| Endured from planned economy to market economy, commercial registration system made great contribution to the establishment of commercial entity system with its particular institutional function although it was imposed with certain traits of planned economy. However, under the increasing diversification of commercial entity and complication of commercial acts today, commercial registration system is hard to display its due function by reason of scattered legislation and low level validity. Long pregnancy of commercial registration law not only indicates great attention from the national government but also hints that it is not sufficient and mature for the legislation. Based on loopholes of current enterprise registration and management license system reviewed by the theoretical and practical circle, with enormous discussion and practical analysis on nature, scope, function and specific institutional design and perfection of commercial registration, some fundamental theoretical issues of commercial registration has not reached a unambiguous conclusion. Focused upon function of commercial registration, this paper is aimed to analyze advantages and disadvantages of functions of its entity confirmation, interest balance through publication and its social public function thereby provide advices to promote this system in hoping that more research could be conducted on construction and integrity of commercial entity system and theory.This paper could be divided into five parts with about 40,000 words except introduction and conclusion.Part one gives a summary of functions of commercial registration. Legal function is generalization of status of law and law operation in macro level and a conceptual media of principle with advising significance. The research of legal function could not only modify the legal operation and following deviated links but also be guidance for the general operation of legal system. Based on this, the paper summarizes the functions of commercial registration which are confirmation of commercial entity identity, publication of commercial information and balancing of interest as well as efficient administrative supervision. Part two directs to the analysis of confirmation function of commercial registration entity. Commercial registration in early times mainly reflected the endowment of businessman identity from the public power, however, effect of natural law theory and figuration businessman theory convert the registration from creative validity to confirmative validity. It discusses with the necessity of entity confirmation pointing out that entity confirmation is not only dispensable for commercial registration but also legal basis of the ability of business act the also named as commercial act whether under the subjectivism of commercial law or under the objectivism of commercial law. The validity of entity confirmation from the commercial registration mainly lies in the confirmation instead of creation. Mode of validity under registration in our country imposes all business entities with compulsory registration. Business entities include company, partnership, sole proprietorship, individual business of traditional types and shall cover specialty cooperative of peasants with the publication of Peasants Specialty Cooperative Law. With the desalination of privileged identity of businessmen in history, together with the even more complicated business acts and more extensive market entities as well as more diversify business room; entity confirmation function of commercial registration plays a limited role in certain areas and presents a weakening trend of function.Part three mainly studies on the interest regulation and control of commercial registration system through information publication. Interest conflict between regulations, demand of interest expression, conflict of balancing of interest and reshuffle of interest situation all indicate that law is closely connected with interest. Firstly, brief introduction of legal function of interest regulation and control indicated that the interest regulation and control function of commercial registration is brought into full play by the core element of publication in registration. Commercial registration is the combination of private law acts of registration entity and administrative acts of registration management department and it not only produces validity to the registration entity but also influences the interests of shareholder, third party of trade and other market entities and further analyzing the potential interest relationship and conflicts involved in commercial registration. Different entities are distinct in every process like interest expression, interest choice and interest reformation and this paper picks company interest balancing function of typical importance as the topic for research. The credibility, confrontation and flawed registration validity are actually interest balancing modes between commercial entities and third party.Part four examines the function of administrative supervision of commercial registration. Government supervises the commercial acts of commercial entities in ways of commercial registration system, annual survey and other related institutions which ensure the legal supervision and management with precondition of legal regulation to commercial entity and commercial acts from the government and efficient means for macro regulation in terms of national statistics computation as well as strong security for the national taxation. Some scholar held suspicion with regard to management function of commercial registration and thought that administrative supervision function shall be excluded by reason of its fatal effect to the private law nature of commercial registration. However, as a combination of public power and private law act, commercial registration indeed indicates the significance of administrative supervision in not only current legislation but also legal practice.Part five scrutinizes the state quo of current commercial registration system and puts forward suggestions for perfection of the commercial registration system in our country with the angle of function display of commercial registration. Commercial registration system confuses the commercial entity theory with its scattered legislation and frequent conflicts; enterprise-centered registration system is contradicted with the equal entity principle; business license combines the entity qualification and business qualification together, which induces theoretical confusion and practical problems. In terms of information publication, the shortage of integrated commercial registration book and defective commercial publication system put simple regulations with respect to flawed registration. Administrative supervision organizational assortment and function are waiting to be reasonable and too many administrative reviewing issues causes low efficiency and problems of imbalance between reviewing mode and liability assumption are prominent Based on this, the perfection of commercial registration legal system shall enhance the service function of registration and dilution of administrative traits, establish registration mode of separation of entity qualification and operation qualification and comprehensive information publication system and uniform the commercial registration legal regulations.Commercial registration is a system best embodying theoretical trait of commercial and is significant in differentiation between commercial entity system and civil entity system. Its existence is full of theoretical reasonability and practical importance. When the draft and argumentation of commercial registration law will be overall initiated, this paper selects this fundamental issue in angle of functional and theoretical research and interpretation with a hope that this could provide some help to the commercial registration legislation and to the theoretical construction of commercial entity system. |
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