|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Laws of Macau |
[Database Search] [Name Search] [Noteup] [Download] [Help]
COMMERCIAL CODE
EXERCISE OF COMMERCIAL ENTERPRISE IN GENERAL
COMMERCIAL ENTREPRENEURS, COMMERCIAL ENTERPRISES AND ACTS OF COMMERCE
GENERAL PROVISIONS
(Commercial entrepreneurs)
Commercial entrepreneurs are:
a) individuals and collective persons which, in their own name, themselves or through third parties, exercise a commercial enterprise;
b) commercial companies.
(Commercial enterprise)
1. A commercial enterprise is any organization of productive factors for the exercise of an economic activity aimed at production for systematic and lucrative exchange, namely:
a) industrial activity for the production of goods or services;
b) activity of intermediation in the circulation of goods;
c) transport activity;
d) banking and insurance activity;
e) activities auxiliary to the above mentioned ones.
2. The organization of factors of production for the exercise of an economic activity which is not separable from the person exercising it is not considered a commercial enterprise.
(Acts of commerce)
1. The following are considered acts of commerce:
a) acts especially regulated in the law as a result of the special needs of commercial enterprises, namely those mentioned in this Code, and analogous acts;
b) acts practiced in the exercise of a commercial enterprise.
2. The acts practiced by a commercial entrepreneur are considered as being in the exercise of the respective enterprise, if from such acts or from the circumstances surrounding their practice the opposite does not emerge.
(Subsidiary law)
Cases not foreseen in this Code are regulated by the norms of this law applicable to analogous cases and, in their absence, by those norms of the Civil Code which do not contradict the principles of commercial law.
COMMERCIAL CAPACITY
(Who can be commercial entrepreneur)
A commercial entrepreneur can be any individual, resident or non-resident, or collective person, with or without registered office in the Territory, endowed with civil capacity, without prejudice to special provisions.
(Prohibition of exercise of commercial enterprise)
A person lacking capacity cannot exercise a commercial enterprise by himself, even if only with goods which he is free to dispose of.
(Commercial entrepreneur lacking legal capacity)
If, in accordance with civil law, a legal representative obtains judicial permission to acquire a commercial enterprise for a person lacking legal capacity, or to continue running an enterprise that he has acquired by succession or donation, the person lacking legal capacity is considered a commercial entrepreneur.
(Exercise of commercial enterprise of a person lacking legal capacity)
1. In the case mentioned in the previous article, if the person lacking legal capacity is a minor or interdicted, the exercise of his commercial enterprise, in the absence of an especially qualified person appointed by the court, shall be conducted by the legal representative.
2. If it is a person lacking legal ability [inabilitado], the exercise of his commercial enterprise, in the absence of specific regulation by the court, shall be conducted by himself; regarding the acts which may affect the existence or consistency of the enterprise, he shall be assisted by a curator.
IMPEDIMENTS AND INCOMPATIBILITIES FOR EXERCISING OF A COMMERCIAL ENTERPRISE
(Who cannot be a commercial entrepreneur)
Commercial entrepreneurs cannot be:
a) collective persons which do not have material interests as their object;
b) those who are legally forbidden from exercising a profession connected to the exercise of a commercial enterprise.
(Capacity of the Territory and the municipality)
1. The Territory, when exercising a commercial enterprise, does not acquire the status of commercial entrepreneur; however, regarding such exercise, it is subject to the provisions of this Code.
2. The previous paragraph applies to the entities mentioned in subparagraph a) of the previous article.
LEGITIMACY OF MARRIED COMMERCIAL ENTREPRENEUR
(Powers of commercial entrepreneur)
A commercial entrepreneur who is married in a regime of conjunction of assets does not require the assent of the spouse to:
a) in the normal course of his activity, transfer or create charges over goods that compose the commercial enterprise;
b) transfer or create charges over goods which, irrespective of their nature, are the result of the activity of the commercial enterprise.
OBLIGATIONS OF COMMERCIAL ENTREPRENEURS
(Special obligations of commercial entrepreneurs)
A commercial entrepreneur is especially obliged to:
a) adopt a firm;
b) have commercial bookkeeping;
c) provide for the entry in the commercial register of acts subject to registration;
d) render accounts.
(Small entrepreneurs)
1. Small entrepreneurs are not subject to the obligations mentioned in subparagraphs a) to c) of the previous article, without prejudice to the following paragraph.
2. By portaria of the Governor, small entrepreneurs may become subject, wholly or partly, to the observance of any of the obligations mentioned in the previous paragraph.
3. The attribution of the status of small entrepreneur shall be decided on the basis of criteria set by portaria of the Governor.
FIRM
GENERAL PROVISIONS
(Obligation to have firm)
1. The commercial entrepreneur is named, in the exercise of his enterprise, under a commercial name, which is his firm, and he must sign the documents related to the enterprise with it.
