On May 1, 2007, the "Commercial Franchise Management Regulations" (hereinafter referred to as the "Regulations") were officially implemented, marking that my country's commercial franchises are moving towards scale, standardization and legalization. The compulsory filing system stipulated in the "Regulations" is an important supervision content for commercial franchise enterprises. If a franchise enterprise fails to register in accordance with the provisions of the "Regulations", it may not only be subject to administrative penalties (maximum fines) from the administrative authorities 100,000), it is also possible that the validity of the franchise contract may even affect the normal operation of the franchise enterprise. Therefore, franchised companies must attach great importance to the issue of registration. However, the registration system is a new thing. Many franchise companies do not understand the provisions of this system, have deviations in their understanding and understanding, and do not know how to handle the registration procedures. The author based on the "Regulations" and the "Commercial Franchise Registration Management Measures" " (hereinafter referred to as the "Measures"), combined with the usual experience in handling franchise enterprise registration, introduces how to register franchise enterprises.
Franchising is a contractual act in nature, and engaging in franchise activities is the civil rights of the parties. It is not appropriate for the government to impose administrative approval controls on it, but it needs to carry out necessary supervision and management of its business activities to maintain market order. , protect the legitimate rights and interests of the parties. In view of this, the Regulations establish a franchisor registration system, requiring franchisors engaged in commercial franchises to register in accordance with the law.
Requiring the franchisor to register has three main functions: first, it facilitates the commercial authorities to understand and grasp the relevant situation of the franchisor in a timely manner, and regulate and supervise the franchise activities in a targeted manner; second, it helps Potential investors can 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 of the franchisor.
Commercial franchise enterprises should pay attention to the following aspects when filing:
1. Scope of subjects for filing and registration
Article 3 of the Regulations Paragraph 2 of the Article stipulates: Units and individuals other than enterprises may not engage in franchise activities as franchisors. It can be seen from this provision that only enterprises can serve as franchisors of franchises. According to the regulations on enterprise registration management in my country, the only valid proof to confirm the identity of an enterprise is the enterprise business license issued by the industrial and commercial administration authority. Therefore, verifying the authenticity of an enterprise's business license has become the first priority in filing management.
2. Registered enterprises should comply with the "two stores for one year" requirement
Article 7, paragraph 2, of the "Regulations" stipulates: "The franchisor shall have At least 2 directly-operated stores, and the operating time is more than 1 year." This is commonly known as the “two stores a year” requirement. The main purpose is to prevent some companies from using franchises to commit fraud. At the same time, directly-operated stores have a certain demonstration effect, allowing other operators to intuitively understand the franchisor's brand, business model, operating conditions, etc. from the operation of directly-operated stores.
First of all, as the name implies, "directly operated stores" should refer to stores owned by the franchisor. Among them, "owning" should not only include wholly-owned ownership, but also include controlling ownership. In addition, considering the fine division of labor among enterprises in modern economic life, even different enterprises within the same group may have different divisions of labor --- some enterprises may only engage in business as franchisors, while others may be responsible for operations shop. Therefore, if the franchisor’s affiliates can meet the requirement of “two stores for one year”, we believe that it should be deemed that the franchisor itself has met the requirement of “two stores for one year”. Neither the "Regulations" nor the "Commercial Franchise Filing and Management Measures" define the meaning of "associated enterprises", but Article 3 of the "Commercial Franchise Information Disclosure Management Measures" provides relevant provisions: "Associated companies referred to in these Measures are Refers to the parent company of the franchisor, a subsidiary company in which the franchisor directly or indirectly owns all or a majority of the equity, or a company that directly or indirectly owns all or a majority of the equity with the franchisor."
We believe that this definition can be applied to determine whether the franchisor meets the "two stores for one year" requirement. That is to say, if a company that has a direct or indirect holding relationship with the franchisor meets the "two stores for one year" requirement, The franchisor shall be deemed to have satisfied this requirement.
