According to the State Council's "Regulations on the Administration of Company Registration", "Regulations on the Administration of Enterprise Legal Person Registration" and other administrative regulations and the relevant provisions of the State Administration for Industry and Commerce, China's current business licenses are divided into the following categories:

1. 1988 business license and business license are mainly issued to the whole people (state-owned), collective and associated enterprises and their branches registered in accordance with the regulations on the administration of enterprise legal person registration; This version of the business license is also issued to private enterprises and private partnerships registered in accordance with the Provisional Regulations on Private Enterprises. 1988 version of the Business License for Enterprise as a Legal Person contains "enterprise name, domicile, legal representative, economic nature, business scope, mode of operation, registered capital, registration authority and registration number"; The main contents of the business license are: name, address, person in charge, economic nature, amount of funds, business scope, business mode, registration authority and registration number.

2. Version1994 of the Business License for Enterprise as a Legal Person and the Business License are issued to domestic limited liability companies, joint stock limited companies and their branches registered in accordance with the Regulations on the Administration of Company Registration. 1994 version of the Business License for Enterprise as a Legal Person contains "name, domicile, legal representative, registered capital, enterprise type, business scope, business term, registration number, date of establishment and registration authority"; The main contents of the business license are "name, business place, person in charge, business scope, registration number, date of establishment and registration authority".

The 3.200 1 version of the business license for enterprise legal person and the business license are issued to foreign-invested enterprises and their branches (excluding offices with the nature of branches), including Hong Kong, Macao and Taiwan-funded enterprises registered and managed with reference to foreign-invested enterprises (the same below). The contents of the 200 1 version of the Business License for Enterprise as a Legal Person are basically the same as those of the 1994 version, but the difference is that the 200 1 version of the Business License for Enterprise as a Legal Person has added a "branch" item called "business term". In practical application, the difference between version 200 1 and version 1994 lies in the number of registration numbers and enterprise types. Version 200 1 issued to foreign-invested enterprises, and the registration number shall be numbered by the authorization bureau in accordance with the provisions of the State Administration for Industry and Commerce. For enterprises registered by Hangzhou Administration for Industry and Commerce, the number of foreign-invested enterprises is "Zhejiang-Hangzhou Enterprise Independent ……"; Sino-foreign joint ventures are "Zhejiang-Hangzhou joint ventures ……"; Chinese-foreign cooperative enterprises are "Zhejiang-Hangzhou enterprises ...". On June 5438+February 1 day, 2000, Order No.96 of the State Administration for Industry and Commerce revised 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), and changed Article 39 of the Detailed Rules into Business License of Enterprise as a Legal Person in People's Republic of China (PRC) and Business License of People's Republic of China (PRC). On February 7, the same year, at 65438, the State Administration for Industry and Commerce issued the Notice on Doing a Good Job in Changing the Business License Format of Foreign-invested Enterprises, which clearly stipulated that the issuance of the 1995 version of the Business License of People's Republic of China (PRC) Enterprise as a Legal Person would be stopped from 2001. Therefore, People's Republic of China (PRC) Business License for Enterprise as a Legal Person and People's Republic of China (PRC) Business License have expired and become history.

4. Issue the 2006 Business License for Enterprise as a Legal Person and the Business License to domestic limited liability companies and joint stock limited companies and their branches. According to the notice of the State Administration for Industry and CommerceNo. 197 (June 5438+February, 2005) on four new versions of company registration licenses, the Business License for Enterprise as a Legal Person issued to domestic limited liability companies and joint stock limited companies has increased the item of "paid-in capital" compared with the version of 1994; "Legal representative" is changed to "legal representative's name"; Change "enterprise type" to "company type"; Delete "registration authority" and indicate the registration authority by affixing a seal. In the business license, delete "registration authority" and affix the seal of the registration authority to indicate the registration authority. In addition, the font size and "remarks" of the business license have been adjusted.

5. Business License for Enterprise as a Legal Person and Business License for Foreign-invested Enterprises and Their Branches issued in 2006. According to the Notice on Launching a New Business License for Foreign-invested Enterprises issued by the Foreign Investment Bureau of the State Administration for Industry and Commerce in June 2006 (Industrial and Commercial Enterprise Zi No.28, 2006), compared with the 200 1 version of the Business License for Enterprise as a Legal Person, the "operating period" is changed to "operating period" and the "enterprise type" is changed to "company type". Delete "branch" and add "paid-in capital" and "shareholders (promoters)"; The copy specification is changed to A4. The "business term" of the business license is changed to "business term"; The copy specification has also been changed to A4. The original version 200 1 business license ceased to be used on March 1 2007.

6. The business license of a sole proprietorship enterprise and the business license of a branch of a sole proprietorship enterprise shall be issued to the sole proprietorship enterprise and its branches registered in accordance with the Law on the Sole Ownership Enterprise and the Measures for the Administration of the Registration of Sole Ownership Enterprises.