2. The commercial entrepreneur can sue and be sued under his firm.
(Principle of truth)
1. The elements used in the composition of the firm must be truthful and not induce error regarding the identity, nature, dimension or activities of its holder.
2. It is not permitted to use in the composition of the firm:
a) characteristic elements, even if made of fantasy designations, acronyms or compositions, which suggest activities different from those that the holder exercises or proposes to exercise;
b) expressions that may induce error regarding the legal nature of the entrepreneur, namely the use, by individuals, of designations that suggest the existence of a collective person, or, by collective persons for profit, of expressions normally used to designate public entities or non-profit associations.
(Principle of novelty)
1. The firm must be distinct and not susceptible to be confused or mistaken with any other already registered.
2. In assessing the distinction and the possibility of confusion or mistake, the type of entrepreneur, his domicile or registered office and, additionally, the affinity or proximity of the activities exercised or to be exercised shall be considered.
3. Expressions in normal use and place names, as well as any indication of geographical origin, are not considered of exclusive use.
4. The incorporation of registered distinctive signs in the firm is subject to evidence of their legitimate use.
5. In the assessment mentioned in paragraph 2, the existence of names of business premises, signs or trademarks so similar that they may induce error regarding the holder of such distinctive signs shall also be considered.
(Obligation to use Portuguese and Chinese languages)
1. The firm shall compulsorily be written in one or both of the official languages; in the latter case, it can also have an English version.
2. If the firm is written in both official languages, and is composed of expressions that allude to the commercial activity exercised or to be exercised, there must be a minimum of correspondence between the two versions.
3. The use of words which are not part of the official languages is excepted from paragraph 1 if such words:
a) are part of the composition of firms already registered;
b) are common expressions without an adequate translation in the official languages or are of general use;
c) correspond, wholly or partly, to names or firms of shareholders;
d) are trademarks of legitimate use, in accordance with the respective legal provisions;
e) result from the merging of words or parts of words which belong to languages allowed in accordance with this article, directly related with the activities exercised or to be exercised or, further, taken from the other elements of the firm or from the names of the shareholders;
f) aim at facilitating larger penetration of the market to which the activities exercised or to be exercised are directed.
(Other requirements)
1. Firms cannot offend public morals and good mores [bons costumes].
2. Firms must not disrespect symbols of the Territory, persons, epochs or institutions whose name or meaning should be safeguarded on account of historical, scientific, institutional, cultural or other worthwhile reasons.
3. Firms must not include expressions which correspond to qualities or excellencies to the detriment of other persons.
(Firms registered outside the Territory)
The admissibility of firms registered outside the Territory is subject to evidence of such registration in the place of origin and to the absence of susceptibility to confusion with firms already registered in Macao.
(Exclusive use of firm)
1. The right to the exclusive use of the firm only is created after its registration by the respective holder in the competent office.
2. The previous paragraph does not prejudice the possibility to void or to declare void a firm, or its lapse, in accordance with this Code.
(Illegal use of the firm)
The illegal use of a firm grants to the interested parties the right to demand its prohibition, as well as compensation for resulting damages, without prejudice to criminal proceedings, if appropriate.
SPECIAL PROVISIONS
(Composition of firm of commercial entrepreneurs)
1. A firm of commercial entrepreneurs can be composed:
a) of their civil name, complete or abbreviated, as necessary for the perfect identification of their person; it is permitted to add a nickname;
b) of the name or firm of one, some or all of the shareholders or partners;
c) of fantasy designations;
d) of expressions alluding to the commercial activity undertaken or to be undertaken;
e) by joining elements mentioned in the previous subparagraphs.
2. If the firm of an individual commercial entrepreneur is exclusively composed in accordance with subparagraph a) of the previous paragraph, and the firm to be registered and another one already registered are identical, the entrepreneur who wants to register the new firm, shall, alternatively or jointly:
a) if the firm corresponds to his complete name, use his abbreviated name;
b) if the firm corresponds to his abbreviated name, add or remove one of his names or surnames;
c) add fantasy designations or an expression alluding to the commercial activity undertaken or to be undertaken.
(Firm of individual commercial entrepreneur)
The firm of an individual commercial entrepreneur may have the addition 'Empresário Individual' or, if written in Portuguese language, the initials 'E.I.'.
[As amended by Law no. 6/2000, of April 27]
(Firm of general partnerships)
1. The firm of general partnerships shall have the addition 'Sociedade em Nome Colectivo' or, if written in Portuguese language, the initials 'S.N.C.'.
2. Anyone who, not being a shareholder, allows his name or firm to appear in the firm of a general partnership shall be jointly liable with the shareholders for the obligations of the company.
(Firm of limited partnerships)
1. The firm of simple limited partnerships shall have the addition 'Sociedade em Comandita' or, if written in Portuguese language, the initials 'S.C.'; the firm of limited partnerships by shares shall have the addition 'Sociedade em Comandita por Acções' or, if written in Portuguese language, the initials 'S.C.A.'.