Second, it should also be noted that the business of a directly operated store should be the same business operated under the same brand as the franchised business. For example, if the franchisor's directly-operated store is engaged in fast food service, but its franchise business is engaged in dry cleaning of clothes, obviously, the franchisor's directly-operated store cannot prove that the franchisor is engaged in the franchised business field (i.e., fast food). services) has established a mature operating model, which is not in line with the legislative intent of the “two stores a year” requirement. Therefore, the business operated by directly-operated stores must be the same as the franchised business in order to meet the "two stores per year" requirement.
Third, the brand of the directly-operated store must also be the same as the brand of the franchise business. Assume that the franchisor is engaged in the fast food business under Brand A and owns a number of fast food restaurants operating under Brand A, but the franchisor has never been engaged in the fast food business under Brand B. Then, since it takes time to prove the operating model and market prospects of a specific brand, if the franchisor intends to engage in fast food franchise business under brand B, it is not enough that the franchisor can successfully operate the fast food business under brand A. Just because the franchisor can successfully operate the fast food business under brand A does not mean that it can also establish a mature business model in the industry under brand B. Therefore, from the perspective of meeting the "two stores per year" requirement, directly operated stores should be operated under the same brand as the franchised business.
Fourth, a certification document issued by the districted municipal commerce department that complies with the provisions of Article 7, Paragraph 2 of the "Regulations"; if the directly-operated store is located overseas, the franchisor shall provide the direct-operated store Business certificate (including Chinese translation), notarized by the local notary agency and certified by the Chinese embassy or consulate in the local area. Franchisors who have engaged in franchise activities before May 1, 2007 are excluded, but the first franchise contract signed between the franchisor and the franchisee in China shall be submitted.
In addition, the operation for more than one year as stipulated in Paragraph 2 of Article 7 of the "Regulations" not only means that the enterprise should be established and operated for more than one year, but also the direct-operated stores it owns must be operated for one year. years and above.
3. Obtaining the registration number
The registration number is the only identity certificate for the franchisor to apply for registration through the Internet. After obtaining the registration number on the Ministry of Commerce registration system website, the franchisor enters the registration number and password, you can perform filing operations on the filing page, upload and modify files.
Through the issuance and acquisition of registration numbers, it is ensured that the franchisor can accept public supervision and the management of the registration authority in its own space, reducing uncertain security factors to a minimum.
Getting a registration number is only an identity review process before applying for filing. Just as an enterprise should go to the industrial and commercial administration authority to get a registration form before applying for registration, it is one of the preparations before filing and does not fall under the Regulations. The date on which the period specified in Article 9 begins. The formal application filing time shall be calculated from the date when the franchisor submits all documents and materials via the Internet after obtaining the registration number.
According to the provisions of Articles 43 and 63 of the "General Principles of Civil Law", the filing management agency has stipulated three ways to confirm identity in the filing system. One is the legal representative of the franchisor. Direct handling; second, the franchisor entrusts a natural person to handle the matter; third, the franchisor entrusts an association, legal institution and other intermediary organizations to handle the matter. According to different methods, in order to ensure the identity of the person in charge, based on the experience in judicial practice and relevant legal provisions, the supporting documents that need to be produced in different methods are proposed:
First, the legal representative of the franchisor If you apply directly, you need to bring: a copy of the original business license of the enterprise, a copy of the original ID card of the legal representative, the name of the franchisor, contact person, position of the contact person, telephone number, fax, address, postal code, and email address.
If you are unable to submit the original business license, you should hold the original document or other valid certificate that has been stamped with the official seal on the copy of the business license by the industry and commerce authority where the enterprise is located (commercial authorities, chain associations at or above the provincial level) Original document (such as a notarial certificate certifying that the copy is consistent with the original);
Secondly, if the franchisor authorizes other natural persons to handle the process, it should first review whether the authorization has passed the legal authorization procedures (including but not limited to notarization, etc. form) to confirm the authenticity of the power of attorney, and then require the trustee to bring: a copy of the original business license of the franchisor, the original power of attorney of the person entrusted by the franchisor, a copy of the original identity document of the legal representative, the trustee A copy of the original identity document, the franchisor’s name, contact person, contact person’s title, telephone number, fax, address, postal code, and email address.
