The State Council promulgated on May 9, 2007 the revised Administrative Measures for the Registration of Partnership Enterprises (the “Measures”). As the supporting regulation to the new revised Partnership Enterprises Law, the Measures were put in force together with the new Partnership Enterprises Law on June 1, 2007.
Compared with the Administrative Measures for the Registration of Partnership Enterprises promulgated in 1997 (the “Old Measures”), the major changes of the Measures are as follows:
1. The Measures manifest the transition of administration from substantive examination to formal examination.
The Measures provide that the applicant shall be responsible for the authenticity of the application materials. The Measures delete all the words “approval” in the Old Measures. Although the Measures still require annual inspection of the partnership enterprises, it deletes the old provision “the registration authority shall carefully examine the information submitted by the partnership enterprises for annual inspection as to ascertain qualifications for the continuing operation of the enterprises”. Moreover, the Measures provide that where the application materials submitted by an applicant are complete and in statutory forms, the registration authority shall make the registration on the spot if possible and issue a business license for the partnership enterprise. This provision also shows the transition to formal examination.
2. The Measures clarify the registration items for the partnership enterprises.
The registration items under the Old Measures include name, business site, business scope, way of operation and the names and domiciles of partners, amount and mode of contribution of the enterprise. The Measures make some addition or alteration to the registration items according to related provisions of the new Partnership Enterprises Law. The registration items under the Measures include type of the partnership enterprise, name, main business place, managing partners, and partnership term.
The types of partnership enterprises include general partnership enterprises (including special general partnership enterprises) and limited liability partnership enterprises.
The words “general partnership”, “special general partnership” or “limited liability partnership” shall be part of the name of a partnership enterprise and comply with the provisions on the registration of enterprise names.
A partnership enterprise can only have one main business site which shall be located within the administrative jurisdiction of the registration authority.
Where all the partners decide to entrust a managing partner, a letter of authorization issued by all the partners shall be submitted to the registration authority. In case the managing partner is a legal person or other organization, the letter of authorization for the entrustment of a representative or the identity certificate of this assigned representative shall also be submitted.
But no partner with limited liability shall become a managing partner.
Where a partnership term is set out in the partnership agreement, it shall be included in the registration items as well.
3. The Measures clarify required documents and registration procedures.
The Measures spell out the required documents respectively for establishment registration, alteration registration, registration of branches and deregistration of a partnership enterprise.
The Old Measures did not clarify the applicant of registration, while the Measures provide that the representative designated or the agent entrusted by all the partners shall apply to the registration authority for establishment registration, and the managing partner shall apply to the original registration authority for alteration registration. The Measures specially stipulate that the liquidators shall apply to the original registration authority for deregistration.
With respect to the required documents, the Measures change the old provision “Certificates of contributions” in the Old Measures to “confirmation letters issued by all the partners for each partner’s financial subscription or actual paid-up contribution”. At the same time, the Measures stipulate that where the financial contributions are made in kind, intellectual property right, land use right or other properties, a confirmation letter on negotiated values signed by all the partners or an evaluation certificate issued by the legal evaluation institution shall be submitted to the registration authority. Where any law or administrative regulation provides that a professional qualification certificate of the partner is required for the establishment of a special general partnership enterprise, a pertinent certificate shall be submitted to the registration authority.
With respect to the registration procedure, the Measures provide that “where the application materials submitted by an applicant are complete and in statutory forms, the registration authority shall make the registration on the spot if possible and issue a business license for the partnership enterprise. Except the circumstance as provided in the preceding paragraph, the registration authority shall, within 20 days after receipt of an application, make a decision as to whether the registration is accepted or not. If the registration authority decides to accept the registration, it shall issue a business license for the partnership enterprises; otherwise, it shall give a written reply and make an explanation to the applicant.”
4. The Measures authorize the State Administration for Industry and Commerce to formulate special provisions on the registration jurisdiction over special general partnership enterprises and limited liability partnership enterprises.
5. The Measures clarify the legal liability for illegal activities in registration, strengthens relevant penalty, and links up related provisions with the PRC Criminal Law.
6. The Measures make some provisions concerning the registration fee.