2. Anyone who, not being a shareholder with unlimited liability, allows his name or firm to appear in the firm of a limited partnership shall be jointly liable with the unlimited liability shareholders for the obligations of the company.
(Firm of private companies)
The firm of private companies shall have the addition 'Limitada' or, if written in Portuguese language, the abbreviation 'Lda.'.
(Firm of single shareholder private companies)
The firm of single shareholder private companies shall have the addition 'Sociedade Unipessoal Limitada' or, if written in Portuguese language, 'Sociedade Unipessoal Lda.'.
(Firm of public companies)
The firm of public companies shall have the addition 'Sociedade Anónima' or, if written in Portuguese language, the initials 'S.A.'.
(Firm of economic interest groupings)
The firm of economic interest groupings shall contain the addition 'Agrupamento de Interesse Económico' or, if written in Portuguese language, the initials 'A.I.E.'.
(Firm of other collective persons commercial entrepreneurs)
The firm of collective person commercial entrepreneurs other than companies or economic interest groupings shall have an addition identifying the type of collective person.
(Transfer of firm)
1. The acquirer of a commercial enterprise, either inter vivos or mortis causa, may continue to run it under the same firm, if allowed to do so, adding or not a statement indicating that he succeeded in its use.
2. The granting of the permission mentioned in the previous paragraph is a power of the transferor; in the case of a transfer as a result of death, and if the deceased has not made determinations, in writing, on the matter, the permission shall be granted by the majority of the heirs, regardless of whether it is a transfer to a third party or to an heir.
3. If the firm of a collective person commercial entrepreneur includes the name or firm of a shareholder or associate, it is not necessary to have his assent for the transfer of the firm, unless the act of incorporation provides otherwise.
4. In the case mentioned in the previous paragraph, the shareholder or associate shall cease to be liable for the obligations contracted in running the transferred enterprise, from the moment of registration and publication of the act of transfer.
5. Whoever acquires the right to temporarily run a commercial enterprise that belongs to another person can use the firm of the owner, regardless of permission.
6. The transfer of the firm is only possible in conjunction with the commercial enterprise to which it is connected and is subject to registration.
(Withdrawal or decease of shareholder or associate)
1. The withdrawal or decease of a shareholder or an associate whose name or firm appears in the firm of a collective person commercial entrepreneur, does not cause a need to amend it, unless the act of incorporation provides otherwise.
2. Paragraph 4 of the previous article shall apply to the case regulated in the previous paragraph.
EXTINCTION OF FIRM
(Void firm)
1. A firm shall be void if its composition breaches articles 15, 17 or 18.
2. A firm can only be declared void by judicial decision.
3. The declaration that a firm is void shall be registered and published.
(Voidable firm)
1. A firm shall be voidable if its composition breaches the rights of third parties.
2. A firm may be voided by means of judicial proceedings initiated by an interested party within three years from the date of the granting of its registration.
3. The right to claim the annulment of a firm registered in bad faith is not subject to limitation of actions.
4. Paragraph 3 of the previous article shall apply to the annulment of the firm.
(Lapse of firm)
The right to a firm lapses:
a) by reason of closure and liquidation of the enterprise;
b) by dissolution and liquidation of the collective person;
c) by non-use during three years.
(Declaration of lapse of firm)
1. The lapse of a firm is declared by the competent register upon request of interested parties.
2. The holder of the registration shall be notified to reply, within one month, to the request for lapse.
3. After such time limit has expired, the register shall decide, within 15 days.
4. The declaration of lapse can be appealed in court.
5. The declaration of lapse shall be registered ex officio and shall be published.
(Renunciation of firm)
1. A holder can renounce the firm, provided that he expressly declares this to the competent register.
2. The declaration of renunciation is made in writing, with the signature of the holder certified by his presence.
COMMERCIAL BOOKKEEPING
GENERAL PROVISIONS
(Obligation of commercial bookkeeping)
A commercial entrepreneur is obliged to have organized bookkeeping, adequate to his enterprise, in order to enable chronological knowledge of all his operations, as well as the periodic preparation of balance sheets and inventories.
(Compulsory books)
1. A commercial entrepreneur is obliged to keep a book of inventories and balance sheets, as well as other books, as determined by means of an executive order.
2. Besides the books mentioned in the previous paragraph, collective person commercial entrepreneurs shall keep other books for minutes.
3. The books can be made of loose sheets.
4. The loose sheets shall be sequentially numbered and initialed by any duly authorized member of the management or the administration, or by the secretary, who shall also prepare the opening and closing statements.
5. Without prejudice to the provisions of the previous paragraphs and to special provisions, the number and types of books of any commercial entrepreneur, and the method of their keeping, are entirely a matter for his discretion.
