商事登记条件问题研究

发布时间：2018-04-22 10:27

本文选题：商事登记改革 + 商事登记条件　；参考：《中共江苏省委党校》2017年硕士论文

【摘要】：商事登记条件作为商事登记制度中申请人获得商事主体资格的最低要求,从行政行为角度理解,也是行政许可行为、行政确认行为等行政行为在商事领域的具体表现形式。商事登记条件不仅包括实体性条件,也包括程序性条件内容,不仅要厘清商事主体资格与营业资格条件,而且要厘清商事登记条件与监管条件之间关系。商事登记条件是商事登记的功能能否发挥的关键,合理设定商事登记条件具有重大意义。第一,商事登记条件是科学界定政府市场监管职能的关键,是市场经济条件下发挥政府职能基本要求的具体体现。第二,商事登记条件对商事主体的权利、义务会产生不同程度的影响,反映了商事主体市场地位和市场行为的基本要求。第三,商事登记条件是明确政府部门之间职责划分的基本前提,登记条件的适用涉及多个部门之间的关系,条件的变化则会导致不同部门之间职权关系发生变化。我国原有商事登记条件制度存在登记条件设定依据不统一、条件内容不合理、登记程序不规范等问题。商事登记改革通过降低商事主体资格条件,分离商事主体资格与营业资格条件,优化登记程序和统一登记材料来达到降低市场准入条件和规范登记条件的目的。然而,商事登记改革仍存在诸多问题待需解决,其中包括对商事登记行为定性不清,与后续监管执法产生冲突等问题。一是各地改革措施在立法层面没有加以统一规范;二是各部门之间职责梳理不清;三是登记程序没有予以明确规范等。本文针对上述问题,提出以下进一步改革措施:第一,要在立法层面对登记条件问题作出回应,一方面整合现有商事登记管理的单行法规,尽快制定出台统一的商事登记地方性法规,对现有的改革措施以立法的形式加以确认。同时,在市场监管类法律制度中,需要规范商事登记前置许可、后置许可的设定。第二,分类规范商事登记实体性条件,分别设置主体资格条件与营业资格条件。通过理清商事登记主体资格条件的原始目的,合理设定商事主体资格条件。第三,需要进一步简化登记流程,建立统一登记标准,实行统一登记材料的清单式管理。第四,明确政府部门的职责分工,同时“照”与“证”管理中分别所维系的商事登记条件和商事主体监管条件应当予以区分,从而进一步厘清商事登记中政府部门之间的职责分工。工商部门和相关许可部门监管权分配需要根据改革的推进作相应调整,科学划分监管对象。
[Abstract]:As the minimum requirement for the applicant to obtain the qualification of commercial subject in the commercial registration system, the condition of commercial registration is the concrete form of administrative act such as administrative license act, administrative confirmation act and so on. The condition of commercial registration includes not only substantive conditions, but also procedural conditions. It is necessary not only to clarify the qualifications of commercial subjects and business qualifications, but also to clarify the relationship between commercial registration conditions and regulatory conditions. The condition of commercial registration is the key to the function of commercial registration, and it is of great significance to set up the condition of commercial registration reasonably. First, the condition of commercial registration is the key to scientifically define the function of government market supervision, and it is also the concrete embodiment of the basic requirement of giving play to government function under the condition of market economy. Secondly, the conditions of commercial registration have a different degree of influence on the rights and obligations of commercial subjects, reflecting the basic requirements of the market position and market behavior of commercial subjects. Thirdly, the condition of commercial registration is the basic premise of defining the division of responsibilities between government departments. The application of registration conditions involves the relationship between several departments, and the change of conditions will lead to changes in the relationship of authority between different departments. There are some problems in the original commercial registration condition system of our country, such as the basis of setting the registration condition is not uniform, the content of the condition is unreasonable, and the registration procedure is not standardized. The reform of commercial registration can reduce the market access conditions and standardize the registration conditions by reducing the qualification conditions of commercial subjects, separating the qualification of commercial subjects from the conditions of business qualifications, optimizing the registration procedure and unifying the registration materials. However, there are still many problems to be solved in the reform of commercial registration, including unclear characterization of commercial registration and conflicts with subsequent supervision and enforcement. First, the local reform measures in the legislative level has not been unified; second, the responsibilities of various departments are not clear; third, the registration procedures have not been clearly standardized and so on. In view of the above problems, this paper puts forward the following further reform measures: first, to respond to the registration conditions at the legislative level, on the one hand, to integrate the existing separate laws and regulations on the management of commercial registration. The local laws and regulations on commercial registration are formulated as soon as possible, and the existing reform measures are confirmed in the form of legislation. At the same time, in the legal system of market supervision, it is necessary to regulate the setting of pre-license and post-license of commercial registration. Second, classify and standardize the substantive conditions of commercial registration, and set up subject qualification conditions and business qualification conditions respectively. By clarifying the original purpose of the qualification conditions of commercial registration subjects, the qualification conditions of commercial subjects are reasonably set up. Third, it is necessary to further simplify the registration process, establish unified registration standards, and implement the list management of unified registration materials. Fourth, the division of responsibilities of government departments should be clearly defined, and at the same time, the conditions of commercial registration and the supervision of commercial subjects maintained in the management of "according to" and "certificate" should be distinguished. In order to further clarify the division of responsibilities between government departments in commercial registration. The distribution of supervision power between the industrial and commercial departments and the relevant licensing departments should be adjusted according to the advance of the reform, and the objects of supervision should be scientifically divided.
【学位授予单位】：中共江苏省委党校
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.294

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