In the battle for corporate control, obtaining and controlling the official seal is often the first focus of the issue, such as the 2020 sensation of Dangdang founder Li Guoqing snatching the company's 47 official seals, enough to illustrate the importance of the official seal to the company, as if controlling the company's official seal is equivalent to controlling the company. Although China's law gives the company legal personality, so that the company has the capacity of civil rights and civil capacity, but the legal person is, after all, an abstract concept, can not express the meaning directly like a natural person, so the company through the official seal and the legal representative of two ways to express the company's will.

Under normal circumstances, the company's official seal is in the charge of the company's legal representative. If the legal representative uses the legal representative's seal together with the official seal, it can represent the company's behavior. But in fact, the company's "separation of human and chapter" is not uncommon, that is, the legal representative and the official seal controller are different, once the two sides do not agree, it is likely to lead to a conflict in the form of expression of the company's will, and thus affect the effectiveness of the company's external behavior, which is also one of the most important manifestations of the company's behavior effectiveness disputes in practice. In the case of official seal co-management or trusteeship, the most likely to lead to the "separation of human chapters" situation. In such a case, the legal representative of the company may choose to claim the official seal by filing a company license return lawsuit.

However, in order to quickly realize the "integration of human and chapter", some legal representatives of the company re-engraved the official seal on the grounds of "loss of the official seal" and re-applied for filing with the public security department to avoid the long litigation period. However, this method contains great risks. In a recent case undertaken by the author, under the condition of co-management, the legal representative of the company engraved the official seal on the grounds of "loss of the official seal" and applied for filing in the public security department again. In the end, the official seal that had been filed was canceled for filing because "the official seal was not lost, and the reason for applying for filing the seal was inconsistent with the objective facts. This paper intends to analyze the related issues of re-engraving and filing the fictitious official seal loss, with a view to providing reference for the management of the company.

In life, the public often confuses the company seal, official seal, legal name seal and other nouns, when referring to the company seal, official seal and other words, the general default is to refer to the company's legal name seal. In fact, the meanings represented by the above three chapters belong to the relationship between containing and being contained. Article 3 of the "Measures for the Administration of Seal Public Security (Draft)" issued by the Public Security Administration of the Ministry of Public Security on August 30, 2002 clarifies the meaning of the above three chapters, stipulating that the seal refers to the official seal and the personal name seal with legal effect; the official seal Refers to state power, party and government agencies, judicial, political participation, military, armed police, democratic parties, trade unions, Communist Youth League, Women's Federation and other agencies, organizations, enterprises and institutions, civil organizations registered by civil affairs departments, resident (village) committees, deliberative and coordinating bodies and non-permanent bodies, and special business seals for contracts, finance, taxation, invoices and other business seals with legal names.

Based on the above provisions, the meaning of the word seal should belong to a broader scope. In addition to the concept of official seal, the name seal of natural persons also belongs to the category of seal, while the legal name seal is only a kind of official seal. Under normal circumstances, the company mainly has five seals, namely, the legal name seal, the financial special seal, the legal representative's private seal, the contract special seal and the invoice special seal. The legal name chapter is one of the most effective chapter, is a symbol of the rights of legal persons, on behalf of the company's will, whether it is the company's business operations, such as contract signing, bidding matters, etc., or the company's administrative affairs, such as industry and commerce, taxation and other matters, are inseparable from the company's legal name chapter. As a result, in the battle for the official seal caused by the struggle for control of the company, the parties mainly grabbed the legal name of the company. For ease of understanding and discussion, this article refers to the narrow meaning of the official seal, the official seal refers only to the legal name of the company.

As a means and certificate to maintain and reflect the social integrity system, the company seal plays an extremely important role in China's market economy activities. Due to the important role and significance of the company's official seal to the company's behavior and social activities, in order to ensure the normal operation of legal persons and prevent the official seal from becoming a tool for criminals to seek illegitimate interests or carry out illegal and criminal activities for other purposes, China has established management activities such as seal engraving, alteration, filing and cancellation, which are specifically supervised and managed by the public security department of the public security organ.