[As amended by Law no. 6/2000, of April 27]
(Compulsory legalization)
1. Legalization of commercial entrepreneurs' compulsory books is mandatory.
2. Legalization of filled books is allowed by means of mention of this fact in the opening statement.
3. The legalization of books already filled, as well as of loose sheets, shall be done within three months from the end of the accounting period.
(Legalization of compulsory books)
1. Legalization of commercial entrepreneurs' books shall be done by any duly authorized member of the management or the administration, or by the secretary, or also by a notary or the competent register.
2. Legalization consists in the signature of the opening and closing statements, as well as in the indication, on the last sheet of each one, of the number of sheets of the book and, on all sheets of each book, the respective number and initials.
3. The initialing of the sheets can be done using a signature stamp.
4. In the case of legalization by a notary or competent register, the signatures and initials mentioned in the previous paragraphs can be done by the officers competent to sign certificates.
5. Notaries and the competent register shall keep a book of legalizations.
6. By order of the Chief Executive, the legalization of commercial entrepreneurs' books which are kept in electronic form, in accordance with paragraphs 3 and 4 of article 46, can be replaced by the adoption of other procedures that guarantee that it is impossible to modify the information contained in them.
[As amended by Law no. 6/2000, of April 27]
FORM OF BOOKKEEPING
(Keeping of book of inventories and balance sheets)
The book of inventories and balance sheets shall open with the initial detailed balance sheet of the enterprise; the balance sheets which by law the entrepreneur is obliged to keep shall be entered in it.
(Keeping of daily book)
1. The daily book records day to day all operations related to the activity of the enterprise.
2. Joint notation of the totals of the operations for periods no longer than one month is valid, provided that their description appears in other books or auxiliary records, in accordance with the nature of the enterprise concerned.
(Books of minutes of collective person commercial entrepreneurs)
The minutes books or sheets of collective person commercial entrepreneurs serve to record the minutes of the meetings of shareholders or associates, administrators and the supervisory organ; each minute shall state, without prejudice to special provisions:
a) the date on which it took place;
b) the participants' names or a reference to a list of attendance certified by the chairing committee;
c) the votes issued;
d) the resolutions passed and everything else than can serve to know them and their justification;
e) the signature by the chairing committee, if there is one or, if there isn't, by the participants.
(Who can perform bookkeeping)
1. Commercial bookkeeping shall be performed directly by the entrepreneur or by any other person duly authorized by him.
2. If the commercial entrepreneur does not directly carry out his bookkeeping, it is presumed that he has granted the authorization mentioned in the previous paragraph to the third party who prepares it.
(External requirements of bookkeeping)
1. All bookkeeping books shall be written, whatever the procedure used, with clarity, in chronological order, without blank spaces, interpolations, amendments or erasures; any errors or omissions in accounting records shall be corrected as soon as they are detected; if any cancellation is necessary, it shall be done in a manner so that the cancelled words are legible; it is not permitted to use abbreviations or symbols whose meaning is not clear with reference to the law, to regulation or to commercial practice of general application.
2. Commercial bookkeeping can be prepared in a language other than the official languages of the Territory, if there is a serious interest in doing so; value amounts can be denominated in any currency, provided that they are also denominated in patacas.
3. The books, correspondence and other documentation mentioned in paragraph 1 of article 49 can be kept in electronic form, if this form of commercial bookkeeping, including the procedures used, complies with the principles of an ordered accounting.
4. For books and other documentation kept in electronic form to be admissible it is necessary to ensure that the information stored is accessible during the period of compulsory conservation mentioned in paragraph 1 of article 49, and that it can at all times be read or reproduced by means made available by the entrepreneur.
(Microfilming of commercial bookkeeping)
1. Commercial entrepreneurs can microfilm documents which record their commercial bookkeeping.
2. Such microfilms replace the originals for all purposes.
3. Microfilming operations shall be executed with the technical care necessary to guarantee the faithful reproduction of the documents processed.
4. The regulation of the operations mentioned in the previous paragraph shall be approved by a portaria of the Governor.
(Evidentiary value of microfilm)
Photocopies and enlargements obtained from microfilm have the same evidentiary value as the originals, either in court or not, provided that they contain the duly certified signature of the person responsible for microfilming.
(Obligation to keep books, correspondence and documents)
1. Without prejudice to special provisions, a commercial entrepreneur shall keep the books, correspondence, documentation and other items recording the exercise of his enterprise, duly ordered, for 10 years from the last entry made in the books.
2. The termination of the exercise of the enterprise by the entrepreneur does not relieve him of the duty mentioned in the previous paragraph and, if he has died, such duty shall fall upon his heirs; in the case of dissolution of a company, or of another collective person commercial entrepreneur, it is for the liquidators to fulfill the provisions of the previous paragraph.
(Destruction of documents)
1. Once the time limit mentioned in paragraph 1 of the previous article has expired, the documents can be destroyed.
2. The destruction of the documents shall be effected in such manner that it is not possible to later read or reconstitute them.
