First, the identity card is fraudulently used, and the legal risks that the registered company may bring to the parties.
1, the parties will be restricted when they really want to set up a one-person limited liability company. According to Article 58 of the Company Law, a natural person can only invest in the establishment of a one-person limited liability company. A one-person limited liability company cannot invest in the establishment of a new one-person limited liability company. Therefore, if the identity card is fraudulently used as a registered company by others, but the parties really want to set up a one-person limited liability company at their own expense, it will be restricted and cannot be established, which will bring great trouble to the fraudster.
2. Can be jointly and severally liable for the company's debts. According to the provisions of "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of People's Republic of China (PRC)" (II), if the assets of the company are insufficient to pay off the debts, and the creditors claim that the unpaid shareholders and other shareholders or promoters at the time of the establishment of the company shall be jointly and severally liable for the debts of the company within the unpaid capital contribution, the people's court shall support them according to law. At the same time, according to Article 63 of the Company Law, if the shareholders of a one-person limited liability company cannot prove that the company's property is independent of the shareholders' own property, they shall be jointly and severally liable for the company's debts. Therefore, under the subscription system of registered companies, if a fraudster establishes a company only by subscription, but fails to contribute, or the company's property management is chaotic, then the fraudster may be jointly and severally liable for the company's debts.
Although Article 29 of the Supreme People's Court's "Provisions on Several Issues Concerning the Application of the Company Law of People's Republic of China (PRC) (III)" stipulates that if a person makes capital contribution in the name of another person and registers that person as a shareholder in the company registration authority, the person who makes the false registration shall bear corresponding responsibilities; The people's court shall not support the company, other shareholders of the company or creditors who require the shareholders registered with false names to bear the responsibility of making up the capital contribution or compensating the outstanding part of the company's debts on the grounds that they have not fulfilled their capital contribution obligations. However, the company registration is approved by the administrative department and has the effect of legal publicity. In the case that the identity has not been corrected or confirmed by the relevant departments, the defrauded person still has the risk of bearing debts.
3. It may be subject to administrative punishment by the administrative department for industry and commerce. According to Article 65 of the Regulations of the People's Republic of China on the Administration of Company Registration, if the promoters and shareholders of a company make false capital contributions and fail to deliver or deliver monetary or non-monetary property as capital contributions on time, the company registration authority shall order them to make corrections and impose a fine of more than 5% and less than 5% of the amount of false capital contributions. Therefore, the administrative department for industry and commerce may impose administrative penalties if the fraudster makes false capital contribution, fails to deliver or fails to make capital contribution on schedule.
Second, the identity information of the registered company is fraudulently used. How to protect rights?
Since it will bring such a big legal risk to register and set up a company by fraudulent use of ID card, how can we protect our rights if we find that the ID card is fraudulently used to register and set up a company? We believe that we can protect our rights and interests from the following aspects:
__ 1. Report the case to the public security organ before obtaining relevant evidence. If the infringer's behavior causes economic losses to fraudulent users or damages the interests of the public, the infringer may be suspected of committing a crime, and the public security organ may file a case for investigation according to law. Main legal basis:
(1) selling or providing citizens' personal information to others in violation of the relevant provisions of the state according to the provisions of Article 251 of the Criminal Law, and the circumstances are serious; Selling or providing citizens' personal information obtained in the course of performing their duties or providing services to others; Stealing or otherwise illegally obtaining citizens' personal information may be suspected of infringing citizens' personal information.
(2) According to Article 280 of the Criminal Law, whoever forges, alters or buys or sells identity cards, passports, social security cards, driver's licenses and other certificates that can prove his identity according to law shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights, and shall also be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
(3) According to the provisions of Article 281 of the Criminal Law, anyone who forges, alters or misappropriates other people's identity cards, passports, social security cards, driver's licenses and other certificates that can prove his identity according to law in activities that should provide identification according to state regulations, if the circumstances are serious, shall be sentenced to criminal detention or public surveillance and shall also or shall only be fined. Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement on Citizens' Personal Information came into effect on June 1 2065438 (Note of Mande Enterprise, the home of the law): "Serious circumstances" includes illegally obtaining, selling or providing more than 50 pieces of track information, communication content, credit information and property information; Illegally obtaining, selling or providing more than 500 pieces of citizens' personal information such as accommodation information, communication records, health and physiological information and transaction information, which may affect personal and property safety; Illegally obtaining, selling or providing more than 5,000 pieces of personal information of citizens other than those specified in the preceding two paragraphs; The illegal income is more than 5000 yuan.