Before January 12, 2017, according to the provisions of the "Interim Management Rules for Printing, Casting and Engraving Industry" implemented in 1951, the company has the need to engrave the official seal, and must submit the base sample of the official seal and the certification documents of the agency entrusted to print the engraving to the local people's public security organ for approval and filing before printing. Specifically, Article 9 of the "Regulations on the Administration of Seal Engraving in Guangdong Province (1997 Amendment)" stipulates: "Any unit that needs to engrave a seal must apply to the county public security organ with a certificate or business license issued by the higher-level unit." Seal Engraving Permit ", with the" Seal Engraving Permit "to the seal engraving shop to engrave." That is, the public security department of the public security organ adopts the way of prior supervision to manage the company's official seal, and the engraving of the official seal is an administrative licensing matter that requires the approval of the public security organ.

On January 12, 2017, the State Council issued the decision on canceling the third batch of administrative licensing matters designated by the central government, abolishing the examination and approval system for official seal engraving. After the examination and approval is canceled, the official seal engraving filing management shall be implemented, that is, after the official seal engraving enterprise engraves the official seal, the applicant for official seal engraving, the impression and other basic information shall be reported to the public security organ for the record, The record of the record. Taking Guangdong Province as an example, the ''Notice on Printing and Distributing the Guidelines for the Work of Guangdong Official Seal Engraving and Filing Business'' stipulates that units or institutions that need to make official seals should go to the legally qualified official seal production unit in the district (county) where the registration is located to make official seals. Within 0.5 working days, the official seal shall be produced, and the stamp information and certification materials for the production of the official seal shall be verified, as well as the basic information of the collection applicant, the valid identity document information and contact information of the legal representative, operator, and handler, the on-site image information of the handler, and the official chapter production information shall be reported to the public security organ for the record.

Since then, the management of the company's official seal by the public security organs has changed from pre-supervision to post-supervision. According to the company's official seal filing information, the public security organ shall establish a unified official seal public security management information system, and gradually realize the public inquiry function. Taking Shenzhen as an example, the public can enter the company name through the "seal filing inquiry" system of Shenzhen public security, and can inquire about the official seal that the company has filed, including other special business seals such as special contract seals, and the system can display the seal code of the official seal that has been filed, so as to facilitate the public to initially identify the authenticity of the official seal in the company's behavior and ensure the safety of transactions.

Since the official seal is so important, can we carve a few more to prevent the loss of the official seal from affecting the company's business activities? The answer is no. According to Article 13 of the Measures for the Administration of Seal Public Security (Draft), units that need to engrave seals can only apply for engraving one legal name seal of the unit, that is, there can only be one valid official seal of the company, that is, the one filed with the public security organ. However, if the official seal needs to be re-engraved due to damage or loss, what should be done?

At present, with regard to the materials and procedures required for the engraving of official seals in our country, only Article 11 of the Measures for the Administration of Public Security of Seals (Draft) at the national level has made general provisions, that is, if the seal is lost, robbed or stolen, it shall be reported to the public security organ that has approved the engraving, and shall go through the formalities for filing or engraving again after declaring it invalid in the form of an announcement. In addition, there is no unified compulsory norms at the national level. Specific to localities, taking Guangdong Province as an example, Article 12 of the "Notice on Printing and Distributing the Guidelines for the Work of Guangdong Official Seal Engraving and Filing Business" stipulates: "If the official seal needs to be remade due to loss, robbery, theft, etc., the unit or institution shall declare the original official seal invalid in the newspapers and periodicals publicly issued at or above the municipal level with districts where it is located, in accordance with the provisions of Article 6 of these work guidelines, newspapers with the" lost statement "shall be produced by legally qualified public seal production units, except for state organs, people's organizations and institutions."