(Bookkeeping as evidence)
1. Entries made in books for commercial bookkeeping are evidence between commercial entrepreneurs of facts related to their enterprises, in the following terms:
a) entries made in books for commercial bookkeeping, even if not properly arranged, are evidence against the commercial entrepreneur to whom they belong; however, a person who intends to take advantage of these is obliged to accept those entries that are not favorable to him;
b) entries made in books for commercial bookkeeping, properly arranged, are evidence in favor of the entrepreneur to whom they belong, if the counterpart does not present opposing entries in books arranged in the same manner or evidence to the contrary;
c) if there is a discrepancy between the entries of the books of both entrepreneurs, and if the books of one of them are properly arranged but not the books of the other, the books which are properly arranged shall serve as evidence, without prejudice to evidence to the contrary.
2. If a commercial entrepreneur has no bookkeeping, despite the obligation to have it, or refuses to present it, the properly arranged books of the other entrepreneur shall be accepted as evidence against the former, except if the absence of books is due to force majeure, and always without prejudice to the possibility of evidence to the contrary in any entries presented by means of evidence admissible at law.
(Confidentiality of commercial bookkeeping)
1. Entrepreneurs' commercial bookkeeping is confidential, without prejudice to the following paragraphs and to special provisions.
2. The showing or general examination of books, correspondence and other documents of entrepreneurs can only be ordered, ex officio or upon request of a party, in cases of universal succession, suspension of payments, bankruptcy, liquidation of a company or other collective person commercial entrepreneurs, and if the shareholders have a right of direct examination.
3. Besides the cases mentioned in the previous paragraph, it is possible to order the consultation of commercial bookkeeping, upon request of a party or ex officio, if the entrepreneur to whom it belongs has an interest or responsibility in the matter that justifies this showing; the examination shall be exclusively restricted to those aspects that directly relate to the matter at issue.
(Execution of examination of bookkeeping)
1. The examination mentioned in the previous article, either general or specific, shall be done in the enterprise of the entrepreneur, in his presence or in the presence of a person nominated by him; adequate measures shall be adopted for the due conservation and safekeeping of the books and documents.
2. In any case, the person upon whose request the examination was ordered can make use of technical staff in such manner and number as the court may consider necessary.
ANNUAL ACCOUNTS OR OF ACCOUNTING PERIOD
(Elaboration of annual or accounting period accounts)
1. A commercial entrepreneur is obliged to prepare annual or accounting period accounts of his enterprise, within three months from the end of each accounting period, which shall comprise the balance sheet, the profit and loss account and the annex.
2. Annual accounts shall be written with clarity and shall be a faithful representation of the patrimony, financial situation and results of the enterprise, in accordance with legal provisions.
3. If the application of legal provisions is not enough to show a faithful representation of the patrimony, financial situation and results of the enterprise, additional information necessary to achieve that goal shall be provided.
4. In exceptional cases, if the application of a legal provision in accounting matters is incompatible with the faithful representation that the annual accounts should provide, such provision shall not apply; in such cases, this lack of application shall be referred to in the annex, with proper justification, and with an explanation of its impact on the patrimony, financial situation and results of the enterprise.
(Preparation of balance sheet, profit and loss account and annex)
1. The balance sheet comprises, with the necessary separation, the goods and rights that constitute the assets of the enterprise and the obligations that constitute its liabilities, with specification of own funds; the opening balance sheet of an accounting period shall correspond to the closing balance sheet of the previous accounting period.
2. The profit and loss account comprises, also with the necessary separation, the earnings and the costs of the accounting period and, by differentials, the results of it; it shall distinguish the ordinary results arising from the operation from those which are not, or from those which arise from circumstances of an extraordinary nature.
3. The annex completes, expands and explains the information contained in the balance sheet and profit and loss account; if a legal provision so requires, the annex shall include a heading on financing, in which the resources obtained in the accounting period and their different sources shall be specified, as well as the application or the use of these in fixed assets or current assets.
4. In each of the sections of the balance sheet and profit and loss account and in the heading on financing shall appear, besides the figures of the accounting period being closed, those corresponding to the immediately previous accounting period; if these figures are not comparable, the amounts carried from the previous accounting period shall be adapted; in any case, the impossibility to compare, and the eventual adaptation of the amounts carried, shall be referred to in the annex and duly commented.
5. The balance sheet and profit and loss account cannot have accounts to which no entries correspond, except if it was done in the previous accounting period.
6. Compensation between accounts of assets and liabilities, or between accounts of profits and losses, is forbidden.
(Structure of balance sheet and profit and loss account)
The structure of the balance sheet and profit and loss account cannot be modified from one accounting period to another; however, in exceptional cases, this article may not apply; such fact must be mentioned in the annex, with due justification.
(Signature of annual or accounting period accounts)
1. The annual or accounting period accounts shall be signed:
a) by the entrepreneur himself, in the case of an individual;
b) by all administrators, in the case of collective person commercial entrepreneurs.
