The Reshaping Of The Legal Relationship Of Registration Under Commercial Registration Confirmation

In today’s society where the establishment of companies has already adopted"normalism"as the mainstream approach,Administrative License Law(“《行政许可法》”)still lists the establishment of enterprises or other organizations as matters requiring the establishment of administrative licensing.This undoubtedly has a certain derailment with the development of contemporary commercial society.The promulgation of the Regulation on the Administration of the Registration of Market Participants(“《市场主体登记管理条例》”)can play a highly positive role in the establishment of the commercial registration confirmation system at the national level.The implementation of the commercial registration confirmation system may be the biggest reform in the in the field of commercial registration system in recent years.A mistake has been corrected in previous legislation and practice that the nature of commercial registration is regarded as an administrative license rather than an administrative confirmation.China’s commercial registration system originated from the ancient marketing registration system(“市籍制度”),which was carried out by feudal rulers for economic control and maintenance of rule.However,the value basis of the commercial registration system in contemporary society should be to realize the maximum information publicity so as to ensure the security of transactions.Commercial registration act can be divided into cause act and registration act.The occurrence of registration act depends on its basic cause act,but it is independent from each other.It is more appropriate to define the nature of commercial registration as administrative confirmation,from the perspective of gifted commerce rights and business freedom.In the legislative evolution of China’s commercial registration system,the Regulation on the Administration of the Registration of Market Participants is an important milestone,declaring a trend that from retailed decentralized legislation to centralized unified legislation,and unified legislation can overcome many disadvantages of decentralized legislation.In the past,under the guidance of the concept that commercial registration is regarded as administrative license,many disputes related to commercial registration cases were not be solved well.Therefore,the judicial authorities put forward their own views on the review of commercial registration:commercial registration authorities should fulfill their duty of prudent review.In order to make a breakthrough in the practice of commercial registration license system,some regions have started the reform practice of commercial registration confirmation system within the region.After investigating the current situation of my country’s commercial registration,it is found that the problems of China’s commercial registration system are that the formal review was incompletely implemented,the legislative value is more than safe but not efficient,and the emphasis is more on supervision in advance and less on supervision in and after the process.There are some individualities and commonalities in the foreign commercial registration modes.As far as commercial registration agencies are concerned,there are administrative agencies,judicial agencies and industrial organizations.However,in the worldwide,it is the mainstream practice to adopt formal review standards for commercial registration and commercial registration can only have a confirmation effect on the registration items.From the practice of foreign commercial registration,some useful lessons can be learned for the implementation of China’s commercial registration confirmation system reform.On how to reshape the registration legal relationship under the confirmation system of commercial registration,this paper puts forward the following approaches: First,the formal review standards under the confirmation system of commercial registration shall be adhered to.The commercial subject’s self-responsibility of establishment and registration shall be strengthened,and commercial registration authorities only do formal examination,where credit endorsement shall be abandoned.Secondly,the boundary between administrative review and judicial review in commercial registration should be reasonably defined.Administrative organs retain the right of administrative investigation while respecting judicial review.Judicial organs should distinguish the scope of civil litigation and administrative litigation,and at the same time prudently determine the responsibility of administrative organs.Finally,the construction of supporting systems shall be promoted.Strengthen the supervision in and after the process,strengthen cooperation and information sharing between departments,and highlight the publicity function of commercial registration information.