First, if the identity card is used fraudulently, registering a company may bring legal risks to the parties involved.
1. The parties will be restricted when they really want to establish a one-person limited liability company. According to Article 58 of the Company Law, a natural person can only invest in the establishment of a one-person limited liability company. A one-person limited liability company cannot invest in the establishment of a new one-person limited liability company. Therefore, if the identity card is used by others to register a company, but the party concerned really wants to invest his own money to establish a one-person limited liability company, he will be restricted and cannot be established, which will bring a lot of trouble to the fraudster.
2. Can bear joint liability for the company’s debts. According to the provisions of the "Supreme People's Court's Provisions on Several Issues Concerning the Application of the Company Law of the People's Republic of China" (2), if the company's assets are insufficient to pay off debts, the creditor claims that the shareholders who have not paid the debt are in conflict with other shareholders or promoters at the time of the company's establishment. If the company is jointly and severally liable for the debts of the company within the scope of the unpaid capital contribution, the people's court shall support it in accordance with the law. At the same time, according to Article 63 of the "Company Law", shareholders of a one-person limited liability company cannot prove that the company's property is independent of the shareholder's own property, they shall bear joint liability for the company's debts. Therefore, under the subscription system for registered companies, if the fraudster only establishes the company by subscription but fails to contribute capital, or the company's property management is in chaos, the fraudster may be jointly and severally liable for the company's debts.
Although Article 29 of the Supreme People's Court's "Provisions on Several Issues Concerning the Application of the Company Law of the People's Republic of China (3)" stipulates that fraudulently making capital contributions in the name of another person and registering that person with the company registration authority If a shareholder is registered as a shareholder, the person who registered under a false name shall bear corresponding responsibilities; if the company, other shareholders or creditors of the company require the shareholder registered under a false name to bear the responsibility for making up the capital contribution or compensating for the unpaid portion of the company's debts on the grounds of failure to perform capital contribution obligations, The People's Court did not support it. However, company registration has been approved by the administrative department and has the effect of legal publicity. If the identity is not corrected or confirmed by the relevant departments, the defrauded person will still be at risk of incurring debts.
3. You may be subject to administrative penalties from the industrial and commercial administration department. According to Article 65 of the "Company Registration and Management Regulations of the People's Republic of China", if a company's promoters or shareholders make false capital contributions, fail to deliver or fail to deliver monetary or non-monetary property as capital contributions on time, the company registration authority shall order corrections and impose a penalty for false capital contributions. A fine of more than 5 yuan and less than 5 yuan shall be imposed. Therefore, if a fraudster falsely contributes capital, fails to deliver capital, or fails to contribute capital on time, the industrial and commercial administration department may impose administrative penalties.
2. If the identity information of a registered company is used fraudulently, how can I protect my rights?
Since using an ID card to register a company will bring such great legal risks, how should you protect your rights if you find that your ID card has been used to register a company? We believe that we can protect our rights and interests from the following aspects:
__1. Before obtaining relevant evidence, report the case to the public security organ. If the infringer's behavior causes economic losses to fraudulent users or harms public interests, the infringer may be suspected of committing a crime and may be investigated by the public security organs in accordance with the law. Main legal basis:
(1) According to Article 251 of the Criminal Law, in violation of relevant national regulations, a citizen’s personal information is sold or provided to others, and the circumstances are serious; selling or providing it to others Citizens’ personal information obtained in the course of performing duties or providing services; stealing or otherwise illegally obtaining citizens’ personal information may be suspected of the crime of infringement of citizens’ personal information.
(2) According to Article 280 of the "Criminal Law", anyone who forges, alters or buys or sells resident identity cards, passports, social security cards, driver's licenses and other documents that can prove identity according to law shall be punished with three A person shall be sentenced to fixed-term imprisonment of not less than 1 year, criminal detention, public surveillance or deprivation of political rights, and shall also be fined; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be fined.
(3) According to Article 281 of the "Criminal Law", in activities that require proof of identity according to national regulations, use forged, altered or stolen other people's resident identity cards, passports, Social security cards, driver's licenses and other documents that can prove identity according to law. If the circumstances are serious, they will be sentenced to criminal detention or surveillance, and they will also be fined or alone. "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Citizens' Personal Information" came into effect on June 1, 2065 (Legal Home Mander Enterprise Note): "Serious circumstances" include illegal acquisition and sale Or provide more than 50 pieces of trajectory information, communication content, credit information, property information; illegally obtain, sell or provide more than 500 pieces of personal information of citizens such as accommodation information, communication records, health and physiological information, transaction information, etc., which may affect personal, The property is safe; illegally obtains, sells or provides more than 5,000 pieces of personal information of citizens other than those specified in the previous two paragraphs; illegal gains exceed 5,000 yuan.