2. In the case mentioned in paragraph b) of the previous paragraph, if the signature of any of the administrators is missing, such fact shall be mentioned in the documents from which it is missing, with an express statement of the respective cause.
3. The balance sheet and the profit and loss account shall be dated before the signature of the responsible persons.
(Appraisal of elements of annual accounts)
1. Appraisal of the elements which are part of the various headings of the annual accounts shall be made in accordance with generally accepted accounting principles; in particular, the following rules shall be observed:
a) it shall be presumed that the enterprise continues in operation;
b) the criteria of appraisal shall not be modified from one accounting period to another;
c) a principle of prudence in appraisal shall be followed;
d) the costs and the income affecting a certain accounting period shall be included in it, irrespective of the date of payment or collection;
e) the elements which are part of the various headings of the assets and liabilities shall be appraised separately;
f) the elements of the fixed assets and of the current assets shall be accounted, without prejudice to the following article, by the acquisition price or the cost of production.
2. The principle mentioned in subparagraph c) of the previous paragraph, which in case of conflict shall prevail over any other, obliges the indication in the balance sheet only of profits already gained by the date of its closing, as well as to take into account the foreseeable risks and the eventual losses originating in the accounting period or in a previous accounting period, distinguishing irreversible from reversible or potential ones, even if they only come to be known between the date of closing of the balance sheet and the date on which it is formulated, in which case proper information shall be provided in the annex, and also to account for any devaluations, whether the accounting period finishes with positive or negative results.
3. In exceptional cases it may be admissible that the principles mentioned in paragraph 1 shall not be applied; in such cases, the annex shall refer to this lack of application, explaining it properly, and its impact on the patrimony, financial situation and results of the enterprise.
(Amortization of fixed assets and current assets)
1. Elements of fixed assets and of current assets, whose use has a limit in time, shall be regularly amortized during the time of their use; nevertheless, and even if their use is not limited in time, if the depreciation foreseen for such goods is long term, corrections in value shall be made to the extent necessary to attribute to them the lower value that they have by the date of the closing of the balance sheet.
2. The corrections of value necessary in order to attribute to elements of the current assets the lower market value or any other lower value that correspond to them, as a result of special circumstances, at the time of closing the balance sheet, shall be made.
3. The corrections of value of fixed assets and current assets mentioned in the previous paragraphs shall appear separately in the balance sheet by means of the corresponding provisions, except if, the said corrections having an irreversible nature, they constitute definitive losses.
4. An appraisal at a lower value, in application of the previous paragraphs, cannot be maintained if the reasons that motivated the corrections of value have ceased to exist.
5. Exceptionally, tangible immobilizations, as well as raw materials and consumable goods which are renewed constantly, whose global value is of secondary importance for the enterprise, can be included in the assets as a fixed amount and value, provided that their quantity, value and composition do not vary significantly; in the latter case, the reason for such inclusion shall be indicated in the annex, as well as the amount that it involves.
6. A commercial enterprise can only appear in the assets of the balance sheet if it has been acquired against payment.
(Auditing of annual accounts)
1. Without prejudice to other laws that might make it compulsory to have the annual accounts audited by a person who has the legal capacity of accounting auditor, and to articles 52 and 53, a commercial entrepreneur is obliged, whenever ordered to do so by the court, to submit for audit the annual accounts of his enterprise, upon request of whoever demonstrates a serious interest in it.
2. In such case, the court shall demand that the petitioner post an adequate bond to pay for the court fees and for the audit expenses, which shall be payable by him if no essential defects or irregularities are found in the revised annual accounts; for this purpose, the auditor shall present to the court a copy of the information prepared.
REGISTRATION
(Purpose of registration)
The commercial register is intended to make public the legal situation of entrepreneurs and commercial enterprises, its purpose being the security of legal commerce.
(Acts subject to registration and publication)
1. Acts related to entrepreneurs and commercial enterprises are subject to registration and publication in accordance with the law.
2. Acts that must be published in accordance with this Code can be so in any of the official languages, but if there are interested parties that only express themselves in the other language they shall have a translation attached.
3. The publication mentioned in the previous paragraph shall be effected in a Macao newspaper, among those in the Territory with the largest readership, in Portuguese or Chinese language, depending upon the language used; this paragraph shall apply to the translation.
4. If the act to publish must be followed by a translation, the publication of the latter shall take place in a newspaper published in the same week.
RENDERING OF ACCOUNTS
(Obligation to render accounts)
A commercial entrepreneur is obliged to render accounts:
a) in isolated operations, at the end of each one;
b) in operations of continuous execution, at the end of each year.
REPRESENTATION IN THE EXERCISE OF AN ENTERPRISE
MANAGERS
(Engagement of managers)
1. A manager is a person who, under any designation, depending on commercial usage, is engaged by a commercial entrepreneur for the exercise of the enterprise.
