Research On Decriminalization Of The Crime Of Misrepresentation Of Registered Capital In China

With the constant modification of the Company Law of the People’s Republic of China,the traditional statutory capital system has been gradually replaced by subscribed capital system,many restrictive requirements for registered capital in statutory capital system,such as: minimum registered capital allowed,procedure on capital verification,is also abolished by subscribed capital system.Because the crime of misrepresentation of registered capital is based on the statutory capital system,with the change of the capital system,whether the act of misstating registered capital should be decriminalized,and how to regulate it in the criminal law have aroused a widespread discussion in academic circle.To solve this dispute,the NPC Standing Committee limited the scope of this crime by legislative interpretation.However,due to the lack of necessary theoretical analysis,the legislative interpretation has not quell the dispute in theoretical field,Whether the act should be decriminalized and how to understand the legislative interpretation are still controversial.After analyzing the argument of two sides,we will find that both sides have shortcomings,which is an important reason for the continuous debate between the two groups.Actually,in order to issue a comprehensive analysis on whether the crime of misrepresentation of registered capital should be decriminalized and how to regulate it,we must analyze two problems at first: one is the real purpose of the reform of the company capital system and the real connotation of the subscribed capital system,the other is the legislative purpose and the legal interests of this crime.Only by clarifying the defects of the statutory capital system and understanding the real purpose of the capital system reform,we can find the difference between the subscribed capital system and the statutory capital system.Only by analyzing the legal interests of the crime of misrepresentation of registered capital,we can correctly analyze what is the act of misstating registered capital.Only after analyzing the two question above,we get a reasonable answer to the question of whether it should be decriminalized.When we carefully analyze the value and function of corporate capital,we will find that no matter what kind of capital system is,its essence is to balance the interests of all parties,so that the company can create more wealth.Compared with the statutory capital system,shareholders still have the obligation to make true contribution to the company,but the company law has no more mandatory requirements about method of capital subscription.Under the statutory capital system,because people are misled by the literal meaning of the clause,such as:“registered capital” and “Obtain company registration”,they generally associate the act of misstating registered capital with the establishment of the company.They believe that the crime of misrepresentation is aimed at deceiving the company registration authority and obtaining company registration when the company is established,so as to seek illegal interests through company transactions.In fact,the "registered capital" in the provision of the crime of misrepresentation refers to the paid-in capital of shareholders,and the fundamental purpose of "deceiving the company registration authority" is to deceive the public.In other words,the real purpose of the crime of misrepresentation of registered capital is to deceive the public and making a false declaration on paid-in capital,resulting in the company’s failure to obtain the full amount of shareholders’ capital injection in accordance with the articles of association.The real obligation violated by the act of misstating registered capital is that the shareholders should pay the capital contribution truthfully,and the legal interests infringed are the independence of the company’s property and the independent personality of the company.As a kind subject of civil jural relations created by law,the key to maintain independent personality in the transaction is to keep the independence of property,therefore,the crime of misrepresentation of registered capital actually protects the company’s independent personality.This is the basic principle that should be abided by both under the statutory capital system and the subscribed capital system,so the crime of misrepresentation of registered capital is still of great significance under the subscribed system and should not be decriminalizedHowever,not decriminalization does not mean that there is no problem with the provision of the crime of misrepresentation of registered capital and no need to amend.In fact,the reason why there is a debate about whether the crime of misrepresentation of registered capital should be decriminalized is that the expression of the criminal law is not rigorous and leads to ambiguity.In the statutory capital system,the company law requires the shareholders to hand in all the registered capital within a certain period after the establishment of the company,especially the company law of 1993 requires that all the registered capital be paid in when the company is established.As a result,in the context of statutory capital system,there is a certain relationship between registered capital and paid in capital.In addition,the existence of capital verification procedures makes companies have to cheat the registration authority if they want to cheat the public.Therefore,although the description of the provisions of the crime of misrepresentation of registered capital is not accurate,It’s not controversial,and it’s more vivid and practical.But,with the establishment of the subscribed capital system,the company law does not have any mandatory requirements on the payment of capital.Registered capital and paid-in capital have become two completely different concepts,it is granted that the provision of the crime of misrepresentation of registered capital will cause ambiguity.Therefore,we should regulate the crime of misrepresentation of registered capital according to the different capital systems.For the special company with paid-in capital system,the crime of misrepresentation of registered capital can still be applied.However,for ordinary companies with subscribed capital system,it is necessary to establish new provisions to make it clear that the object of misrepresentation is paid-in capital and the object of deceit is the public.