1. The duty behavior of the legal representative is the behavior of an enterprise as a legal person, so the civil liability arising therefrom shall be borne by the enterprise/company. Generally, the legal representative does not bear civil liability directly to the third party, but only for his own fault. ?
2. Because the unit may be subject to double sanctions for violating the law, the legal representative, as the person in charge, should bear personal legal responsibility in addition to the unit responsibility of the legal person. ?
The civil liability of the legal representative can be divided into the following categories:
(1) Be liable for civil compensation to the legal person due to business mistakes.
Article 43 of the General Principles of the Civil Law: An enterprise as a legal person shall bear civil liability for the business activities of its legal representative and other staff members.
The Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) If the legal representative and other staff members of an enterprise as a legal person engage in business activities in the name of a legal person and cause economic losses to others, the enterprise as a legal person shall bear civil liability. After a legal person assumes responsibility for a third party, it may claim compensation from the legal representative or other staff at fault.
2. The chief accountant or chief financial officer is generally responsible for the financial management, accounting and supervision of the company.
According to Article 50 of the new Accounting Law: "The person in charge of a unit refers to the legal person in charge of the unit or the main person in charge of exercising functions and powers on behalf of the unit as stipulated by laws and administrative regulations." The new "Accounting Law" clearly stipulates the accounting responsibilities of the heads of seven units. To sum up, there are mainly the following six aspects:
1, the responsibility to ensure the quality of accounting information. Article 4 of the new Accounting Law stipulates: "The person in charge of the unit is responsible for the authenticity and integrity of the accounting work and accounting data of the unit."
2. Responsibility to ensure the quality of financial accounting reports. Article 21 of the new Accounting Law stipulates: "The financial accounting report shall be signed and sealed by the person in charge of the unit, the person in charge of accounting work and the person in charge of the accounting institution (accounting supervisor); The unit that sets up the chief accountant must also be signed and sealed by the chief accountant. The person in charge of the unit shall ensure that the financial accounting report is true and complete. "
3. Establish and improve the internal accounting responsibility supervision system. Article 27 of the new Accounting Law stipulates: "All units shall establish and improve the internal accounting supervision system of their own units."
4, to ensure the responsibility of accounting institutions and accounting personnel to exercise their functions and powers according to law. Article 28 of the new Accounting Law stipulates: "The person in charge of a unit shall ensure that accounting institutions and accountants perform their duties according to law, and shall not instruct, instruct or force accounting institutions and accountants to handle accounting affairs in violation of the law."
5, accept the responsibility of supervision according to law. According to the provisions of Article 31 of the new Accounting Law, the person in charge of the unit must accept the supervision and inspection carried out by the relevant supervision and inspection departments in accordance with the provisions of relevant laws and administrative regulations, and truthfully provide accounting information and relevant materials.
Shall not refuse, conceal or issue false reports, shall truthfully provide accounting information and related materials to the entrusted accounting firm, and shall not in any way require or imply that certified public accountants and their accounting firms issue false or improper audit reports. Otherwise, you should also bear corresponding legal responsibilities.
6. Set up accounting institutions according to law and allocate the responsibilities of accounting personnel. According to the provisions of Article 36 and Article 38 of the new Accounting Law, all units should set up accounting institutions according to the needs of accounting business, or set up accountants and designated accounting supervisors in relevant institutions.
To sum up, the difference between an enterprise legal person and a financial officer lies in whether it is a natural person. From the perspective of civil capacity, the two are different. The rights of the corporate are greater than those of the financial representative, who is under the jurisdiction of the corporate.
Extended data:
For legal persons who are not state organs, state-owned enterprises and institutions, their legal representatives may also serve as financial directors. However, state organs, state-owned enterprises and institutions should implement the avoidance system when hiring accounting personnel, and may not be the person in charge of finance.
Many civil and commercial laws, such as the Company Law and the Partnership Enterprise Law, do not prohibit the legal representative of a company from concurrently serving as the chief financial officer.
Article 16 of the Basic Accounting Work Standard: Article 16 State organs, state-owned enterprises and institutions shall adopt the avoidance system when hiring accounting personnel. The immediate family members of a unit leader shall not be the person in charge of the accounting institution or the accounting supervisor of the unit.
According to the provisions of Article 30 of the Criminal Law, companies, enterprises, institutions, organs and organizations that commit acts that endanger society shall be criminally liable if they commit crimes by units according to the law.
Article 3 1 of the Criminal Law stipulates: "If a unit commits a crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished. If there are other provisions in the specific provisions of this Law and other laws, those provisions shall prevail. "
It can be seen that only the subject of the crime of tax evasion stipulated in the criminal law is a special subject, and taxpayers or withholding agents can constitute it (except tax officials as criminals of this kind of crime).
Making false accounts is an illegal and criminal search, and if it does not constitute a crime, only administrative punishment will be given. If the case constitutes a crime, criminal responsibility shall be investigated in accordance with China's criminal law. Generally, in the case of unit crime, the criminal law stipulates that only two kinds of people shall be investigated for legal responsibility:
The first person is the person who is directly responsible. In other words, the emissary of illegal acts can be the legal representative, financial manager or chief financial officer.
The second kind of person is the person who is directly responsible, that is, the person who handles illegal acts, usually the accountant of the unit.
For the legal representative, the criminal law only requires the legal person to bear the legal responsibility for tax evasion in three cases:
In the first case, if the legal representative is the person directly responsible for tax-related violations. Tax evasion was done by the legal representative himself, and no one else in the company knew it. Then you have to bear legal responsibility.
In the second case, if the legal representative instructs the chief financial officer and accountant of the enterprise to operate, he shall bear legal responsibility. . In the tax case of Liu Xiaoqing, the money paid by TV stations to broadcast Liu Xiaoqing's series should be regarded as operating income. But when the accountant asked her for instructions, she asked to hang this part of her income in a current account. Then this behavior belongs to Liu Xiaoqing's instigation.
In the third case, the legal representative does not stop the company from evading taxes. Although in this case, the legal representative did not participate in illegal acts, but he knew that the unit did not stop tax evasion, he should also bear the corresponding legal responsibility.
References:
Baidu encyclopedia-enterprise legal person
References:
Baidu Encyclopedia-CFO