The second civil subject of civil law: legal person and unincorporated organization

The main contents of the legal person system are: the classification of legal persons, their capacity for civil rights and civil conduct, and the civil rights and obligations between legal persons and an organ, legal representative, members and employees. Unincorporated organizations mainly include partnership enterprises and sole proprietorship enterprises.

This theme corresponds to Part I "General Provisions", Chapter III "Legal Person" and Chapter IV "Non-legal Person Organization" of the Civil Code.

Legal person is the civil subject of legal fiction. It is an organization with civil rights and capacity for civil conduct based on certain members or property.

Three characteristics of legal person:

1. Independent personality;

2. Independent property;

3. Independent responsibility.

1 .. Common classification of overseas continental law systems

According to whether the functions carried by legal persons are public (public power), they are divided into public legal persons and private legal persons.

Private legal persons are divided into consortium legal persons and corporate legal persons according to whether the foundation is property-based or member-based.

2. Classification of legal persons in China

Civil law is divided into three categories according to the purpose of legal person existence and the actual national conditions of our country:

(1) for-profit legal person;

(2) Non-profit legal person;

(3) Special legal person.

Whether a legal person is profitable does not lie in whether it engages in business activities or pursues economic interests, but in the ownership of its income.

A profit-making legal person must have two points: first, engage in business activities to seek economic benefits; Second, the benefits will eventually be distributed to legal person members.

1. Company members

Refers to the investors and founders of legal persons.

A legal person and its members are independent of each other in personality, property and responsibility.

2. Corporate organs

Refers to an organization or individual established in accordance with laws, regulations and articles of association, which can conduct civil activities on behalf of a legal person and manage the internal affairs of a legal person without special authorization.

The legal person organ is a part of the legal person and has no independent personality, so the meaning and behavior of the legal person organ are regarded as the meaning and behavior of the legal person.

3. Company employees

4. Branches, functional institutions and subsidiaries

The subsidiary is independent of the parent company in personality, property and responsibility, and is an independent legal person; The branch is not an independent legal person.

1. Legal representative

China implements a single legal representative system.

2. Legal (postal) agent

If the staff of a legal person other than the legal representative engages in civil activities in the name of the company according to their functions and powers, the rules of legal agency behavior stipulated in Article 170 shall apply.

1. Establishment phase

2. Duration and change stage of legal person.

3. Liquidation stage of legal person

After the liquidation, the liquidator shall cancel the registration and make an announcement, and the legal person shall be terminated according to law.

1. The validity of establishment registration is an effective element, and the establishment behavior+establishment registration = establishment of a legal person.

2. The validity of cancellation is an effective element, and liquidation+cancellation = termination of legal person.

3. the effectiveness of change registration is an essential element of confrontation, and the change of legal person registration items = effective+change registration > third party.

(3) the responsibility of establishing behavior

1. The establishment behavior in the name of "legal person under establishment". The establishment is successful and the legal person shall bear it; If the establishment fails, it shall be borne by the (all) founders.

2. Act in the name of the founder. If it is successfully established, it shall be borne by the legal person or the founder; If the establishment fails, it shall be borne by the founder and then recovered from other founders.

A legal person's life can be divided into four important stages, and each stage has different rights and abilities.

1. The "legal person under establishment" in the establishment stage has no capacity for civil rights;

2. The legal person enjoys the capacity for civil rights during its normal existence;

3. During liquidation, the liquidation legal person enjoys limited capacity for civil rights;

4. The legal person loses legal capacity after termination.

An act that exceeds the capacity of a legal person is invalid.

If it is only a violation of the business scope, the contract cannot be deemed invalid on this ground.

1. must be registered, obtain a business license and obtain legal person status;

2. There must be two legal person organs: the power organ and the executive organ;

3. The system of corporate personality denial is applicable to all profit-making legal persons;

4. If the resolution violates the procedure, it can be revoked; The revocation of the resolution does not affect the civil legal relationship between the legal person and the external bona fide third party;

5. Unfair related party transactions are prohibited;

6. For-profit legal persons shall bear social responsibilities.

(2) Basic rules of non-profit legal person

1. Establishment of legal person organization

(1) institution legal person;

(2) Social organizations as legal persons;

(3) donating legal persons.

2. Whether the establishment of a non-profit legal person takes registration as an effective requirement has not been unified.

3. When a non-profit legal person established for the purpose of public welfare terminates, there are two main principles for the distribution of the remaining property:

(1) program

(2) Ownership: transfer to other public welfare legal persons with the same or similar purposes, also known as "similarity principle".

Verb (abbreviation of verb) unincorporated organization

Including sole proprietorship enterprises, partnership enterprises, professional service institutions without legal personality, etc.

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