Huangpulin
Netizen's question:
1. A company from other provinces came to our city to carry out coal business. The company has a business license as an enterprise legal person and a coal business license issued by the local industrial and commercial department. It bought coal in our city and sold it to a power plant in this province. The company opened an account in our city in the name of the company, with specialized personnel and office space. Does the company carry out business activities in our city? Should I apply for industrial and commercial registration and obtain a business license in our city? Can I investigate without a license?
2. How to determine whether the company is engaged in business activities or non-business activities in different places? Is there a clear or established legal explanation for the concept of "business activities" that we often talk about? For example, a company engaged in the management of dangerous chemicals in other provinces has a fixed place in a city in other provinces as a transit and distribution station for selling its products in that city, but all its products are transferred and distributed to customers in the name of the company. Is this all business? Is it necessary to apply for branch business registration?
Personal opinion:
At present, there is no clear statement in laws, regulations, rules and normative documents of State Taxation Administration of The People's Republic of China on how to define the activities of enterprises that set up places or institutions outside their residences as business activities or non-business activities. However, it is suggested to refer to the Notice of the Ministry of Communications and the State Administration for Industry and Commerce on Strengthening and Perfecting the Supervision and Management of the Permanent Representative Offices of Overseas Shipping Companies and the Offices of Foreign-invested Shipping Companies (No.534 [1999]).
Article 4 of the document stipulates: "The resident representative office can only provide consulting, liaison, publicity and other non-operating business for the relevant business of the dispatched company in China. The following acts of the resident representative office are illegal and should be stopped, and the parties concerned should be punished according to the relevant provisions:
(a) engaging in the collection of goods and accepting the booking of shipping space;
(2) Opening an operating account to collect freight or operating expenses;
(3) Issuing the company's ocean bill of lading or multimodal bill of lading;
(4) Signing service contracts with customers on behalf of overseas companies;
(5) Issuing bills of overseas companies in China. "
With reference to this document, I personally think that the non-business activities that an office set up by an enterprise can engage in should be limited to providing auxiliary services such as consulting and publicity related to the business of the enterprise, contacting the internal institutions and personnel of the enterprise, understanding the market, providing liaison, and other matters that are not directly related to profit-making transactions. If it is to undertake business, sign the transaction contract of the enterprise's business projects (including product sales contract, raw material fuel and equipment procurement contract, business commodity procurement contract, etc.). ) and its performance (including purchasing and receiving business goods, goods delivered by raw materials, fuels and equipment suppliers, and directly supplying and allocating business goods to users, consumers and distributors at the next lower level) shall be recognized as business activities. Accordingly, the behavior of "the coal management company buying coal from different places and selling it locally" mentioned by netizens is a business behavior; The behavior of "dangerous chemicals management company transferring and distributing dangerous chemicals to buyers in different places" also belongs to business behavior.
However, engaging in business activities is only one of the necessary conditions for enterprises to register in different places. According to the consistent reply of the State Administration for Industry and Commerce and the spirit of the Administrative Licensing Law and the Reply of the Legislative Affairs Office of the State Council on the Application of the Administrative Licensing Law of People's Republic of China (PRC) (Guo Fa Han [2004] No.293), an enterprise that has obtained a business license can conduct business activities in a different place, and it is not necessary to re-apply for a business license in a different place.
According to Guo Guo Han [2004] No.293, if an enterprise establishes a branch or invests in the establishment of an independent accounting legal person in a different place, it shall apply for registration separately and obtain a business license in accordance with the provisions of laws and administrative regulations. A branch is a branch of a company. According to the first paragraph of Article 14 of the Company Law, the establishment of a branch company shall apply for registration and obtain a business license. Article 46 of the Regulations on the Administration of Company Registration stipulates: "A branch refers to an organization established by a company outside its domicile to engage in business activities." Then, can all the business premises set up by an enterprise (company) outside its residence be regarded as branches (branches)?