According to the above provisions, if the official seal is reissued due to the loss of the official seal, it is first necessary to publish a declaration of the loss of the official seal and the invalidation, and then submit relevant materials again in accordance with the requirements of official seal engraving and filing. The company's legal representative or manager shall handle the matter with a power of attorney. Under normal circumstances, the original copy of the business license is the necessary material for engraving the official seal. At the same time, in order to protect the rights and interests of the company to the maximum extent, when the company legal person applies for the official seal for the record on the grounds that the official seal is lost, the public security organ often requires the company legal person to promise that the official seal is indeed lost. For example, in Shenzhen, the public security organ will require the legal person of the company to fill in the "Registration Form for Lost Seals", which should state the details and circumstances of the lost seals, and promise not to apply for additional seals due to internal economic disputes. After the re-engraved official seal is filed by the public security organ, it becomes the only valid official seal of the company. The previously lost official seal loses its validity at the same time and can no longer represent the will of the company.

However, due to the lack of a unified mandatory standard at the national level, many problems have been exposed in the official seal engraving process. The most common one is that some companies have "separated people and chapters" due to internal economic disputes. The legal representative of the company still reissued the official seal on the grounds of the loss of the official seal and applied to the public security organ for filing, which objectively led to the existence of two official seals at the same time, seriously damaging the credibility of the company's behavior. When the holder of the official seal raises an objection to the public security organ, because there is no clear legal provision as a basis, the public security organ often falls into a dilemma when facing the question of whether the record should be revoked.

In view of the problem of "the fact that the official seal is lost and re-engraved and filed", the author summarizes the following viewpoints by searching relevant cases and combining with the specific cases undertaken by the author: if the official seal of the company is not lost, but is in the state of co-management or third-party holding, only due to the internal economic disputes of the company, the legal representative of the company re-engraves the official seal on the grounds of the grounds and filed successfully, eventually, the filing will be revoked because the filing facts do not match the objective facts. The third party of interest may directly apply to the public security administrative department of the public security organ for cancellation of the filing; or directly file an administrative lawsuit with the people's court, requesting the court to make a judgment to cancel the filing decision of the public security organ. The author summarizes the relevant issues as follows:

In the case of the company's legal person to seal lost on the grounds of the replacement of the official seal, the company's legal person to conceal the official seal did not lose the true situation, so that the public security organs into a misunderstanding, and then put on record a new official seal. However, the company actually does not meet the conditions for re-engraving and filing the new official seal if the official seal is lost. It is wrong for the public security organ to allow the legal person of the company to re-engrave and file the seal.

For example, according to the two retrial cases of (2019) Yuexing Shen No. 1891 and (2019) Yuexing Shen No. 1892, the Guangdong Provincial Higher People's Court held that the old seal of the company was still in the hands of the original co-manager and was not unrecoverable or out of control. The legal representative of the company, Lin Mou, knew that the seal of the company had not been lost and fabricated the fact of personal loss, the reason for applying for seal re-filing is obviously inconsistent with the objective facts, and the re-filing lacks the factual basis. After the new seal is filed, there are actually two sets of seals within the company's manager, which may have a significant impact on the interests of the company's customers. Therefore, if the administrative organ finds that there is no factual basis for the re-filing of the seal, and the re-filing may harm the interests of a third party or even the public interest, it shall promptly take the initiative to revoke ...... The Tianhe Public Security Bureau shall still pass the filing application for which there are obvious problems in the application materials during the filing review, without exercising its duty of prudent review. According to this, the 1. court of second instance decided to revoke the seal filing act involved in the case, which was examined by this court and was not improper.