7. In accordance with the Partnership Enterprise Law and the Measures for the Administration of Partnership Enterprise Registration, the registered partnership enterprises and their branches shall be issued with the Business License of Partnership Enterprise and the Business License of Partnership Enterprise Branch.

8 individual industrial and commercial households business license issued to individual industrial and commercial households registered in accordance with the "Provisional Regulations" of urban and rural individual industrial and commercial households management.

The above eight types of business licenses, except 1994 and 200 1, are used alternately with the two business licenses of 2006, and there will be six types of business licenses in the future. Therefore, Wen Lan said that "there are two kinds of business licenses in China", and it is wrong to classify the Business License of People's Republic of China (PRC) Enterprise as a Legal Person with the Business License of People's Republic of China (PRC), which was abolished as early as 200 1.

The legal and valid identification of business license is professional and belongs to the exclusive authority of the administrative department for industry and commerce. Article 65 of the Regulations on the Administration of Company Registration stipulates that "the company registration authority may temporarily detain the business license that needs to be recognized, and the detention period shall not exceed 10 days", which essentially gives the administrative department for industry and commerce the authority to determine whether the business license is legal and valid. The registration of other enterprises and individual industrial and commercial households by laws and administrative regulations also gives the administrative department for industry and commerce the exclusive right to manage the business license. Therefore, when the people's court deems it necessary in the trial of litigation cases, it may request the relevant administrative departments for industry and commerce to confirm the nature and legality of the business license.

Second, the nature of the business license

The nature of business license involves two aspects: first, the establishment of subject qualification; The second is what kind of legal adjustment the subject applies.

Let's talk about the subject qualification first. Wen Lan believes that "strictly speaking, the legal person status of a company is not granted by the business license issued by the administrative department for industry and commerce, but is obtained by the promoters of the company when they are established in accordance with the conditions prescribed by law. This can be granted by other administrative organs or confirmed by judicial organs. " The author thinks that the people's court can deny the company's legal person status according to law regardless of whether the company holds the Business License for Enterprise Legal Person, but the people's court or other administrative organs can never confirm that the legal company law is a unit or group without a business license. At the same time, the author also noticed that in judicial practice, there are cases of denying the nature of enterprises recorded in business licenses, among which the most typical one is the "red hat" enterprise named collective but actually individual investment. The author believes that the people's court determines that the enterprise is not a collective enterprise recorded in the business license, but an individual investment enterprise, thus confirming that it is a sole proprietorship or partnership enterprise. It is still not an act of determining the qualification of an enterprise, but a factual act of confirming the adjustment of civil legal relations, otherwise it is suspected that judicial power infringes on administrative power. After the fake collective enterprise is confirmed by the people's court, it still needs to go through the relevant industrial and commercial enterprise registration procedures, and the administrative department for industry and commerce also has corresponding registration procedures.

According to the current legal norms, the right to confirm the qualification of an enterprise subject belongs to the exclusive authority of the administrative department for industry and commerce and is not shared with other organs.

Corporate legal person belongs to the category of enterprise legal person. Article 4 1 of the General Principles of Civil Law stipulates that enterprises owned by the whole people and collectively owned enterprises "have been approved and registered by the competent authorities and obtained legal person status"; Enterprises with foreign investment "have the legal person qualification, and have been approved and registered by the administrative department for industry and commerce according to law, and obtained the legal person qualification of China". According to Articles 2 and 4 of the Regulations on the Administration of Registration of Enterprise Legal Persons, the registration authority of enterprise legal persons is not other administrative organs, but the State Administration for Industry and Commerce and local administrations for industry and commerce at all levels. Article 7 of the Company Law stipulates: "A company established according to law shall be issued a business license by the company registration authority. The date of issuance of the company's business license is the date of establishment of the company. " Paragraph 1 of Article 4 of the Regulations on the Administration of Company Registration clearly stipulates that "the administrative department for industry and commerce is the registration authority of the company", while paragraph 2 of Article 3 stipulates that "those who have not been registered by the company registration authority shall not engage in business activities in the name of the company". In addition, Item (5) of Article 12 of the Administrative Licensing Law also clearly stipulates that "enterprises or other organizations shall be established". , which needs to determine the subject qualification "belongs to the administrative license. Obviously, the establishment of a legal person or other enterprise legal person qualification must be approved and registered by the administrative department for industry and commerce and obtain a business license.

Both the Business License of Enterprise as a Legal Person and the Business License have dual nature, which are not only the credentials for obtaining the qualification of an enterprise as a legal person or institution, but also the credentials for obtaining the business qualification. Article 25 of the Regulations on the Administration of Enterprise Legal Person Registration stipulates that "the Business License of Enterprise Legal Person issued by the registration authority is the certificate of enterprise legal person"; Paragraph 1 of Article 3 of the Regulations on the Administration of Company Registration stipulates that "a company shall be registered with the company registration authority according to law and obtain the Business License of Enterprise as a Legal Person before it can obtain the qualification of enterprise as a legal person". As the main body engaged in business activities, enterprise legal persons should naturally have business qualifications. Therefore, the second paragraph of Article 7 of the Company Law stipulates that the business license of a company must specify the "business scope". The "business scope" recorded in the company's business license is the content that the state allows it to engage in business activities. There are also corresponding legal provisions on the qualification certificate of business license as a non-legal person business unit, so I won't repeat them here.