The Reply of the State Administration for Industry and Commerce on the Definition of Branches in Paragraph 1 of Article 35 of the Regulations on the Administration of the Registration of Enterprise Legal Persons in People's Republic of China (PRC) (Industrial and Commercial Enterprise Zi [1997] No.222) once replied that the "branches" mentioned in Paragraph 1 of Article 35 of the Regulations refer to enterprises with fixed business premises invested and established by legal persons. This should refer to the conditions that a branch of an unincorporated enterprise should have as a legal person. So, does this condition apply to all branches of the enterprise, including branches? In addition, does it mean that as long as all of them do not meet this feature, they cannot be supervised by branches, nor can they be required to register branches and obtain business licenses? For example, an institution or place invested and established by an enterprise as a legal person outside its domicile has a fixed business place, which directly engages in business activities in the name of an enterprise as a legal person, and has no legal personality, and its civil liability is borne by its subordinate enterprise as a legal person. Can it require its branches to standardize and apply for a business license, otherwise it will be investigated as unlicensed operation?
In fact, Article 46 of the Regulations on the Administration of Company Registration stipulates that "a branch refers to an organization established by a company outside its domicile to engage in business activities", which is different from the characteristics of the branch defined in the reply No.222 of the Industrial and Commercial Enterprise Word [1997], and does not require the branch to directly carry out business activities in its own name. In reality, many branches are authorized to engage in business activities in the name of the company.
The State Administration for Industry and Commerce's Reply on Relevant Issues Concerning the Registration and Management of Enterprises' Additional Business Sites (Industrial and Commercial Enterprise Zi [2000]No. 103) clearly states that an enterprise can only have one domicile. An enterprise legal person registered in accordance with the Regulations on the Administration of Enterprise Registration shall establish or change its business premises, and shall register with the registration authority, and the number of business premises is unlimited; The "Regulations on the Administration of Company Registration" does not specify "business premises" as registered items. The business premises established by a company outside its domicile shall be registered according to its branches.
The State Administration for Industry and Commerce once made it clear in the Reply on the Problems of Enterprises Engaging in Business Activities Outside their Domiciles (No.203 [2000] of the Administration for Industry and Commerce) that if an enterprise owns or rents or borrows a fixed place to engage in business activities outside its domicile, it shall handle relevant registration according to the type of enterprise. Among them, if a company engages in business activities in a place other than its domicile, it shall apply for the registration of the establishment of a branch; Where an unincorporated enterprise as a legal person engages in business activities in a place other than its domicile, it shall distinguish whether the established business premises are within or outside the jurisdiction of its registration authority, and apply for the change registration of additional business premises and the industrial and commercial registration of the establishment of branches respectively.
Although the industrial and commercial enterprise [2000] No.203 document was abolished by the State Administration for Industry and Commerce 1 19 on June 23, 2006, the industrial and commercial enterprise [2000] 103 document was not abolished. On this basis, I personally think that business premises or institutions established outside the company's domicile, whether established in the name of the company or in other names, should be registered as branches, otherwise it will constitute unlicensed operation. A business place or institution established by a non-corporate enterprise as a legal person outside its domicile meets the definition of "branch" in Document No.222 [1997] (directly engaged in business activities in the name of the established business place or institution), it shall go through the industrial and commercial registration for establishing a branch, otherwise it will also constitute unlicensed operation; If you directly engage in foreign business activities in the name of a non-corporate enterprise legal person to which the business place or institution belongs, but the place or institution is located outside the jurisdiction of the non-corporate enterprise legal person registration authority, it should also be regarded as a branch, and the business registration shall be carried out according to the norms of the branch, and the business license shall be obtained, otherwise it will constitute unlicensed operation; If a place or institution is located within the jurisdiction of the non-corporate enterprise legal person registration authority, it shall operate in the name of the non-corporate enterprise legal person to which it belongs, but if the place or institution has a name, it shall also be regarded as a branch, and it shall be registered for industry and commerce in accordance with the norms of the branch and obtain a business license, otherwise it will constitute unlicensed operation; Where a place or institution is located within the jurisdiction of the competent registration authority of an unincorporated enterprise as a legal person and operates in the name of the unincorporated enterprise as a legal person to which it belongs, and the place or institution has no name, the unincorporated enterprise as a legal person shall go through the registration of change of adding the business place.
Annex 1: Notice of the Ministry of Communications and the State Administration for Industry and Commerce on Strengthening and Perfecting the Supervision and Management of the Permanent Representative Offices of Overseas Shipping Companies and the Offices of Foreign-invested Shipping Companies.