Another example: Dalian Intermediate People's Court of Liaoning Province (2019) Liao 02 Line Final No. 523 Administrative Judgment of Second Instance also recognized the above view. The court held that the plaintiff published a statement in newspapers and periodicals that the seal was lost and invalid, and applied to the defendant for re-engraving the seal on this ground. Based on this, the defendant granted permission to re-engrave the new seal and deliver it to the plaintiff without knowing the facts. It can be seen that the plaintiff did not meet the conditions for the loss of the seal to be re-engraved, and it was wrong for the defendant to allow it to re-engrave the seal. The defendant made corrections in accordance with the foregoing provisions and then made a seal cancellation decision, and the applicable law is correct.

Based on the above, although China has abolished the official seal engraving and approval system in order to optimize the business environment and deepen the service measures for the convenience of the people and enterprises, in order to balance efficiency and transaction safety and ensure the correctness and effectiveness of the official seal, China has implemented the official seal engraving and filing management system to ensure the normal activities of legal persons. The fundamental support for the filing system is the social integrity system. If the legal representative, because of the internal disputes of the company, in order to quickly regain control of the company, will make up the fact that the official seal is lost and re-engrave the official seal and put it on record, which not only damages the legitimate rights and interests of other stakeholders of the company, but also has a negative impact on the social integrity system. Therefore, after the public security organ finds that there is no factual basis for the re-filing of the official seal, it should promptly revoke the act of filing the official seal involved in the case.

Based on Article 25 of the "the People's Republic of China Administrative Litigation Law": "The counterpart of an administrative act and other citizens, legal persons or other organizations that have an interest in the administrative act have the right to file a lawsuit." And Article 12 of the Supreme People's Court's Interpretation on the Application of the the People's Republic of China Administrative Procedure Law stipulates: "Any of the following circumstances shall fall under the" interest in an administrative act "stipulated in the first paragraph of Article 25 of the Administrative Procedure Law: ...... (IV) the cancellation or modification of an administrative act involves its legitimate rights and interests; (V) the administrative organ with the duty of handling complaints to the administrative organ in order to safeguard its own legitimate rights and interests; (VI) other situations that have an interest in administrative actions..." The co-management of the official seal is often implemented in order to avoid the disagreement of the company's management and the damage to the company's interests, and there is a significant interest relationship between the co-manager of the official seal and the official seal. If one of the parties bypasses the official seal of the co-management and takes advantage of the special status, such as the legal representative's identity, the official seal and filing, it is bound to have a significant impact on the legitimate rights and interests of the other co-management party. Based on this, the official seal co-owner often has an interest in the administrative act of the public security organ filing the new official seal, and has the right to file an administrative lawsuit against the public security organ's filing or revocation of the filing.

For example, in the (2019) Guangdong Bank Shen No. 1891 administrative litigation case, the Guangdong Provincial Higher People's Court held that: Tao Mou served as a supervisor of the company, actually participated in the management of the company, and was one of the actual co-managers of the company seal. On the grounds of the loss of the company's original seal, the re-filing of the seal essentially negates the validity of the company's original co-management seal, excludes the legal use of the original seal, and has a significant impact on Tao's legitimate rights and interests.

In the case undertaken by the author, the public security organ took the initiative to revoke the filing behavior after finding out that the facts of the filing with the official seal were inconsistent with the objective facts. The official seal co-manager filed an administrative lawsuit against the public security organ's revocation of the filing. Finally, the Yantian District People's Court also accepted the case and tried it. Although the Yantian District People's Court did not specifically discuss whether the plaintiff has the right to file an administrative lawsuit against the public security organ's revocation of the official seal for the record, it also recognized the plaintiff status of the official seal co-owner through practical actions.

Although there have been judicial precedents in practice that the act of re-engraving the official seal and filing the fictitious fact of missing the official seal should be revoked, there seems to be no direct law to support the court's decision to revoke the filing act of the public security organ, that is, there are no laws and regulations on how to deal with the public security organ after it finds that the official seal re-filing lacks factual basis. This also leads to some public security organs in life often refuse to voluntarily revoke the filing decision on the newly engraved official seal on the grounds that "whether the official seal is lost or not is subject to the will of the legal representative of the company, and the legal representative of the company thinks that the loss of the official seal is lost is lost", and the law does not directly stipulate how to deal with the act of re-engraving and filing the fictitious official seal, resulting in the existence of two official seal, the credibility of the company's behavior has brought adverse effects.