If you are unable to submit the original business license, you should hold the original document or other valid certificate that has been stamped with the official seal on the copy of the business license by the industry and commerce authority where the enterprise is located (commercial authorities, chain associations at or above the provincial level) Original document (such as a notarized certificate certifying that the copy is consistent with the original);
Third, if the franchisor authorizes other intermediary organizations to handle the process, it should first review whether the authorization has passed the legal authorization procedures (including but not limited to notarization and other forms) to confirm the authenticity of the power of attorney, and then require the person in charge of the intermediary agency to bring: a copy of the franchisor's business license, the original power of attorney from the franchisor to the intermediary agency, and the business license of the corporate entity verified by the intermediary agency The original and copy of the identity document of its legal representative, the original copy of the qualification certificate of the intermediary agency and the original copy of the identity document of the person in charge, the name and contact person of the franchisor, the contact person's position and telephone number , fax, address, zip code, email address.
4. Filling in business resources
Franchising activities refer to enterprises that own registered trademarks, corporate logos, patents, proprietary technologies and other business resources, and transfer their owned business resources in the form of contracts. The business resources are licensed to other operators, and the franchisee carries out operations under a unified business model in accordance with the contract and pays franchise fees to the franchisor. Therefore, enterprises should report relevant operating resources when filing and registering.
First, notifications of acceptance of registered trademarks, patents, copyrights, etc. cannot be recognized as franchise resources alone, but should be filled in in conjunction with other resources to meet the requirements of legislation, and be filled in as registered trademarks have been accepted , patents, copyrights. In other words, franchise enterprises that only accept notices of registered trademarks, patents, copyrights, etc. do not meet the requirements for filing and cannot pass the filing.
Second, for the relevant copyright submitted for registration by the copyright authority, if it is a corporate logo copyright registration, the authorized content should be filled in as "corporate logo"; if it is a non-corporate logo copyright (business manual) , you should select "Other" when filling in the authorization content.
Third, in practice, the operating resources of many franchise enterprises are authorized or transferred by other natural persons, enterprises, and other organizations. If the use is authorized, a document authorized by the right holder or filed with the competent state agency must be filled in, and the authorization or filing should show that the franchised enterprise has the right to sublicense to a third party. For other foreign natural persons, enterprises, and other organizations whose rights holders are foreign, the power of attorney should be notarized by the local notary agency and authenticated by the Chinese embassy or consulate in the local area. If transfer of rights is involved, a transfer approval certificate issued by the competent state authority must be submitted.
Fourth, the scope of rights stated in the franchise enterprise’s business resource rights certificate or other supporting documents should be consistent with the actual business operations of the franchisor. For example, if the franchisor operates a restaurant, but the protected category of the franchisee's registered trademark is clothing, it is obviously inconsistent.
In addition, if the certificate of operating resource rights of a franchise enterprise is registered or issued by another country or region, it shall be in accordance with the relevant provisions of the bilateral agreement signed by our country with that country or the international convention to which China has jointly acceded. implement.
5. Submit PDF file
According to the provisions of Article 5, Paragraph 2 of the "Measures", (4) a copy of the corporate business license or other subject qualification certificates in the filing documents Copies; (5) Copies of registration certificates for trademark rights, patent rights and other business resources related to franchise activities; (6) Certificates issued by districted municipal commerce authorities that comply with Article 7, 2 of the Regulations Certification documents specified in the paragraph; if the directly-operated store is located overseas, the franchisor shall provide the direct-operated store business certificate (including Chinese translation), which shall be notarized by the local notary agency and certified by the Chinese embassy or consulate in the local area; (in May 2007 The provisions of the preceding paragraph shall not apply to franchisors who have engaged in franchising activities before the 1st, but shall submit the first franchise contract signed between the franchisor and the franchisee in China) (7) Franchise contract sample; (8) ) Contents of the franchise operations manual (the number of pages in each chapter and the total number of pages in the manual must be indicated, and for such manuals provided on the franchise system’s internal network, an estimated number of printed pages must be provided); (9) National laws and regulations stipulate that products and services that can only be franchised upon approval must submit approval documents from the relevant competent authorities; (10) Seven items including the franchisor's commitment signed and sealed by the legal representative. The filing system requires the franchisor to The electronic file format submitted during filing is uniformly specified as "portable file format" (i.e. PDF file), and the system does not accept other file formats. Therefore, this requires the franchisor to scan or photograph the submitted documents into the computer and create a PDF file.