(No.534 released in 10/0 [1999])
All provinces, autonomous regions, municipalities directly under the central government and cities under separate state planning (commissions, offices and bureaus) and the Administration for Industry and Commerce:
In order to strengthen the management of resident representative offices of foreign enterprises, the State Council issued the Interim Provisions on the Administration of Resident Representative Offices of Foreign Enterprises on 1980, the State Administration for Industry and Commerce promulgated the Measures for the Administration of Registration of Resident Representative Offices of Foreign Enterprises on 1983 with the approval of the State Council, and the Ministry of Communications revised and promulgated the Measures for the Administration of Resident Representative Offices of Foreign Waterway Transport Enterprises on 1997. In recent years, the representative offices set up by overseas airlines in China have played an active role in contacting customers, understanding the market and providing relevant business consulting and services for foreign businessmen in China. However, at the same time, there are also some problems, such as: illegal direct or disguised operation; Set up a representative office in the name of "freight forwarder" to avoid the management of the transportation department; The offices set up by foreign-invested shipping companies provide services for overseas companies; Attract customers, compete for goods, etc. Through improper means. These illegal acts have caused chaos in China's foreign trade cargo transportation, disrupted the normal order of the international shipping market and adversely affected the healthy development of China's shipping market.
In order to strengthen and improve the management of resident representative offices of overseas airlines and offices of foreign-invested shipping companies, we hereby notify you as follows:
1. According to the Interim Provisions on the Administration of Resident Representative Offices of Foreign Enterprises promulgated by the State Council, all overseas shipping companies and agents engaged in the shipping industry and shipping agency industry must report to the Ministry of Communications for approval in accordance with relevant regulations when establishing a resident representative office in China. The applicant shall go through the registration formalities with the administrative department for industry and commerce with the approval documents of the Ministry of Communications.
2. Where the name of an overseas company contains such contents as "shipping", "shipping agency", "ship" and "port", a resident representative office may not be established in the name of "trader", "investor" or "freight forwarder". No matter what name the above-mentioned overseas companies set up their resident representative offices, they must obtain the approval of the Ministry of Communications in accordance with relevant regulations.
The resident representative offices of overseas airlines established with the approval of other relevant government departments before the issuance of this notice but not approved by the Ministry of Communications shall report to the Ministry of Communications and apply to the Ministry of Communications for examination and approval according to the prescribed procedures before the expiration; Without the approval of the Ministry of Communications, the administrative department for industry and commerce will no longer handle the extension formalities for it.
Three, from the date of this notice, where foreign-invested shipping companies set up offices, should be reported to the Ministry of communications for approval. Without the approval of the Ministry of Communications, the administrative department for industry and commerce shall not register. Foreign-invested shipping companies that have set up offices before the promulgation of this notice shall file with the Ministry of Communications.
Four, the resident representative office can only provide consulting, liaison, publicity and other non-operating business for the relevant business of the dispatched company in China. The following acts of the resident representative office are illegal and should be stopped, and the parties concerned should be punished according to the relevant provisions:
(a) engaging in the collection of goods and accepting the booking of shipping space;
(2) Opening an operating account to collect freight or operating expenses;
(3) Issuing the company's ocean bill of lading or multimodal bill of lading;
(4) Signing service contracts with customers on behalf of overseas companies;
(5) Issuing bills of overseas companies in China.
Five, provinces, autonomous regions and municipalities directly under the central government, the transportation departments and administrative departments for industry and commerce shall, according to the spirit of this notice, combined with local conditions, before the end of this year, respectively or jointly to the overseas shipping company's permanent representative offices and offices of foreign-invested shipping companies for a clean-up, focusing on the inspection of their illegal operations, and the clean-up situation were reported to the Ministry of Communications and the State Administration for Industry and Commerce.
Annex 2: Reply of the State Administration for Industry and Commerce on the definition of branch in the first paragraph of Article 35 of the Regulations on the Administration of Registration of Enterprise Legal Persons in People's Republic of China (PRC).
