Who shall enjoy and bear the rights and obligations when an enterprise legal person is divided, merged or undergoes other important changes
Article 44 of the "General Principles of the Civil Law" stipulates that when an enterprise legal person is divided, merged or undergoes other important changes, Any changes in other important matters shall be registered with the registration authority and announced. When an enterprise legal person is divided or merged, its rights and obligations will be enjoyed and borne by the changed legal person.
The "Company Law" stipulates that when a company merges, the claims and debts of the merging parties shall be inherited by the company that survives the merger or the newly established company. The debts incurred before the company is divided shall be jointly and severally liable by the company after the division. However, this shall not be the case unless otherwise agreed upon in a written agreement between the company and its creditors regarding debt settlement before the division. Whether the rights and obligations are transferred after the merger or division of a legal person?
The "Contract Law" stipulates that if the parties merge after entering into a contract, the merged legal person or other organization shall exercise the contract rights and perform the contract obligations. If the parties separate after entering into a contract, unless otherwise agreed upon by the creditor and debtor, the separated legal person or other organization shall have joint claims and bear joint and several debts for the rights and obligations of the contract.
The "Contract Law" stipulates that if the parties merge after entering into a contract, the merged legal person or other organization shall exercise the contract rights and perform the contract obligations. If the parties separate after entering into a contract, unless otherwise agreed by the creditor and debtor, the separated legal person or other organization shall have joint claims and bear joint and several debts for the rights and obligations of the contract.
Extension:
Merger refers to the merger of two or more existing legal persons or other organizations into one legal person or other organization. Mergers are divided into absorption mergers and new establishment mergers. The contractual rights and obligations of the legal person or other organization before the merger are transferred to the legal person or other organization after the merger.
Split means that a legal person or other organization is divided into multiple legal persons or other organizations. The original legal person or other organization can be dissolved and divided into multiple legal persons or other organizations, or it can continue to exist and new legal persons or other organizations are derived from it. Unless otherwise agreed, the legal person or other organization after division has the right to accept the debtor's performance of all or part of the debt, and is also obliged to perform all or part of the debt at the request of the creditor. After a legal person or other organization changes or terminates due to corporate merger, corporate bankruptcy or other reasons, its copyright shall be enjoyed by ().
D. The Supreme Court’s interpretation of the Copyright Law has clear provisions.
Furthermore, item D is the most comprehensive. Rights and Obligations of Enterprise Shareholders and Legal Persons
In a company, shareholders enjoy the following rights:
(1) Participate in shareholders’ meetings and exercise voting rights in proportion to their capital contribution;
(2) Elect and be elected as members of the Board of Directors and the Supervisory Board;
(3) Review the minutes of shareholders’ meetings and the company’s financial accounting reports in order to supervise the company’s operations;
(4) ) Dividends are distributed according to the proportion of capital contribution, that is, shareholders enjoy beneficial rights;
(5) Transfer capital contributions in accordance with the law;
(6) Priority in purchasing capital contributions transferred by other shareholders;
(7) Preferential subscription for the company’s new capital;
(8) After the company is terminated, the remaining property of the company shall be distributed in accordance with the law. In addition, shareholders can also enjoy other rights stipulated in the company's articles of association.
Shareholders also bear the following obligations:
(1) Pay the capital contribution subscribed;
(2) Bear liability to the company to the extent of their capital contribution ;
(3) After the company is established and registered, the capital contribution shall not be withdrawn;
(4) Other obligations stipulated in the company's articles of association, that is, the company's articles of association shall be observed and the obligations stipulated in the company's articles of association shall be observed. .
The "General Principles of Civil Law" stipulates: "In accordance with the provisions of the law or the articles of association of a legal person, the person in charge who exercises authority on behalf of the legal person is the legal representative of the legal person." This means that as the legal representative, he must be a legal person. The person in charge can exercise authority on behalf of the legal person. The legal representative can be the director or manager of the factory, or the chairman or chairman of the board of directors. This mainly depends on the provisions of the law or the articles of association.
The legal representative represents the interests of the enterprise as a legal person and exercises the rights of the legal person in accordance with the will of the legal person.
The legal representative is responsible for organizing and leading production and business activities within the enterprise; representing the enterprise externally, he has full authority to handle all civil activities.
