I. I can't prove that I am the legal representative in name:?
1. In terms of civil liability, and under certain circumstances, the legal representative needs to bear certain liability for the losses caused by the illegal acts of the company's personnel. ?
2. In terms of administrative responsibility, and in some cases, the legal representative needs to bear administrative responsibility for the company's illegal behavior, unless the legal representative can prove that he is ignorant of the company's illegal behavior and subjectively has no fault or dereliction of duty. ?
3. In terms of criminal responsibility, the legal representative does not have to bear criminal responsibility for the company's criminal acts. However, in China's criminal law, some charges are that in addition to punishing the unit, the "directly responsible person in charge and other directly responsible personnel" will be investigated for criminal responsibility. For example: the crime of selling and producing fake and inferior products, the crime of illegal business operation, the crime of tax evasion, the crime of infringing works, etc. ?
4. When the company enters bankruptcy proceedings and is applied for compulsory enforcement of unpaid taxes, under certain circumstances, the administrative organs and judicial organs have the right to take compulsory measures against the legal representative. ?
Two, can prove that he is a "nominal" legal representative:
1. In terms of civil liability, if the company is a limited liability company, it shall be liable for repayment with its own property; When the actual controller manipulates the company, if there are acts such as fictitious investment, withdrawing investment, transferring or hiding assets in the course of litigation, and disposing of property without liquidation, the nominal legal representative needs to bear corresponding civil liability compensation. ?
Regardless of whether the nominal legal representative knows the company's behavior, he must bear certain legal responsibilities for the company's foreign loans or other business activities. If the legal representative of the company is missing or cannot find the civil liability of the company, the nominal legal representative will also face civil liability. ?
2. In terms of criminal responsibility, the company controller manipulates the company to commit economic crimes, such as fraud and illegal fund-raising. "Although the nominal legal representative did not directly participate, the nominal legal representative knew the truth, but did not stop it and let the actual controller act. At this time, the nominal legal representative also needs to bear the corresponding criminal responsibility.
Even if the nominal legal representative signs a written agreement with the actual controller, the nominal legal representative will not participate and will not bear any responsibility. This agreement is valid only between both parties and has no legal effect externally.
Article 150 of the Company Law stipulates: "Directors, supervisors and senior managers who violate the provisions of laws, administrative regulations or the articles of association when performing their duties shall be liable for compensation."
Article 148 stipulates: "Directors, supervisors and senior managers shall abide by laws, administrative regulations and the articles of association of the company, and have the obligation of loyalty and diligence to the company. Directors, supervisors and senior management personnel shall not use their powers to accept bribes or other illegal income, and shall not encroach on the company's property. "
Extended data:
I. Responsibility
Legal Representative The legal representative of an enterprise shall, within the scope of functions and powers stipulated by national laws, regulations and articles of association, exercise functions and powers, perform obligations and participate in civil activities on behalf of an enterprise as a legal person.
The legal representative of the company may entrust others to perform their duties on his behalf.
When the legal representative of the company entrusts others to act as an agent, he shall entrust it in writing. The duties that must be performed by the legal representative according to laws and regulations shall not be entrusted to others.
The legal representative of an enterprise as a legal person is the signatory who exercises power on behalf of the enterprise.
Second, the provisions
Article 49 of the General Principles of the Civil Law of our country stipulates six situations:
Engaging in illegal business activities beyond the business scope approved and registered by the registration authority;
Concealing the real situation from the registration authority or the tax authority or practicing fraud;
Withdrawing funds or hiding property to avoid debts;
Disposing of property without authorization after dissolution, cancellation or bankruptcy;
Failing to apply for registration and announcement in time at the time of change or termination, causing great losses to interested parties;
Engage in other activities that harm national interests or social public interests prohibited by law.
These illegal acts are still borne by the legal person, and the legal representative is not exempted from other responsibilities caused by them, that is, he can be given administrative sanctions, fines and other penalties. If a crime is constituted, criminal responsibility shall be investigated according to law.
Third, post restrictions.
According to Article 146 of the Company Law of People's Republic of China (PRC), the legal representative of a company or enterprise whose business license has been revoked due to violation of the law shall not be a director, supervisor or manager of the company if it has not been more than three years since the date of revocation of the business license of the company or enterprise.
The State Administration for Industry and Commerce's Regulations on the Administration of Registration of Legal Representatives of Enterprise Legal Persons also clearly stipulates that the legal representative of an enterprise whose business license has been revoked due to violation of the law shall not be the legal representative of other enterprises.
Prohibition of being a legal representative is the same as prohibition of being a director or supervisor, that is, being sentenced for committing crimes of corruption, bribery, embezzlement and misappropriation of property or disrupting the order of socialist market economy (mainly economic crimes), being deprived of political rights due to crimes, and unable to be a legal representative within 5 years from the date of expiration of self-punishment.
Four. right
The rights granted to the legal representative of the company by current laws mainly include the following contents:
Article 43 of the General Principles of Civil Law of People's Republic of China (PRC) stipulates that an enterprise as a legal person shall bear civil liability for the business activities of its legal representative and other staff members.
Article 50 of the Contract Law of People's Republic of China (PRC) stipulates that a contract entered into by the legal representative or person in charge of a legal person or other organization beyond its authority is valid, except that the other party knows or should know that it is beyond its authority.
Article 48 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that a legal person shall be represented by his legal representative. Other organizations are sued by their principal responsible persons.
Therefore, in terms of foreign relations, the acts carried out by the legal representative in the name of the company in accordance with laws, regulations and the articles of association are regarded as corporate acts, and the company should bear relevant legal responsibilities. It is not an agency relationship with a legal person, but a representative relationship, and its representative authority comes from the explicit authorization of the law, without the power of attorney of the legal person.
In the event of a dispute, the legal representative has the right to directly represent the company to the people's court and respond to the lawsuit. Its litigation behavior is the litigation behavior of the company and has direct legal effect on the company. ?
Baidu Encyclopedia-Legal Representative