There is indeed a serious lag in legislation on the management of official seals in our country. The earliest regulation on the management of official seals is the "Interim Management Rules for the Printing, Casting and Engraving Industry" promulgated by the Ministry of Public Security with the approval of the Political and Legal Committee of the State Council in August 1951. Although this regulation is still in use today, it is too long after all and has seriously lagged behind the social, political and economic development of our country. Since then, the "Regulations of the State Council on the Management of Seals of State Administrative Organs and Enterprises and Institutions and Social Organizations" implemented on October 31, 1999 also mainly focused on the specifications, styles, internal production and management of seals. And the above-mentioned laws and regulations are not very detailed or not at all on how to carve, file and sell. This also directly leads to the fact that in reality, the public security organs often do not have the courage to directly revoke the relevant filing behavior after discovering that there is no factual basis for the re-filing of the official seal, which virtually increases the cost of safeguarding the rights of the third party.

Some people have tried to quote Article 13 of the Ministry of Public Security's "Measures for the Administration of Seal Public Security (Draft)" on August 30, 2002 to solicit opinions from all walks of life: "Units that need to engrave seals can only apply for engraving one. The legal name of the unit." And Article 26 stipulates: "whoever, in violation of the provisions of articles 12 and 13 of these measures, carve seals in foreign languages or carve seals in Chinese and foreign languages without authorization, and carve two or more legal names of units in violation of regulations, confiscate the seals illegally made and impose a fine of not less than 2,000 yuan but not more than 10,000 yuan." It is hoped that "there can only be one official seal of the company, but objectively there are two" as the reason to persuade the public security organ to voluntarily revoke the official seal filing decision that lacks factual basis. However, the public security organ refused on the grounds that the above-mentioned "Measures for the Administration of Seal Public Security (Draft)" was only a draft and was not specifically distributed to local public security organs for implementation. After the new official seal was filed, the original official seal was automatically invalid.

The legal representative of the company fabricated the fact that the official seal was lost, submitted the application materials recording the false declaration when reapplying for the official seal and re-filing, and applied for the re-engraving and filing of the new official seal, which is fully in line with the situation of "submitting false materials and concealing important facts". Therefore, can the legal basis for revocation of the filing be found from the perspective of submitting false materials? The author found that the second paragraph of Article 69 of the "Administrative Licensing Law" stipulates: "If a licensee obtains an administrative license by fraud, bribery and other improper means, it shall be revoked." Article 64 of the "Regulations on the Administration of the People's Republic of China Company Registration" also stipulates: "Whoever submits false materials or adopts other fraudulent means to conceal important facts and obtains company registration shall be ordered by the company registration authority to make corrections and impose a fine of 50000 yuan up to 500000 yuan; If the circumstances are serious, the company registration or business license shall be revoked." However, since the official seal filing does not belong to the administrative license, nor does it belong to the company registration matter, there is basically no court to directly quote the above provisions.

Although there are no laws and regulations in our country to specify how to deal with the public security organs after they find that the official seal re-filing lacks factual basis, the act of revoking the filing decision by the public security organs belongs to the error correction act of the public security organs in the process of performing their supervision duties afterwards. At this time, the public security organs voluntarily revoke the filing decision or the court decides that the public security organs revoke the filing will avoid the problem of imperfect laws and regulations.