Industrial and Commercial Enterprise Zi [1997] No.222
Liaoning Provincial Administration for Industry and Commerce:
Your request for instructions from Benxi Administration for Industry and Commerce on the definition of branch in the first paragraph of Article 35 of the Regulations on the Administration of Registration of Enterprise Legal Persons in People's Republic of China (PRC) (No.38 [1997]) has been received. According to the provisions of Article 38 of the Regulations of People's Republic of China (PRC) Municipality on the Administration of Enterprise Legal Person Registration (hereinafter referred to as the Regulations), we hereby reply as follows:
1. The term "branch" as mentioned in the first paragraph of Article 35 of the Regulations refers to an economic organization invested and established by an enterprise as a legal person, which has a fixed business place, directly engages in business activities in its own name, does not have legal person status, and its civil liability is borne by its subordinate enterprise as a legal person.
2. An enterprise as a legal person shall apply for change registration and industrial and commercial registration in accordance with Articles 17 and 35 of the Regulations and the Detailed Rules for the Implementation of the Regulations on the Administration of Registration of Enterprise as a Legal Person in People's Republic of China (PRC) (hereinafter referred to as the Detailed Rules). A branch may engage in business activities only after obtaining a business license. Those who engage in business activities in the name of branches without approval and registration may be punished in accordance with the provisions of Item 1 of Paragraph 1 of Article 30 of the Regulations and Item 1 of Paragraph 1 of Article 66 of the Implementation Rules.
3. According to the relevant laws and regulations of the state, branches, sub-branches, sub-branches, business departments, savings offices, etc. established by commercial banks and credit cooperatives according to law are all branches, and they can only engage in business activities after going through industrial and commercial registration in accordance with the above provisions. In this regard, on March 5th and July 4th, our bureau respectively gave Guangdong Administration for Industry and Commerce and Liaoning Administration for Industry and Commerce a reply of 1997 (to Guangdong Administration for Industry and Commerce [1996] No.416), and to Liaoning Administration for Industry and Commerce [1997] No.
1September 2, 997
Annex 3: the State Council Legislative Affairs Office's Reply to the Letter on the Application of the Administrative Licensing Law of People's Republic of China (PRC).
(Promulgated on August 2, 2004 by the State Council Legislative Affairs Office Document No.293 [2004], and effective as of the date of promulgation)
General Administration of Press and Publication:
Your letter on the application of the Administrative Licensing Law of People's Republic of China (PRC) (Guo Han [2004] No.759) has been received. After study, we hereby reply as follows for your reference:
1. The specific administrative organ for citizens, legal persons or other organizations to apply for administrative license shall be determined according to the specific administrative licensing matters, the laws, administrative regulations and other relevant provisions for establishing administrative license.
Two, the provisions of laws and administrative regulations to obtain the relevant administrative license conditions and standards should be unified throughout the country. As long as the scope of application of the administrative license obtained by the applicant is not restricted according to law, and the licensee obtains the administrative license in one place, it can engage in licensing activities nationwide without applying for the same administrative license or administrative license with the same purpose in other places. For example, after a construction enterprise is legally registered in a certain place and obtains a business license, it can participate in bidding and undertake construction projects nationwide, without having to re-apply for registration and apply for a business license elsewhere. However, an enterprise legally established in a certain place that intends to set up branches or invest in the establishment of an independent accounting legal person in other places for the convenience of production and business activities shall apply for registration and obtain a business license in accordance with the provisions of relevant laws and administrative regulations.
3. Article 41 of the Administrative Licensing Law stipulates that if the scope of application of an administrative license set by laws and administrative regulations is not restricted by regions, the administrative license obtained by the applicant shall be valid nationwide. Accordingly, if the administrative license has geographical restrictions, the decision made by the administrative organ to grant the administrative license shall clearly stipulate the scope of application of the administrative license. For example, if a citizen, legal person or other organization applies for water, the administrative licensing decision of the administrative organ shall specify the quantity and place of water intake, and the licensee can only take water at that place.
Four, according to the provisions of the first paragraph of Article 15 of the "Administrative Licensing Law", for matters that can be set up in accordance with the law, administrative licensing has been set up by laws and administrative regulations, local regulations or rules can only make specific provisions on how to implement administrative licensing, and no administrative licensing can be set up.
Five, the local laws and regulations on the scope of application of the administrative license set by no geographical restrictions, the administrative license obtained by the applicant is valid in the administrative area.
