Article 9 of the Regulations. The filing time of formal application shall be counted from the date when the franchisor submits all documents and materials through the network after obtaining the login number.
According to the provisions of Articles 43 and 63 of the General Principles of the Civil Law, the filing management organ has stipulated three ways of identity confirmation in the filing system. First, the legal representative of the franchisor directly handles it; Second, the franchisor entrusts a natural person to handle it; Third, the franchisor entrusts intermediary organizations such as associations and legal institutions to handle it. According to different ways, in order to ensure the identity of the agent, according to the experience in judicial practice and relevant laws and regulations, the documents that need to be presented in different ways are put forward:
1. If the legal representative of the franchisor directly handles the application, he must bring: the original business license of the enterprise as a legal person, the original identity certificate of the legal representative, the franchisor's name, contact person, contact person's position, telephone number, fax number, address, postal code and email address.
If it is impossible to submit the original business license, it shall hold the original certificate or other valid certificate with the official seal of the local industry and commerce (the competent department of commerce at or above the provincial level and the chain association) (such as the notarial certificate that the copy of the business license is consistent with the original);
2. If the franchisor authorizes other natural persons, it shall first check whether the authorization has gone through legal authorization procedures (including but not limited to notarization) to confirm the authenticity of the power of attorney, and then ask the trustee to bring: the original business license of the franchisor, the original power of attorney entrusted by the franchisor, the original identity certificate of the legal representative, the original identity certificate of the trustee, the franchisor's name, contact person, contact person's position, telephone number and fax number.
If it is impossible to submit the original business license, it shall hold the original certificate or other valid certificate with the official seal of the local industry and commerce (the competent department of commerce at or above the provincial level and the chain association) (such as the notarial certificate that the copy of the business license is consistent with the original);
Third, if the franchisor authorizes other intermediaries to handle the matter, it should first check whether the authorization has gone through legal authorization procedures (including but not limited to notarization) to confirm the authenticity of the power of attorney. Then the agent of the intermediary agency is required to bring: a copy of the franchisor's business license, the original power of attorney of the franchisor to the intermediary agency, the original business license of an enterprise as a legal person verified by the intermediary agency and the identity certificate of its legal representative, the original documents with the same copy, the original qualification certificate of the intermediary agency and the identity certificate of its responsible person, the name of the franchisor, the contact person and the position, telephone number, fax number, address, postal code and e-mail address of the contact person.
4. Business resource report
Franchising refers to the business activities in which an enterprise with registered trademarks, enterprise logos, patents, proprietary technologies and other business resources licenses its business resources to other operators in the form of contracts, and the franchisee conducts business under a unified business model according to the contract and pays franchise fees to the franchisor. Therefore, enterprises should fill in relevant business resources when filing and registering.
First, the notice of acceptance of registered trademarks, patents, copyrights, etc. Can not be identified as a franchise resource alone, but should be filled in with other resources that meet the legislative requirements, and filled in as accepted registered trademarks, patents and copyrights. In other words, only franchised enterprises that accept notices of registered trademarks, patents, copyrights, etc. Does not meet the filing conditions, can not pass the filing.
Second, for the submitted copyright registered by the copyright authority, if it is the copyright registration of enterprise logo, the authorized content should be "enterprise logo"; If it is a non-enterprise logo copyright (business manual), you should choose "Other" when filling in the authorized content.
Thirdly, in practice, the business resources of many franchised enterprises are authorized or transferred by other natural persons, enterprises and other organizations. If the license is granted, the documents authorized by the obligee or filed by the state competent authority must be filled in, and the authorization or filing shall indicate that the franchised enterprise has the right to entrust a third party. For other natural persons, enterprises and other organizations with foreign rights, the power of attorney shall be notarized by the local notary office and certified by the local Chinese embassy or consulate. If the right transfer is involved, the transfer approval certificate issued by the state organ must be filled in.
Fourth, the scope of rights indicated in the franchise enterprise's business resource rights certificate or other supporting documents should be consistent with the franchisor's actual business. For example, catering that obviously does not conform to the franchisee's business, but the protection category of the licensee's registered trademark is clothing.
In addition, if the franchise enterprise's business resource rights certificate is registered or issued in other countries or regions, it shall be implemented in accordance with the relevant provisions of bilateral agreements signed with that country or international conventions acceded to by * * *.