__2. Complain to the industrial and commercial administration department and request the industrial and commercial administration department to revoke the administrative license and company registration. Main legal basis:
(1) Article 198 of the "Company Law of the People's Republic of China" stipulates that in violation of the provisions of this law, falsely declare registered capital, submit false materials or use other fraudulent means to conceal important facts If a company is registered, the company registration authority shall order it to make corrections and impose a fine of not less than RMB 5 and not more than RMB 15 of the company's registered capital on a company that falsely declares its registered capital; those who submit false materials or use other fraudulent means to conceal important facts will be fined not less than RMB 50,000 but not more than RMB 500,000. The following fines shall be imposed; if the circumstances are serious, the company registration or business license shall be revoked.
(2) According to Article 65 of the "Regulations of the People's Republic of China on Company Registration Administration", who submits false materials or conceals important facts by other fraudulent means to register a company, the company registration authority shall order corrections and impose a fine A fine of not less than 50,000 yuan but not more than 500,000 yuan may be imposed; if the circumstances are serious, the company registration or business license may be revoked.
(3) According to Article 63 of the "Regulations of the People's Republic of China on the Registration and Administration of Enterprise Legal Persons", whoever forges documents to obtain a business license shall have his illegal gains confiscated and shall be fined not more than three times the illegal gains, but the maximum It shall not exceed 30,000 yuan. Illegal gains will be confiscated, a fine of less than 10,000 yuan will be imposed, and the business license will be revoked.
__3. The administrative act of registering the company by the industrial and commercial department is illegal and damages the legitimate rights and interests of the infringed party. An administrative lawsuit is filed with the industrial and commercial department and the industrial and commercial department is requested to revoke the company registration administrative license. Main legal basis:
(1) According to Article 69 of the "Administrative Licensing Law of the People's Republic of China", under any of the following circumstances, the administrative agency that made the administrative licensing decision or its superior administrative agency may Revoking an administrative license at the request of an interested party or ex officio: If the licensee obtains an administrative license by deception, bribery or other improper means, it shall be revoked.
(2) According to Article 70 of the "Administrative Litigation Law of the People's Republic of China", if an administrative act falls under any of the following circumstances, the people's court shall rule to revoke or partially revoke it, or order the defendant to make a new administrative act. Behavior:
(1) Insufficient main evidence;
(2) Wrong application of laws and regulations;
(3) Violation of legal procedures;
(4) Exceeding authority;
(5) Abusing power for personal gain;
(6) Obviously inappropriate.
__4. File a civil lawsuit with the actual infringers, that is, investors, registered institutions, and registered companies as defendants, demanding that the infringement be stopped, the impact eliminated, and losses compensated.
Main legal basis:
(1) Paragraph 1 of Article 99 of the "General Principles of the Civil Law of the People's Republic of China" stipulates that "Citizens enjoy the right to their own names and have the right to decide, use and change their names in accordance with regulations. , prohibit others from interfering, misappropriating, and counterfeiting." Citizens' right to name is protected by law. Citizens have the right to their names, and others are prohibited from interfering, misappropriating or counterfeiting.
(2) Article 134 of the "General Principles of the Civil Law of the People's Republic of China" stipulates that the main ways to bear civil liability include: stopping the infringement; removing obstacles; eliminating dangers; returning property; restoring to original condition; repairing , rework and replacement; compensation for losses; payment of liquidated damages; elimination of impact, restoration of reputation; apology. The above methods of bearing civil liability can be applied individually or in combination.
(3) Article 2 of the "Tort Liability Law of the People's Republic of China" stipulates that anyone who infringes upon civil rights and interests shall bear tort liability in accordance with this law. The civil rights and interests mentioned in this Law include the right to life, health, name, reputation, honor, portrait, privacy, marital autonomy, custody, ownership, usufruct rights, security rights, copyrights, patent rights, Personal rights and property rights such as trademark exclusive rights, discovery rights, equity rights, inheritance rights, etc.
(4) Article 15 of the "Tort Liability Law of the People's Republic of China" stipulates that the ways to bear infringement liability mainly include:
(1) Stop the infringement;
(2) Remove obstacles;
(3) Eliminate dangers;
(4) Return property;
(5) Restore the original status;
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(6) Compensate for losses;
(7) Apologize;
(8) Eliminate the impact and restore reputation.
The above tort liability methods can be applied individually or in combination.
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