Six, according to the provisions of Article 64 of the Administrative Licensing Law, if a licensee engages in administrative licensing activities outside the jurisdiction of the administrative organ that made the decision on administrative licensing, the administrative organ where the illegal act occurred shall investigate and handle it according to law, and send a copy of the licensee's illegal facts and handling results to the administrative organ that made the decision on administrative licensing.
Seven, the laws and administrative regulations formulated before the implementation of the administrative licensing law set administrative licensing, and some did not stipulate the conditions of administrative licensing. In order to implement the relevant administrative license, the specific provisions of the Regulations on the conditions of administrative license, according to the relevant provisions of the Decision of the State Council Municipality on Establishing Administrative License for Administrative Examination and Approval Items that Really Need to Be Retained (the State Council Order No.412), do not belong to "adding other conditions that violate the superior law" as stipulated in the fourth paragraph of Article 16 of the Administrative License Law. When formulating or amending relevant laws and administrative regulations after the implementation of the administrative licensing law on July 1 day, the conditions of administrative licensing shall be clearly stipulated in accordance with the requirements of Article 18 of the administrative licensing law.
Attachment: Letter from the General Administration of Press and Publication on the Application of the Administrative Licensing Law of People's Republic of China (PRC).
(New Regulation [2004] No.759, June 6, 2004, 5438+08)
Legislative Affairs Office of the State Council:
With the implementation of the Administrative Licensing Law of People's Republic of China (PRC) approaching, our department has been receiving requests from some local press and publication bureaus about the specific application of this law. I will sort out the problems, please explain now:
1. Where do citizens, legal persons or other organizations apply for permission set by laws and administrative regulations, to whom, and to the administrative department where the applicant is located? Or apply to the administrative department of the domicile of the proposed employer?
Second, what is the specific meaning of "national effectiveness"? Generally speaking, after a citizen, legal person or other organization has obtained the license set by laws and administrative regulations, there are about three situations in which he engages in licensing behavior in different places:
1. Send people to carry out activities temporarily;
2. Set up branches in different places to carry out activities;
3. Invest in different places to set up independent accounting legal persons to carry out activities.
Does "national effectiveness" cover the above three situations?
3. How can the public or administrative departments identify whether a license is valid nationwide? Permits can generally be divided into approval documents or licenses. Does the approval document or permit need to be marked as "valid nationwide"? Or does not write the geographical scope mean that the country is effective?
Four, the license set by laws and administrative regulations, local regulations or rules have also been set, how to identify this license? Is it national or local?
5. Can it be analogized that the license set by the local regulations of provincial local people's congresses and the license obtained by the parties are valid throughout the province?
6. Does "not subject to geographical restrictions" mean that laws and administrative regulations must be clearly stipulated? If there is no provision, is it presumed to be "without geographical restrictions"?
7. How to deal with the contradiction between "national effectiveness" and regional jurisdiction? For example, a legitimate press and publication unit in province A can set up a branch in province B to carry out publishing activities, but according to the "national validity" regulation, it is not necessary to obtain permission from province B. Then, how can the press and publication administrative department in province B grasp the situation and manage it?
Eight. Article 16 of the Administrative Licensing Law stipulates that no other conditions that violate the superior law may be attached to the specific provisions of the regulations on administrative licensing conditions. However, some superior laws only stipulate administrative licensing matters and implementing agencies, and do not stipulate administrative licensing conditions. In this case, does the regulation specifically stipulate whether the conditions of administrative license belong to "adding other conditions that violate the superior law"?
Please specify.
Appendix 4: Reply of the State Administration for Industry and Commerce on the Administration of Registration of Enterprises Adding Business Sites (No.103 [2000] of Industrial and Commercial Enterprises)
Jiangsu Administration for Industry and Commerce:
Your request for instructions on whether to register an enterprise's additional business premises (No.28 [2000] of Suzhou Industry and Commerce) has been received. After study, the reply is as follows:
According to the Regulations on the Administration of Registration of Enterprise Legal Persons in People's Republic of China (PRC) (hereinafter referred to as the Regulations on the Administration of Enterprise Registration) and the Regulations on the Administration of Company Registration of the People's Republic of China (hereinafter referred to as the Regulations on the Administration of Company Registration), an enterprise legal person registered in accordance with the Regulations on the Administration of Enterprise Registration and a company registered in accordance with the Regulations on the Administration of Company Registration can only have one domicile. An enterprise legal person registered in accordance with the Regulations on the Administration of Enterprise Registration shall establish or change its business premises, and shall register with the registration authority, and the number of business premises is unlimited; The "Regulations on the Administration of Company Registration" does not specify "business premises" as registered items. The business premises established by a company outside its domicile shall be registered according to its branches.