Regarding the determination of the nature of the public security organ's decision to revoke the official seal filing, in the case specifically undertaken by the author, the Shenzhen Yantian District People's Court held that the public security organ's action to revoke the filing of the official seal was based on the fact that the plaintiff's relevant personnel applied for the filing of the seal on the grounds that the original seal was lost, and the filing of the official seal was revoked. According to the provisions of Article 62 of the the People's Republic of China Administrative Procedure Law on whether the plaintiff applies to withdraw the lawsuit or the defendant changes its administrative act before the people's court announces its judgment or ruling on an administrative case, and whether the plaintiff agrees and applies to withdraw the lawsuit or not is allowed by the ruling of the people's court, it can be seen that the administrative organ as the defendant in the administrative lawsuit has the right to correct the wrong administrative act by itself, in the administrative procedure, if the administrative organ finds that the administrative act made is indeed wrong, it also has the statutory power of self-correction. At the same time, in combination with Article 9 of the State Council's "Decision on Canceling the Third Batch of Administrative Licensing Matters Designated by the Central Government", the county-level public security organs should strengthen the supervision during and after the event.

 In addition, the Dalian Intermediate People's Court of Liaoning Province (2019) Liao 02 Bank Final No. 523 Administrative Judgment of Second Instance also determined that the public security organ's revocation of the filing decision was a correction of the wrong behavior. The Dalian Intermediate People's Court held that Article 19 of the Provisions on the Internal Law Enforcement Supervision of Public Security Organs stipulates: "The illegal and inappropriate law enforcement activities of public security organs and their people's police shall be dealt with as follows... (I) the wrong handling or decision shall be revoked or changed." The plaintiff did not meet the conditions for the loss of the seal to be re-engraved, and the defendant was wrong to allow the seal to be re-engraved. The defendant made corrections in accordance with the foregoing provisions and then made a seal cancellation decision, and the applicable law is correct.

The nature of the public security organ's revocation of the record is identified as an act of error correction, which directly leads to the party who makes up the fact that the official seal has been lost and the official seal has been put into a passive position when seeking relief. In the face of objective facts, the party who made up the fact that the official seal was lost did not have a good reason to justify the fact that he made up the fact that the official seal was lost. He often could only find out whether there were procedural violations in the procedure for the public security organ to make the decision to cancel the filing, and tried to deny the public security organ's decision to cancel the filing through procedural issues, such as whether to protect the relative's statement and defense rights. Because the nature of the public security organ's revocation of the record is an act of error correction, but the current law of our country does not clearly stipulate the procedure of the administrative organ's own error correction, at this time, on the contrary, the administrative counterpart claims that the procedure is illegal in the application of the law, and then the claim is rejected by the court on the grounds that there is no basis in the law.

Although in the battle for control of the company, obtaining and controlling the official seal is often the first focus of the problem, but the gentleman loves the chapter, but also to take the right way. After all, it is too violent to obtain the official seal by snatching, and it is prone to physical conflicts. Once it is not well grasped, it is very likely that the contradiction will intensify and become a criminal case, and the gain will not be worth the loss. The fact that the official seal is lost can be re-engraved and filed. Although the re-established official seal can be used to represent the company's behavior for the time being, once the third party of interest raises an objection or administrative lawsuit to the public security organ or the people's court, the public security organ will probably cancel the filing of the re-established official seal, and the company's behavior made with the re-established official seal will also face the risk of being revoked or invalid, the objectives that have been achieved also face the risk of being restored one by one, which will not only damage the credibility of the company's actions, but also have a negative impact on the company's goodwill. Therefore, even the legal representative may not arbitrarily carve the official seal.

From the perspective of corporate governance, the actual controller of the company should pay full attention to the custody and use of the company's official seal, formulate rules for the use of seals, and try to avoid the company's official seal from the control of the actual controller of the company. Under the condition that it is not necessary to separate the company's official seal from control, corresponding procedures and documents should be prepared and improved. For example, a written co-management agreement must be signed for co-management of the official seal, and agreements should be made on the co-management period, the printing rules during the co-management period, and how to deal with the official seal after expiration, so as to ensure that the official seal can be safely and quickly returned to the control of the company's actual controller, and to avoid the company's operation deadlock as far.

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