5. Submit a PDF file
According to the second paragraph of Article 5 of the Measures, (4) a copy of the business license of the enterprise as a legal person or other qualification certificates in the filing documents; (five) a copy of the registration certificate of the business resources such as trademark rights and patents related to the franchise activities; (six) the certification documents issued by the municipal competent department of commerce in accordance with the provisions of the second paragraph of Article 7 of the Regulations; If the direct store is located overseas, the franchisor shall provide the business certificate of the direct store (including Chinese translation), which shall be notarized by the local notary office and certified by the local Chinese embassy or consulate; (The provisions of the preceding paragraph shall not apply to franchisers who have engaged in franchise activities before May/KLOC-0, 2007, but they shall submit the first franchise contract concluded between franchisers and franchisees in China. (7) A sample franchise contract; (8) Catalogue of Franchise Manual (the number of pages in each chapter and the total number of pages in the manual shall be indicated, and if it is provided on the internal network of the franchise system, the estimated number of printed pages shall be provided); (nine) the products and services that can only be franchised according to the provisions of national laws and regulations shall be submitted to the approval documents of the relevant competent departments; (10) For seven items, such as the franchisor's undertaking signed and sealed by the legal representative, the filing system requires the electronic file format submitted by the franchisor to be uniformly defined as "portable file format" (i.e. PDF file), and the system does not accept other file formats. Therefore, it is necessary for the franchisor to input the submitted documents into the computer by scanning or taking photos and make them into PDF files.
6. Online declaration and declaration
The franchisor must log on to the enterprise login page of the Commercial Franchise Information Management System:/,and enter the user name, password and verification code issued by the filing institution in the "Enterprise Login" on the left. Passwords are case-sensitive. After the first login, the system will force the user to change the password. The system will list the agent information entered when picking up the number for the user to check, and add the item "contact mobile phone number". After clicking Save, the system will automatically exit.
After exiting, the system will directly jump to the login page and directly enter the user name issued by the filing authority and the new password set in the above steps. On the left side of the system, the franchisor's name will be immediately prompted as the filing applicant, that is, the name of the franchisor's enterprise, and the name of the filing authority will be displayed as the Ministry of Commerce or the competent commercial departments of provinces, autonomous regions and municipalities directly under the Central Government. At this time, the filing status of the filing enterprise displayed is generally "Not Submitted" (there are also two statuses of filed and filed), and the filing number will be blank, which can be displayed later.
Users can see all the information filled in, and click Save as word to save the declaration form. After verification, they can also click on the declaration to submit an application. At the same time, after filing, the filing status of the filing enterprise will be changed to declared. After that, users will no longer be able to modify the contents of the application materials themselves.
7. Management after examination, publication and filing by the competent commercial department.
According to Article 10 of the Measures, the filing organ shall file the documents and materials submitted by the franchisor in accordance with Article 5 of the Measures within 10, and make an announcement on the website of the Ministry of Commerce.
The above-mentioned starting time shall be calculated from the date when the filing authority receives the online application materials applied by the franchisor for filing. If the materials submitted by the franchisor do not meet the specified requirements, the filing authority will require the franchisor applying for filing to supplement the relevant materials within 7 days. If supplementary information is needed, the starting time shall be recalculated from the date when the franchisor applying for filing submits the information.
According to Article 14 of the Measures, the public can inquire the following contents through the government website of the Ministry of Commerce: (1) the franchisor's enterprise name and business resources such as registered trademarks, enterprise logos, patents and proprietary technologies used in the franchise business; (2) The filing time of the franchisor; (3) The address and contact information of the franchisor's legal business place and the name of its legal representative; (4) The business address of the franchisee in China. (At present, only the franchisor's name, filing number, legal representative's name and filing time can be provided, even if telephone consultation is conducted, other items are not provided. )
After the franchisor completes filing, the original filing materials may change during the operation period due to various reasons. Therefore, Article 7 of the Measures stipulates that within 30 days after the filing materials are changed, the application for change or modification shall be submitted through the online filing management system "filing management". According to the basic information of the franchisor and the contents of the change application submitted by the enterprise to the filing department, the filing organ shall approve or reject the change application and send it to the franchisor applying for change through the system.
According to Article 11 of the Measures, if the franchisor who has completed the filing commits one of the following acts, the filing authority may cancel the filing and make an announcement on the website of the Ministry of Commerce: (1) The franchisor's business license is revoked by the registration authority for illegal business operation; (2) The filing organ has received a judicial recommendation from the judicial organ to cancel the filing due to the franchisor's illegal business operation; (3) The franchisor conceals relevant information or provides false information, which is verified by verification; (4) The franchisor revokes it by itself.
The filing management organ has the right to directly cancel the filing of enterprises that have passed the filing, notify the filing franchisor through the e-mail reserved by the franchisor, and publish it in the list of enterprises that have cancelled the filing.
The above provisions are aimed at establishing a completely open and transparent commercial notification system, and ensuring an open channel for the public to choose and understand the franchisor and its projects.