May 25(th), 2000
Annex 5: Reply of the State Administration for Industry and Commerce on Issues Related to Business Activities Outside the Residence of Enterprises (No.203 [2000] of the Administration for Industry and Commerce)
Promulgated on September 4, 2000, and repealed on June 23, 2006 as document [2006] 1 19.
Guangdong Provincial Administration for Industry and Commerce:
Your request for instructions on engaging in business activities in Shenzhen with a mainland business license (Shen Gong Shang Qi Zi [2000] 157) has been received. After study, the reply is as follows:
1. According to the Regulations on the Administration of Company Registration, the Regulations on the Administration of Enterprise Legal Person Registration, and the Reply of the State Administration for Industry and Commerce on Relevant Issues Concerning the Registration and Administration of Enterprises Adding Business Sites (Industrial and Commercial Enterprise Zi [2000]No. 103), there can only be one domicile for an enterprise legal person registered by the administrative department for industry and commerce, and the enterprise can use its own or rent it outside its domicile.
2. Where a company established in accordance with the Company Law and the Regulations on the Administration of Company Registration engages in business activities in a place other than its domicile, it shall apply to the company registration authority where the place is located for the registration of the establishment of a branch. Those who set up business activities without approval and registration shall be investigated and dealt with according to Article 32 of the Provisions on Several Issues concerning the Administration of Company Registration (Order No.83 of the State Administration for Industry and Commerce).
Three. An enterprise as a legal person registered in accordance with the Regulations on the Administration of Registration of Enterprise as a Legal Person and its detailed rules for implementation, which engages in business activities in places other than its domicile, shall handle relevant registration according to different situations:
1. An enterprise as a legal person may set up business premises or set up branches to engage in business activities within the jurisdiction of its registration authority. An enterprise as a legal person that handles the establishment of a business place shall apply to its registration authority for the change registration of adding a business place. After the registration authority approves the registration, it shall indicate the specific address of the business premises in its business license. Those who set up business activities without checking the accuracy of registration shall be investigated and dealt with according to Item (2) of Paragraph 1 of Article 30 of the Regulations on the Administration of Registration of Enterprise Legal Persons and Item (3) of Paragraph 1 of Article 66 of the Detailed Rules for the Implementation of the Regulations.
2. Where an enterprise as a legal person establishes a place to engage in business activities outside the jurisdiction of the registration authority, it shall apply to the enterprise registration authority where the place is located for industrial and commercial registration of the establishment of a branch in accordance with the registration procedures. Those who engage in business activities without approval shall be investigated and dealt with according to Item (1) of Paragraph 1 of Article 30 of the Regulations on the Administration of Registration of Enterprise Legal Persons and Item (1) of Paragraph 1 of Article 66 of the Detailed Rules for the Implementation of the Regulations.
3. An enterprise as a legal person registered in the State Administration for Industry and Commerce or the administrations for industry and commerce of provinces and autonomous regions, which set up a place to engage in business activities in the urban area where the administration for industry and commerce is located, may be handled according to the above item 1 or the above item 2; Where business activities are set up outside the urban area where the above-mentioned administration for industry and commerce is located, it shall be handled according to the above-mentioned second item.
4. If an enterprise rents other people's commercial counters and related business premises and facilities for business operation, it shall be recognized as establishing a branch according to the Measures for the Administration of Leased Counter Business Activities (Order No.67 of the State Administration for Industry and Commerce), and apply for industrial and commercial registration with the administrative department for industry and commerce where the lessor is located.
5. According to the principle of "Reply of the State Administration for Industry and Commerce on Relevant Issues Concerning Enterprise Legal Persons Engaging in Business Activities in Different Places with the Business License of the Original Registration Authority" (Industrial and Commercial Enterprise Zi No.233 [1996]), an enterprise legal person can engage in business activities in different places in its own name, and it is not treated as "operating without a license".