1? Only when the official seal is common can it have public effect
? The main body of market transactions must establish the consciousness that the official seal is named "Gong" and carefully manage and use the official seal. From the perspective of legal significance, affixing the official seal on the transaction text such as the contract means that the act is a duty act, and its legal consequences should be borne by the unit indicated by the name of the official seal. From the counterparty's point of view, as long as the official seal of a unit is stamped on the signature position of the contract text (whether the official seal is true or not), in principle, the unit should be regarded as the counterparty of the transaction. The above is only the appearance of the official seal surname "Gong". In practice, even if the official seal of a company is stamped in the contract text, it is not uncommon that the transaction result is not borne by the company. For example, Article 5 of the Provisions of the Supreme People's Court on Several Issues Concerning Suspected Economic Crimes in the Trial of Economic Disputes stipulates that if the perpetrator embezzles or privately engraves the official seal of the unit to defraud the property to be owned by the individual, which constitutes a crime, the unit shall not be responsible for the economic losses caused by the act.
? The official seal in the contract text is forged. Is the contract still valid? Who will bear the contract responsibility, the unit or the actor? To explain these problems, we must first find out how the unit expresses itself in the trading activities. Take a company as an example, it must rely on the signature or seal of a specific natural person to realize its will. However, a specific natural person is also an independent legal subject. When there is only the signature of the specific natural person in the contract text, it is difficult for us to confirm whether the behavior is the will of the company or the will of the natural person. The main function of our official seal in the contract text is to commend the behavior of the company rather than the behavior of a natural person. Therefore, the dispute related to the use of the company's official seal is not so much to find out whether the official seal is true or false and whether it has been used (stolen), but rather to make it clear whether the person who seals it has the right to represent (manage).
? In other words, whether the person in charge of a specific transaction has the authority to represent (manage) is a more important factor than the official seal itself. If the "sealed person" is a representative (manager), even if the contract text is not sealed or stamped with a fake seal, as long as his signature in the contract is true, or he can prove that the seal was stamped by himself or agreed to be stamped by others, the legal consequences of the transaction behavior should be borne by the unit. The diagram is as follows:
2? Ever-changing, because people decide the world
so wonderful, because people can always deduce different lives in the same script. Disputes over the use of official seals often occur, and the same is true. Controversial issues in the use of official seals can be roughly classified into the following categories:
? First, only the legal representative or agent signed it, and the contract text was not stamped with the official seal. Article 32 of the Contract Law stipulates that "if the parties conclude a contract in the form of a contract, the contract is established when both parties sign or seal it." It can be seen that stamping and signing have the same effect. Obviously, it is impossible to confirm that the transaction behavior is a personal behavior just because the contract text has no official seal. In this case, as long as there is evidence that the legal representative or agent signed the contract in the name of the company, the company should bear the corresponding legal consequences.
? Second, the blank contract text is stamped with the official seal in advance, and then the contract content is determined. Under normal circumstances, the two parties to the transaction will confirm the conclusion of the contract by signing and sealing after determining the contents of the contract through consultation. What is the validity of the contract if it is sealed first and then negotiated? We should specifically examine the agency authority of blank contract holders. In the case of agency or agency by estoppel, the contract signed by this unconventional procedure is still valid and the company shall bear the corresponding legal consequences.
? Third, the type of official seal does not match the type of document. According to different purposes, companies often prepare different kinds of official seals, such as official seals, special seals for finance, invoices, contracts and files. Obviously, different kinds of chapters have their scope of application. What are the consequences of stamping the official seal beyond the scope of use in the transaction text? For example, the financial seal of the company is affixed to the signature of a sales contract. What is the effectiveness of the contract at this time? At this time, we should still grasp the key factor of "the person who seals", that is, if we can prove that "the person who seals" does have authority, we can't deny the validity of the contract because the official seal is beyond the scope of use.
? The fourth is to use other official seals other than the official seals for industrial and commercial (public security) filing. If the official seal stamped in the contract text is abandoned by the company or the official seal stamped is inconsistent with the official seal for filing, how to determine the validity of the contract? The counterparty has no obligation to examine whether the official seal is the official seal for the record. In this case, in principle, it should be presumed that the subject who signed the contract is the subject shown in the official seal. Of course, this presumption allows the parties to prove it.
? Fifth, the official seal is forged, privately carved or stolen. If the parties can prove that the official seal in the contract text is forged, privately carved or embezzled, and the parties themselves are not at fault, the actor shall bear civil liability and criminal liability. In other words, both parties still have to prove that the contract is a corporate act or an unincorporated act through the evidence of the representative (manager) of the "person with seal".
3? Proper management, seeking advantages and avoiding disadvantages
Improper management and use of the official seal can easily lead to legal disputes for the company. Therefore, all units should establish relevant systems for the use of official seals to avoid private use of official seals.
first, establish a system for keeping and using the official seal internally. The official seal should be kept by special personnel in different positions, and the responsibility of the custodian should be clearly defined; Establish an approval system for the use of official seals, and prepare chapter accounts.
the second is to improve the official seal risk control measures. The official seal must be dedicated; If the official seal is lost, it shall be reported and announced in time; The use of the official seal should be clearly stipulated in the contract and other texts, such as "official seal+signature of legal representative".
the third is to improve the technical level of anti-counterfeiting and anti-theft of official seals. The company can use blockchain, electronic deposit certificate, electronic signature, reserved seal and other technical means to improve the anti-counterfeiting and anti-theft technology level of its official seal, so as to avoid the legal risk of failing to provide evidence.