Among the above types of business licenses, the subject of registration according to what legal norms and what kind of business licenses are issued have been involved. In practice, the most easily misunderstood problem is the adjustment of legal norms of wholly-owned enterprises and partnership enterprises established by natural persons (citizens). According to the current legal framework, the administrative department for industry and commerce divides the above-mentioned wholly-owned enterprises and partnerships into two categories: private enterprises and private partnerships established and registered in accordance with the Provisional Regulations on Private Enterprises; A sole proprietorship enterprise established and registered in accordance with the sole proprietorship enterprise law and a partnership enterprise established and registered in accordance with the partnership enterprise law. The former category is labeled as "private". No matter the enterprise itself or its branches, the business license of version 1988 is issued, and the specific type of private enterprise is stated in the "economic nature" of the business license; The word "individual" is added to the latter type of sole proprietorship enterprise, and the partnership enterprise has no prefix. The business licenses of sole proprietorship enterprises, partnership enterprises and corresponding branches are issued. In my opinion, neither the industrial and commercial administrative authorities nor the people's courts should apply the Law on Sole Proprietary Enterprises or the Law on Partnership Enterprises to conduct administrative management and judicial trial on Sole Proprietary Enterprises and Private Partnership Enterprises, because these enterprises themselves are not based on the above-mentioned legal norms, and their behaviors do not conform to the Law on Sole Proprietary Enterprises or the Law on Partnership Enterprises, thus confirming their illegality or inappropriateness. If it is really necessary to refer to the above laws, it should also conform to the actual situation of "sole proprietorship enterprises" and "private partnerships".

III. Subject qualification of an enterprise whose business license has been revoked

Since the business license is the certificate of the subject qualification of an enterprise legal person or unincorporated business unit, does it mean that after the business license is revoked, the certificate of the subject qualification becomes invalid and the subject qualification dies on its own? In fact, the State Administration for Industry and Commerce (SAIC)No. 173 "Implementation Opinions on Several Issues Concerning Enterprise Registration" andNo. 2006/ 1997. 106, "Reply on the Legal Person Qualification after the Business License of an Enterprise as a Legal Person is Revoked" (Administrative Licensing Law) was promulgated, which was explicitly abolished by the State Administration for Industry and Commerce. From the efficiency of administrative management, the explanations of these two documents are not unreasonable, but from the actual operation of the termination of the qualification of enterprise legal person or unincorporated business entity, it is still a bit lacking. Article 46 of the General Principles of the Civil Law stipulates that "after the termination of an enterprise as a legal person, it shall cancel its registration with the registration authority and make an announcement." The reasons for the termination of an enterprise as a legal person, whether due to the revocation of its business license or other reasons, are not distinguished. The procedure for termination of an enterprise as a legal person is cancellation of registration and death after announcement. In addition, from a practical point of view, the revocation of business license is an administrative punishment, and there are relief channels according to law. If the business license is revoked, it will mean the loss of the enterprise's legal person qualification. How can we liquidate, apply for reconsideration and file a lawsuit in our own name? Therefore, the Supreme People's Court's reply No.23 (2002) was proved to be correct by the later Administrative Licensing Law (Article 70, Item 4).

The author thinks that an enterprise legal person whose business license has been revoked has lost its business qualification and can only engage in activities within the scope of liquidation, making final preparations for cancellation of registration and eventual demise. Wen Lan denies the theory of liquidation legal person and agrees with the theory of the same personality. In fact, from Wen Lan's point of view on the same personality theory, there is no substantial difference between it and the theory of liquidation legal person, and the terms of the same personality theory are easily misunderstood as having no substantial influence on the ability of enterprise legal person after the business license is revoked. From the perspective of industrial and commercial administration, an enterprise shall not engage in business activities in its own name after its business license is revoked, otherwise it will be illegal and will be subject to new administrative penalties. Of course, from the perspective of civil law, Wen Lan thinks that the third party handles the enterprise whose business license has been revoked in good faith, but the reason for not being established is still valid. However, it only protects the interests of bona fide third parties. Enterprises whose business licenses are revoked will still face the result of administrative sanctions, and their trading income is illegal and will be confiscated and fined.

The author thinks that "legal person liquidation" does not absolutely prohibit enterprises whose business licenses have been revoked from trading. The so-called activities within the scope of liquidation should be interpreted broadly. For example, the goods left by enterprises should be allowed to be sold, but enterprises are not allowed to produce or buy goods for sale. That is to say, an enterprise whose business license has been revoked can be treated as a liquidation transaction as long as it does not engage in the activities of continuing production and operation. So as to protect the legitimate interests of the company's creditors and shareholders more effectively and ensure the safety of social transactions.