__2. Complain to the administrative department for industry and commerce and ask the administrative department for industry and commerce to cancel the administrative license and company registration. Main legal basis:
(1) Article 198 of the Company Law of People's Republic of China (PRC) stipulates that in violation of the provisions of this Law, if a company is registered by falsely reporting its registered capital, submitting false materials or concealing important facts by other fraudulent means, the company registration authority shall order it to make corrections, and impose a fine of 5% or more 15% or less on the company that falsely reports its registered capital; Those who submit false materials or conceal important facts by other fraudulent means shall be fined between 50,000 yuan and 500,000 yuan; If the circumstances are serious, the company registration or business license shall be revoked.
(2) According to Article 65 of the Regulations of the People's Republic of China on the Administration of Company Registration, if a company is registered by submitting false materials or concealing important facts by other fraudulent means, the company registration authority shall order it to make corrections and impose a fine of not less than 50,000 yuan but not more than 500,000 yuan; If the circumstances are serious, the company registration or business license shall be revoked.
(3) According to Article 63 of the Regulations on the Administration of Registration of Enterprise Legal Persons in People's Republic of China (PRC), if a business license is obtained by forging documents, the illegal income shall be confiscated and a fine of less than three times the illegal income shall be imposed, but the maximum amount shall not exceed 30,000 yuan. Confiscate the illegal income, impose a fine of less than 10000 yuan, and revoke the business license.
__3. The administrative act of registering the company by the industrial and commercial department is illegal, which damages the legitimate rights and interests of the infringed, and brings an administrative lawsuit to the industrial and commercial department, demanding that the industrial and commercial department revoke the administrative license for company registration. Main legal basis:
(1) According to Article 69 of the Administrative Licensing Law of People's Republic of China (PRC), in any of the following circumstances, the administrative organ that made the administrative licensing decision or its superior administrative organ may revoke the administrative license at the request of interested parties or ex officio: if the licensee obtains the administrative license by cheating, bribery or other improper means, it shall be revoked.
(2) According to Article 70 of the Administrative Procedure Law of the People's Republic of China, if an administrative act is under any of the following circumstances, the people's court shall order it to be revoked or partially revoked, or may order the defendant to make an administrative act again:
(a) the main evidence is insufficient;
(two) the application of laws and regulations is wrong;
(3) Violating legal procedures;
(four) beyond the authority;
(5) abuse power for personal gain;
(6) Obviously inappropriate.
__4. Take the actual infringers, that is, investors, registered institutions and registered companies, as the defendants to file a civil lawsuit, demanding to stop the infringement, eliminate the impact and compensate for the losses. Main legal basis:
(1) Paragraph 1 of Article 99 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that "citizens have the right to their own names, have the right to decide, use and change their names according to regulations, and it is forbidden for others to interfere, steal or pass off their names", and citizens' name rights are protected by law. Citizens have the right to name, and interference, embezzlement and counterfeiting by others are prohibited.
(2) Article 134 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that the ways to bear civil liability mainly include: stopping the infringement; Remove obstacles; Eliminate danger; Return property; Restore to the original state; Repair, rework and replacement; Compensation for losses; Pay liquidated damages; Eliminate influence and restore reputation; The above methods of civil liability can be applied separately or in combination.
(3) Article 2 of the Tort Liability Law of People's Republic of China (PRC) stipulates that those who infringe upon civil rights and interests shall bear tort liability in accordance with this Law. The civil rights and interests mentioned in this Law include personal rights and property rights such as the right to life, health, name, reputation, honor, portrait, privacy, marital autonomy, guardianship, ownership, usufructuary right, security right, copyright, patent right, trademark exclusive right, discovery right, stock right and inheritance right.
(4) Article 15 of the Tort Liability Law of People's Republic of China (PRC) stipulates that the ways to bear tort liability mainly include:
(1) Stop the infringement;
(2) remove obstacles;
(3) eliminating danger;
(4) returning property;
(5) restitution;
(6) Compensation for losses;
(7) apologize;
(eight) to eliminate the influence and restore the reputation.
The above tort liability methods can be applied separately or in combination.
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