The power of the legal representative is conferred by the legal person, and the legal person shall bear civil liability for the normal activities of the legal representative. However, if the representative's behavior exceeds the scope of rights granted by the legal person, the legal person may bear responsibility for the rights and obligations of the enterprise as a legal person
The "General Principles of Civil Law" stipulates: "In accordance with the provisions of the law or the articles of association of the legal person, the legal person may exercise responsibility on behalf of the legal person." The person in charge of the authority is the legal representative of the legal person. This means that the legal representative must be the person in charge of the legal person organization and be able to exercise authority on behalf of the legal person. The legal representative can be the director or manager of the factory, or the chairman or chairman of the board of directors. This mainly depends on the provisions of the law or the articles of association.
The legal representative represents the interests of the enterprise as a legal person and exercises the rights of the legal person in accordance with the will of the legal person. The legal representative is responsible for organizing and leading production and business activities within the enterprise; representing the enterprise externally, he has full authority to handle all civil activities.
The power of the legal representative is conferred by the legal person, and the legal person shall bear civil liability for the normal activities of the legal representative. However, if the representative's behavior exceeds the scope of rights granted by the legal person, the legal person may bear liability
A few more sentences: Legal representatives and legal representatives are two different legal concepts, and some litigants often It will confuse the meaning of the two. There is a difference between them.
1. The concepts of the two are different: a legal representative generally refers to a person who holds a certain position according to the internal regulations of the legal person or is appointed by the legal representative to represent the legal person to perform civil rights and obligations externally in accordance with the law. It is not an independent person. legal concept. The legal representative is a definite legal concept. It refers to the person in charge who exercises authority on behalf of the legal person in accordance with the law or the articles of association of the legal person. He is the legal representative of the legal person. If there is no official position, the deputy person in charge of the work shall serve as the legal representative. The representative is a legal person with a board of directors, and the chairman of the board is the legal representative. For a legal person without a chairman, the person in charge authorized by the board of directors can serve as the legal representative of the legal person.
2. The two methods of creation are different: the legal representative is created according to the authorization of the legal representative. Without the authorization of the legal representative, the legal representative cannot be created, while the legal representative is appointed by the superior or by the superior in accordance with the law. They are elected by the corporate authority in accordance with legal procedures.
3. The two numbers of persons are different: a legal person, as the subject of civil rights, can have multiple legal representatives, while a legal person has only one legal representative to independently exercise its powers on behalf of the legal person.
4. The powers of the two are different: the legal representative's external exercise of power is restricted by the authorization of the legal representative. He can only carry out activities on behalf of the legal person within the scope of duties authorized by the legal representative. His An act is not an action of the legal person itself, but has a direct legal effect on the legal person; and the legal representative has the right to directly represent the legal person to externally exercise its powers within the scope of powers stipulated by the law.
5. The legal procedures for changes between the two are different: there is no certain procedure for the change of a legal representative, and he does not need to register; while the legal representative is one of the matters that a legal person should register, which is required by law. After going through the procedures, if there is any change, the registration procedures for changing the legal representative should be completed in a timely manner.
The chairman of the board of directors must be a shareholder, and the selection method of the chairman of the board of directors and vice-chairman of the board of directors shall be stipulated in the company's articles of association.
In accordance with the provisions of the company's articles of association, the legal representative of the company is the chairman, executive director or manager, and is registered in accordance with the law. He does not necessarily have to be a shareholder.
After the corporate legal representative is changed, who will bear the previous company debts?
First, the company has an independent personality. Under normal circumstances, the rights and obligations of the company's external actions are borne by the company, and the legal representative is not the subject (except for those who have jointly and severally guaranteed the relevant contracts).
Second, changes in shareholders and legal representatives do not affect the company's independence. The company continues to exist and the way in which rights and obligations are assumed remains unchanged.
Third, whether you personally need to bear responsibility depends on the contract. If there is no agreement and you have no circumstances to blame, it has nothing to do with you. The difference between a legal person and a person who enjoys legal rights and obligations
1. A legal person is relative to a natural person.
Natural persons refer to all living persons, including citizens and non-citizens (foreigners); legal persons refer to organizations that enjoy civil rights and capacity for civil conduct and can independently bear civil liabilities, including companies, corporate legal persons, Institutional legal persons, social group legal persons, etc.
2. Legal persons are compared to other organizations.
According to Article 40 of the "Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China", other organizations refer to legally established organizations with certain organizational structures and property , but do not have legal person qualifications, include:
(1) Private proprietorships and partnerships that have registered and received business licenses in accordance with the law;
(2) Registered and received business licenses in accordance with the law Partnership-type joint ventures;
(3) Sino-foreign cooperative enterprises and foreign-funded enterprises registered and obtained business licenses in my country in accordance with the law;
(4) Registered and obtained social group registration with the approval of the civil affairs department Certified social organizations;
(5) Branches established by legal persons in accordance with the law and obtaining business licenses;
(6) Branches of the People's Bank of China and various professional banks located in various places;
(7) Branches of the People’s Insurance Company of China in various places;
(8) Township, street, and village-run enterprises that have been approved and registered to obtain business licenses;
(9) Other organizations that meet the conditions specified in this article.
