Legal status and civil liability company bear

Source: http://www.ls123.tk/article/gsfl/2010-03-27/806.html

Release date: 2010-03-27 14:03:32 See: 289Font: [in]

   "Specified in the first paragraph of article forty-ninth of the civil procedure law", the citizen, legal person or other organization may become a party to a civil action. The civil procedure law defines the subject of litigation. The Supreme People's Court on civil law judicial interpretation of Article 40 to other organizations made further clear, legitimate form, organization and property, but do not have the legal personality of the organization, and other organizations are classified itemize and supplementary summary. Judicial interpretation 41 of corporate non branch agency established in accordance with the law made special provisions. "General principles of civil law" in the civil liability to the citizen, legal person shall bear civil liability for the general provisions, but in breach of contract and tort civil liability and how to bear the "parties" used in the title, that is in addition to citizens, legal person as the parties bear corresponding civil liability, law for other organization has the subject qualification should bear what responsibility for breach of contract and tort, how to bear the liability without unity. In the trial practice, the enterprise branches in its own name in civil disputes or branch staff should be caused by the infringement litigation, the litigation subject, direct line branches for the listed enterprises, directly for the defendant, the enterprises and the branch as a co the defendant. On the responsibility, have the decision enterprise directly responsible, a decision of enterprises and branches of shared responsibility, a decision branch undertakes the responsibility judgment, with branches to assume responsibility, in part by the lack of firm, and not a. Operation chaos has seriously affected the unity and fairness of the judgment. Searching for the causes are multiple, provisions of laws lead to this result. Following with the branch to take the angle of view of branch in the lawsuit main body status and civil liability.

    According to the provisions of the Civil Procedure Law of the judicial interpretation of the law, the establishment of branches have business license can be used as the parties, the launch, branches can be listed as the defendant. "Company law" the fourteenth regulation, the company may establish branch, branch does not have the qualification of legal person, and its civil liabilities shall be borne by the company. Thus, relates to the branch of the litigation, since the civil liability is assumed by the company, some people just don't think it necessary to put the company does not assume responsibility as a defendant. In 1999, the provincial economic tribunal in Changzhou held a forum on the branches and the corporation as a joint defendant of liability issues to reach a consensus, and published in the economic justice information on trial, for reference, the thought, responsibility is to assume the responsibility to repay creditors on branches, can't pay the legal entity settlement. The Supreme Court Wu Qingbao of branch of civil disputes, whether to need to put the company as a joint defendant, if the company as a joint defendant, how to assume responsibility for the following answer: Wu Qingbao thinks, the practice should be treated differently in different situations, the first kind of situation, in the lawsuit, although the company as a defendant, as long as it is authorization or approval of the company, branch management property is enough to bear civil liability, do not need to be listed as CO defendant. Second kinds of circumstances, only when the amount of debt is huge or large, branch management property is not enough to bear civil liability, or generated by the controversy is more complex, beyond the branch disposal authority, the company shall be listed as CO defendant. Wu Qingbao also believe that, in addition to small cases, branch should be the articles of association of the company and the company authorized quota limits, submitted to the people's court to the people's court for evidence, whether additional company make the right choice as a joint defendant. The company as a co defendant, should be considered as long as the contract is signed by the company, or infringe upon the consequences caused by the branch staff in the performance of duties, we should first determine the civil liability of company assets to the company management, and decision caused by the company on the company's civil consequences common bear civil liability, and the liability is not a complementary. Solutions to such disputes over Wu Qingbao has its rationality.

    Because of the establishment of a branch company is large in scale, has many things, some companies even has branches all over the country, if not the amount subject to some controversy, small disputes also be involved in, cost, manpower, etc. will The loss outweighs the gain., or branch have the ability to assume the responsibility of disputes the company added, realize the significance of the handling of the case and the purpose of litigation. While some controversial, the larger amount, and the company does not have the ability to assume responsibility, the company added, one is to ensure the smooth implementation of the plaintiff's purpose, on the other hand, also prevents the branch and the plaintiff to damage the interests of the company. But what is the procedure? What is the legal standard? For a well funded enterprises, probably hundreds of thousands of millions is small, while for other enterprises, may be small refers to the tens of thousands, how to judge the practice? The branch management property enough to bear civil liability have no way of knowing, until the executive branch property eventually determined to, and judging before the impossible subversion. Or can also through the security branch of the property to get some information, such as the author undertakes a case, branch preservation to the bank deposit is sufficient to achieve the purpose of preservation. But also cannot lump together, because the property preservation in most of the freezing of bank deposit way, not frozen to enough money in the bank can not say branch management property is not enough to bear civil liability, and not every case the plaintiff applies for property preservation. In addition, review articles, lines or other authorized branch authority, judge, will greatly increase the workload, affect the work efficiency. So, Wu Qingbao's this solution, from the theoretical analysis, consider more thoughtful, but in may judge to do a lot of review, analysis, survey work or because of understanding the causes of the additional company without additional practice operation, not the pursuit plus additional, the plaintiff is not implemented or the company Voices of discontent., the court became the object of the attack.   

    To sum up, the author believes that, in separate branch as a defendant, there may be insufficient to repay the debt and property will eventually because the company is not a party to the case, could not perform its property defeats the purpose of litigation, may also appear branch colluded with the plaintiff damages the interests of the company, did not notify them to participate in the litigation is deprived of the right to know the company. And other litigation rights. A separate company as a defendant, the smaller will appear in the target, the dispute is not the case, the company is not consumed necessary human, material and financial resources, to participate in the litigation and dispute resolution. And by distinguishing between small lawsuit, branch management property is enough to bear civil liability in practice and not rational unified implementation, will greatly increase the workload, work efficiency. Therefore, the author believes that, in the contract and tort disputes, if the contract is signed with the company name, the tort is a branch of the staff because of his actions, you can put the branch and the company as a co defendant, notify it to participate in the litigation, the company received the complaint and respondent material, through the preliminary review, comprehensive consideration, will make the decision to safeguard their own rights and interests, the court shall notify the company to participate in the litigation is to protect the right and other rights, as for companies considering whether to send personnel to participate in the proceedings or the entrusted branch relevant personnel decided by its own.

    Company and company be listed as co defendant, about how to assume civil liability, the author thinks that, if not, will be determined by the company and the company shared responsibility, or directly by the company to assume responsibility, no responsibility, litigation subject qualification, is set branch law will no meaning, is not conducive to the market, relatively independent of the asset management system requirements and the formation of. In the branch management of property is enough to bear civil liability unclear circumstances, than before the two kinds of liabilities, the company to assume responsibility, shall be borne by the company branch not part of the responsibility model in terms of achieving the purpose of litigation proceedings from the angle is more reasonable and feasible operation point of view. But the responsibility to assume additional liability model than in the general sense to many comfortable. Supplementary liability should be the first defendant in litigation property for execution, whether movable or immovable cannot assume responsibility, in order to perform the added responsibility of property, but the branch and corporate responsibility should not apply this model, first, branch office has no absolute meaning completely independent property, only their own independent management of the property; second, if you must wait until after the execution of business management of movable or immovable property is still unable to perform other payment and compensation only after the implementation of the company is not conducive to the protection of the litigation in the plaintiff's case, easy to perform long. Therefore, the branch cannot bear responsibility for Ying Congkuan to understand, should be when the expiration, the company is not in money or other parties to accept the property liability, it shall be borne by the company to assume responsibility, or may directly apply for the execution of company property.