2. The engagement can be limited to the exercise of a branch or a particular line of business of the enterprise.
3. If various managers are engaged, they can act separately, except if otherwise stipulated in the legal transaction of engagement for management.
(Powers of manager)
1. A manager can practice all acts related to the exercise of the enterprise for which he is engaged, with the exception of the limitations contained in the management engagement; however, the manager cannot charge or transfer immovable goods used in the exercise of the enterprise if he is not expressly authorized to do so.
2. A manager can sue and be sued in representation of the principal in everything that is related to the acts practiced in the exercise of the enterprise for which he is engaged.
(Obligations of manager)
In relation to the enterprise or the part of it for which he is engaged, the manager is obliged, jointly with the entrepreneur, to comply with the provisions relating to entry in the commercial register of the acts subject to it and to have commercial bookkeeping.
(Registration of engagement of management)
[Revoked by Law no. 6/2000, of April 27]
(Registration of acts of modification and revocation of the engagement of management)
[Revoked by Law no. 6/2000, of April 27]
(Signature)
In documents relating to acts practiced in the exercise of the enterprise for which he is engaged, a manager is obliged to use the firm of the principal and to write his signature with express mention of the capacity in which he intervenes.
(Personal liability of manager)
1. A manager is personally liable for acts that he practices representing the principal if he omits to communicate to the counterpart the capacity in which he intervenes in the act.
2. Without prejudice to the previous paragraph, third parties can take action also against the principal for acts practiced by the manager in relation to the exercise of the enterprise for which the latter is engaged.
(Prohibition of competition by manager)
1. A manager cannot, without express assent from the principal, exercise a commercial enterprise of the type for which he is engaged, either by himself or through, or for the account of, a third party.
2. The assent of the principal is presumed if the situations indicated in the previous paragraph already existed at the time of the engagement and the principal had knowledge of them.
3. Breach of the prohibition of competition mentioned in the previous paragraphs renders the manager liable to compensate the principal for the damages caused.
4. Without prejudice to the previous paragraph, the principal has a right to take for himself the transactions effected in breach of paragraph 1.
(Application to representatives of entrepreneurs from outside Macao)
The previous provisions apply to those who are engaged to exercise in Macao the representation of the enterprise of an entrepreneur from outside Macao.
(Revocation of engagement of management)
Both the principal and the manager can at any time terminate the engagement of management; however, in the absence of just cause or of adequate advance notice, the counterpart has a right to be compensated for the damage suffered.
(Non-transferability of the position of manager)
A manager cannot have himself replaced by a third party in the exercise of an enterprise, except with the express agreement of the principal.
(Death or legal incapacity of principal)
Except if there is an agreement to the contrary, the engagement of management is not extinguished by the death or supervening legal incapacity of the principal.
(Procurators)
The provisions of articles 67, 68, 71 and 73 to 75 also apply to those who, not being engaged to exercise an enterprise, have, on the basis of a stable relation, powers to conclude transactions related to the exercise of such enterprise on behalf of the principal.
ENTREPRENEUR'S ASSISTANTS
(Powers of assistants)
1. Assistants of an entrepreneur can practice all acts normally comprised in the type of operations of which they are in charge, with the exception of the limitations arising from usage.
2. However, they cannot demand the price of merchandise that they have not sold, nor grant delays of payment or discounts which are not in accordance with usage, except if they are expressly authorized to do so.
(Powers of derogation of general contractual clauses)
Assistants, even if they are authorized to conclude contracts on behalf of an entrepreneur, do not have the power to derogate general contractual clauses of the enterprise without a special written authorization to do so.
(Powers of assistants in relation to transactions concluded)
1. In the case of transactions concluded by them, assistants are authorized to receive, on behalf of the entrepreneur, declarations related to the execution of the contract and claims related to non-performance of contracts.
2. They also have competence to request provisional judicial measures in the interest of the entrepreneur.
(Other powers of assistants)
1. Assistants who are engaged to effect sales at the place of exercise of the enterprise can demand the price of merchandise sold by them, except if there is a special cashier for collection.
2. Outside of the premises of the enterprise, they cannot demand the price if they are not authorized to do so, or if they do not deliver a receipt signed by the entrepreneur.
LIABILITY FOR THE EXERCISE OF AN ENTERPRISE
(Presumption)
The commercial debts of a commercial entrepreneur are presumed to be contracted in the exercise of his enterprise.
(Liability for debts contracted in the exercise of an enterprise)
1. The assets that compose the enterprise of an individual commercial entrepreneur and, in their lack or insufficiency, his private assets, are liable for such entrepreneur's debts, contracted in the exercise of his enterprise.
2. Before the liquidation of a commercial enterprise, a private creditor can only execute the assets used in the commercial enterprise in case of lack or insufficiency of other assets of the entrepreneur.
(Liability for obligations contracted outside Macao)
1. Goods used in the representation of his enterprise in Macao by a commercial entrepreneur from abroad are only liable for the obligations contracted abroad after the payment of all obligations contracted in the exercise of the said enterprise in Macao.
