Being a so-called "nominal" legal representative involves greater legal risks and will bear certain legal liabilities. There are two common situations: ?

1. Unable to prove that he is a "nominal" legal representative: ?

1. In civil liability, and under certain circumstances, the legal representative needs to bear certain liability for losses caused by company personnel's violations. ?

2. In administrative responsibilities, and under certain circumstances, the legal representative needs to bear administrative responsibility for the company's violations of laws and regulations, unless the legal representative can prove that he has no knowledge of the company's violations, and There is no subjective fault or dereliction of duty. ?

3. In terms of criminal liability, if a company commits a crime, the legal representative does not necessarily need to bear criminal responsibility. However, in my country's "Criminal Law", some crimes are in addition to punishing the unit. In addition, the "directly responsible persons and other directly responsible persons" will also be investigated for criminal liability. For example: crimes of selling and producing counterfeit products, illegal business operations, tax evasion, copyright infringement, etc. ?

4. When a company enters bankruptcy proceedings and is applied for enforcement of unpaid taxes, under certain circumstances, administrative agencies and the judiciary have the right to take compulsory measures against the legal representative. ?

2. Can prove that he is a "nominal" legal representative: ?

1. In civil liability, if the company is a limited liability company, the company will bear external liabilities with its own property Responsibility for repayment; if the actual controller makes fictitious capital contributions or evades capital contributions when manipulating the company, transfers or conceals assets during the litigation process, or disposes of property without liquidation, the nominal legal representative will need to bear corresponding liabilities. Civil liability compensation. ?

No matter whether the nominal legal representative is aware of the company's actions or not, he must bear certain legal responsibilities for the company's external borrowings or other business activities. If the company's legal representative disappears or the company's civil liability person cannot be found, then the "nominal legal representative" "The legal representative will also face civil liability. ?

2. In criminal liability, the company controller manipulates the company to commit economic crimes, such as fraud, illegal fund-raising, etc. Although the "nominal legal representative" does not directly participate, the "nominal" legal representative clearly knows If the actual controller does not stop the act, the "nominal" legal representative will also bear corresponding criminal liability.

Even if the nominal legal representative and the actual controller sign a written agreement, The nominal legal representative does not participate and assumes no responsibility. This agreement is only valid between the two parties and has no legal effect externally.

Article 150 of the "Company Law" stipulates: "Directors and supervisors. . Senior managers who violate laws, administrative regulations or the company's articles of association when performing their duties and cause losses to the company shall bear liability for compensation. "

Article 148 stipulates: "Directors, supervisors and senior managers shall abide by laws, administrative regulations and the company's articles of association, and have a duty of loyalty and diligence to the company. Directors, supervisors and senior managers shall not take advantage of their powers to accept bribes or other illegal income, or misappropriate the company's property. ”

Extended information:

1. Responsibilities

Legal representative The legal representative of an enterprise shall exercise its powers within the scope of powers stipulated in national laws, regulations and the articles of association of the enterprise. , perform obligations and participate in civil activities on behalf of corporate legal persons.

The legal representative of the company may entrust others to perform duties on his behalf.

The legal representative of the company shall have a written authorization when entrusting others to perform duties on his behalf. . The duties that must be performed by the legal representative according to laws and regulations shall not be entrusted to others.

The legal representative of an enterprise is the signatory who exercises authority on behalf of the enterprise.

II. Provisions

Article 49 of the General Principles of Civil Law of my country stipulates six situations:

Engaging in illegal business activities beyond the scope of registered business approved by the registration authority ;

Concealing the true situation and committing fraud to the registration authorities and tax authorities;

Escaping funds and concealing property to evade debts;

Dissolved, revoked, and Dispose of property without authorization after declaring bankruptcy;

Failure to apply for registration and announcement in time when changing or terminating, causing interested parties to suffer heavy losses;

Engaging in other activities prohibited by law , harming national interests or social public interests.

The legal person is still responsible for these illegal acts. The legal representative is not exempted from other responsibilities arising therefrom, that is, administrative sanctions, fines and other penalties can be imposed. Those who constitute a crime should be investigated in accordance with the law. criminal responsibility.

3. Restrictions on holding positions

According to Article 146 of the "Company Law of the People's Republic of China", serving as the legal representative of a company or enterprise whose business license has been revoked due to violation of laws. , and bear personal responsibility for the illegal acts of the company. If it has not been more than three years since the date of the company or enterprise's business license being revoked, he shall not serve as a director, supervisor or manager of the company.

The State Administration for Industry and Commerce's "Regulations on the Registration and Management of Legal Representatives of Enterprise Legal Persons" also clearly stipulates that serving as the legal representative of an enterprise whose business license has been revoked due to violation of laws shall not serve as the legal representative of other enterprises.

The circumstances under which a person is prohibited from serving as a legal representative are the same as the circumstances under which he is prohibited from serving as a director or supervisor, that is, those who have been sentenced for corruption, bribery, misappropriation of property or undermining the order of the socialist market economy (mainly economic crimes) , and being deprived of political rights due to crime and unable to serve as a legal representative within 5 years from the date of expiration of the sentence.

IV. Rights

The rights of the company’s legal representative under current law mainly include the following:

Article 1 of the General Principles of the People’s Republic of China and Civil Law Article 43 stipulates that an enterprise legal person shall bear civil liability for the business activities of its legal representative and other staff.

Article 50 of the "Contract Law of the People's Republic of China" stipulates that if the legal representative or responsible person of a legal person or other organization enters into a contract beyond the scope of his authority, unless the counterparty knows or should know that the contract has been exceeded. Outside the scope of authority, the representative act is valid.

Article 48 of the "Civil Procedure Law of the People's Republic of China" stipulates that legal persons shall conduct litigation by their legal representatives. Other organizations are litigated by their principals.

Therefore, in terms of external relations, the actions performed by the legal representative in the name of the company in accordance with the provisions of laws, regulations and the company's articles of association are regarded as corporate actions, and the company should bear relevant legal responsibilities. The relationship between it and the legal person is not an agency, but a representative relationship, and its representative authority comes from the clear authorization of the law, so there is no need for a separate power of attorney from the legal person.

When a dispute occurs, the legal representative has the right to directly sue and respond to the People's Court on behalf of the company. The litigation actions he performs are the company's litigation actions and have direct legal effect on the company. ?

Baidu Encyclopedia-Legal Representative