3. Back to the topic:
The relationship between legal persons and persons enjoying legal rights and obligations is an included and included relationship, that is, persons enjoying legal rights and obligations include legal persons and other organizations. and natural persons. What responsibilities and rights should corporate legal persons bear?
The following is the discussion on corporate legal persons in the General Principles of the People's Republic of China and Civil Law
Section 2 Corporate Legal Persons
Article 41
p>Enterprises owned by the whole people and collectively owned enterprises must have an amount of capital that complies with national regulations, have organizational articles, organizational structure and premises, be able to independently bear civil liabilities, be approved and registered by the competent authority, and obtain legal person status.
Sino-foreign joint ventures, Sino-foreign contractual joint ventures and foreign-invested enterprises established within the territory of the People's Republic of China, which meet the qualifications of legal persons, must be approved and registered by the industrial and commercial administration authorities in accordance with the law, and obtain Chinese legal person qualifications .
Article 42 Enterprise legal persons shall engage in business within the approved and registered business scope.
Article 43 An enterprise legal person shall bear civil liability for the business activities of its legal representative and other staff.
Article 44 If an enterprise legal person is divided or merged or has other important changes, it shall be registered with the registration authority and announced.
When an enterprise legal person is divided or merged, its rights and obligations will be enjoyed and borne by the changed legal person.
Article 45 An enterprise legal person is terminated due to one of the following reasons:
(1) It is revoked in accordance with the law;
(2) It is dissolved;
(3) Declaration of bankruptcy in accordance with the law;
(4) Other reasons.
Article 46 When an enterprise legal person is terminated, it shall apply for deregistration to the registration authority and make an announcement.
Article 47
When an enterprise legal person is dissolved, a liquidation organization shall be established to carry out liquidation. If an enterprise legal person is revoked or declared bankrupt, the competent authority or the people's court shall organize relevant agencies and relevant personnel to establish a liquidation organization and conduct liquidation.
Article 48
A legal person owned by the whole people shall bear civil liability with the property authorized by the state for its operation and management. Collectively owned enterprise legal persons shall bear civil liability with the property owned by the enterprise. Legal persons of Sino-foreign joint ventures, legal persons of Sino-foreign contractual joint ventures and legal persons of foreign-invested enterprises shall bear civil liability with the property owned by the enterprise, unless otherwise provided by law.
Article 49 If an enterprise legal person has any of the following circumstances, in addition to the legal person's liability, the legal representative may be given administrative sanctions and fines. If a crime is constituted, criminal liability shall be pursued in accordance with the law:
(1) Engaging in illegal business beyond the business scope approved and registered by the registration authority;
(2) Concealing the true situation and committing fraud to the registration authority and tax authorities;
(3) Escape funds and conceal property to avoid debts;
(4) Dispose of property without authorization after being dissolved, revoked, or declared bankrupt;
(5) Change and termination Failure to apply for registration and announcement in a timely manner, causing interested parties to suffer heavy losses;
(6) Engaging in other activities prohibited by law, harming national interests or the interests of the public. Assumption of responsibilities after the division of legal persons
Article 177 of the "Company Law (2005)": The debts of the company before the division are jointly and severally borne by the company after the division. However, this shall not be the case unless otherwise agreed upon in a written agreement between the company and its creditors regarding debt settlement before the division.
C and D’s own agreement cannot be used against the creditor without the creditor’s consent. After Company D bears the responsibility, it can recover compensation from Company C according to the agreement. After the corporate legal person is changed, does the patent need to be changed?
The change procedures must be completed.
"Implementing Rules for the Patent Law of the People's Republic of China"
Article 14
Except for the transfer of patent rights in accordance with Article 10 of the Patent Law , if the patent right is transferred due to other reasons, the party concerned shall go through the patent right transfer procedures with the patent administration department of the State Council with relevant certification documents or legal documents.
A patent license contract concluded between a patentee and another person shall be filed with the patent administration department of the State Council within 3 months from the effective date of the contract.
If the patent right is pledged, the pledger and the pledgee *** shall handle the registration of the pledge with the Patent Administration Department of the State Council at the same time.