6. Online registration application
The franchisor must log in to the enterprise login page of the "Commercial Franchise Information Management System": and enter the registration agency issuance in the "Enterprise Login" on the left Username, password, verification code, passwords are case-sensitive. After logging in for the first time, the system will force the user to change their password. The system will list the handler information entered when receiving the number for the user to check, and also enter the "Contact Mobile Phone Number". The system will automatically exit after clicking save.
After exiting, the system will jump directly to the login page. Directly enter the user name issued by the filing authority and the new password set in the above steps. The left side of the system will immediately prompt that the name of the franchisor is the filing applicant, that is The name of the franchisor's company, and also indicate the name of the filing authority, which is the Ministry of Commerce or the commercial administrative authority of the province, autonomous region or municipality directly under the Central Government. The filing status of the filing company displayed at this time is generally "unsubmitted" (there are also two statuses: declared and filed) , and the registration number is displayed as blank. The registration number will be displayed after the registration is passed.
Users can see all the submitted information, and can click "Save as word" to save the declaration form. After verification, they can also click "Declaration" to submit the application. At the same time, after the declaration, the registered enterprise The filing status is changed to "Declared". After that, users will no longer be able to modify the content of the application materials themselves.
7. Management after review, publication and filing by the competent commercial department
According to the provisions of Article 10 of the "Measures", the filing authority shall, after receiving a document submitted by the franchisor that complies with Article 5 of these Measures. The documents and materials specified in the Article shall be filed within 10 days from the date of filing and announced on the website of the Ministry of Commerce.
The above-mentioned starting time is calculated based on the date when the filing authority receives the online application materials from the franchisor applying for filing. If the information submitted by the franchisor does not meet the specified requirements, the filing authority will require the franchisor applying for filing to People are required to supplement relevant information within 7 days. If supplementary information is required, the starting time will be recalculated from the date the franchisor applying for registration submits the supplementary information.
According to the provisions of Article 14 of the "Measures", the public can inquire about the following content through the Ministry of Commerce government website: (1) The franchisor's corporate name and the registered trademark and corporate logo used in the franchise business , patents, proprietary technologies and other business resources; (2) the franchisor’s filing time; (3) the franchisor’s legal business location address and contact information, and the name of the legal representative; (4) the franchisee’s business address in China.
(Currently, only the franchisor's name, registration number, legal representative's name and registration time can be provided. Even if the telephone consultation is made, other items will not be provided)
After the franchisor completes the registration, during the operation period, Due to various reasons, the original filing materials may be changed. Therefore, Article 7 of the "Measures" stipulates that within 30 days after the filing materials are changed, an application for changes or modifications can be made through the "Filing Management" of the online filing management system. The agency will approve or reject the change application based on the franchisor's basic information and the content of the change application submitted by the enterprise to the filing department, and send it to the franchisor who applied for the change through the system. If the modification is approved, the franchisor can modify the information on the enterprise side. .
According to Article 11 of the "Measures": If a franchisor who has completed the registration has any of the following behaviors, the registration authority may revoke the registration and make an announcement on the website of the Ministry of Commerce: (1) Because the franchisor If the franchisor operates illegally, the business license will be revoked by the competent registration authority; (2) The filing authority receives a judicial recommendation from the judicial authority regarding the cancellation of the registration due to the illegal operation of the franchisor; (3) The franchisor conceals relevant information or provides false information. Verified to be true; (4) The franchisor cancels itself.
If the registration management agency finds that the above-mentioned situation occurs in a registered enterprise that has passed the registration, and after verifying the situation, it has the right to directly cancel the registration of the enterprise, notify the registered franchisor through the email reserved by the franchisor, and cancel the registered enterprise. be published in the directory.
The above regulations are to establish a completely open and transparent business notification system and ensure that smooth channels are opened for the public to choose and understand the franchisor and its projects.
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