2. A decision of an outside authority that decrees the bankruptcy of a commercial entrepreneur from abroad shall only apply to the goods mentioned in the previous paragraph after the fulfillment of the provision therein.
(Liability of spouses' assets for the exercise of a commercial enterprise)
If a commercial entrepreneur is married in a regime of conjunction of assets, the common assets in the first place, and subsidiarily the own assets of each of the spouses, shall be liable for any obligations resulting from the exercise of his enterprise that surpass the goods allocated to its use.
CIVIL LIABILITY OF COMMERCIAL ENTREPRENEUR
(Objective liability of producer commercial entrepreneur)
1. A producer commercial entrepreneur is liable, regardless of fault, for damage caused to third parties by the defects of products that he puts in circulation.
2. A producer is the manufacturer of a finished product, of a component part or of a raw material, and also whoever presents himself as such through the apposition of his name, trademark or other distinctive sign to the product.
3. The following are also considered as producers:
a) anyone who, in the exercise of his enterprise, imports products for sale, lease, financial lease or another form of distribution;
b) the distributor of products whose Macao producer or importer is not identified, except if, after being notified in writing, he communicates to the injured party the identity of one or the other, or of some preceding distributor, also in writing.
(Product)
1. Any movable good is considered to be a product, even if incorporated in another movable or immovable good.
2. Products from the land, from raising livestock, fishing and hunting are excluded if they have not undergone any transformation.
(Defect)
1. A product is defective if, at the moment of its entry into circulation, it does not offer the safety that legitimately is to be expected, having in account all circumstances, namely its presentation, characteristics and the use that reasonably can be made of it.
2. A product is not considered defective by the simple fact that a more advanced one has subsequently been put into circulation.
(Exclusion of liability)
A commercial entrepreneur is not liable if he proves:
a) that he did not put the product into circulation;
b) that, having account of the circumstances, it can be reasonably assumed that the defect did not exist at the moment of entry into circulation;
c) that he did not produce it for sale or any other form of distribution with an economic objective, nor produced nor distributed it in the exercise of his enterprise;
d) that the defect is due to the conformity of the product with imperative norms enacted by public authorities;
e) that the state of scientific and technical knowledge, on the moment in which he has put the product into circulation, did not allow the detection of the existence of the defect;
f) that, in the case of a component part, the defect is imputable to the conception of the product in which it was incorporated, or to the instructions given by its producer.
(Joint and several liability)
1. If various entrepreneurs are responsible for the damage, their liability is joint and several.
2. In internal relations, the circumstances shall be taken into account, in particular the risk created by each liable party, the seriousness of the fault with which they have eventually acted and their contribution to the damage.
3. In case of doubt, the distribution of responsibility shall be in equal parts.
(Contribution of injured party and of third party)
1. If negligence on the part of an injured party has contributed to the damage, the court can, taking into account all circumstances, reduce or exclude the compensation.
2. Without prejudice to paragraphs 2 and 3 of the previous article, the liability of the entrepreneur is not reduced if the intervention of a third party has contributed to the damage.
(Compensatable damage)
Damage resulting from death or personal injury can be compensated, as well as damage to goods other than the defective product, provided that these are normally destined to private use or consumption and that the injured party has mainly given them such destination.
(No derogation)
Liability towards an injured party cannot be excluded or limited; any stipulations to the contrary are considered not written.
(Limitation of actions)
The right to compensation is barred three years after the date when the injured party gained or should have gained knowledge of the damage, of the defect, and of the identity of the entrepreneur.
(Lapse)
The right to compensation lapses 10 years from the date at which the entrepreneur put into circulation the product that caused the damage, except if judicial proceedings initiated by the injured party are pending.
COMMERCIAL ENTERPRISE
GENERAL PROVISIONS
(Nature of the right over commercial enterprise)
Besides the rights that grant the possibility to dispose of each of the goods that compose it, the entrepreneur has an ownership right over the enterprise itself.
(Means to protect his rights)
Besides the specific protection granted by the law to each of the goods that compose his enterprise, an entrepreneur also enjoys, regarding the enterprise, the protection granted by the law to the ownership right in general.
(Protection of possession)
An entrepreneur can protect his possession of an enterprise by common legal means.
(Claim for return [acção de reivindicação] of commercial enterprise)
1. An entrepreneur can judicially demand from any possessor or detainer of the enterprise the recognition of his ownership right and its consequent restitution.
2. The relevant provisions of the Civil Code shall apply to the claim for return of an enterprise, with the necessary adaptations.
(Direct action)
An entrepreneur can defend his ownership right over an enterprise by means of direct action, in accordance with the Civil Code.
(Acquisition of ownership of enterprise)
The ownership right over an enterprise is acquired by any of the means
admitted by law that are compatible with its nature
AsianLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.asianlii.org/mo/legis/laws/cca1100141