What are the risks of the joint-stock business of state-owned enterprises? In fact, there is a lot of knowledge in the workplace that we need to know. What all walks of life need to know in the workplace is different. Let's learn about the risks of state-owned joint-stock business.
What are the risks of the state-owned enterprise's shareholding business 1 I. Risk points of the equity investment object:
(1) State-owned enterprises cannot become general partners;
(2) Investing in informal private equity funds may involve criminal offences.
Second, the risk points in the process of equity investment:
(1) Two legal risks in the establishment of direct investment, namely, false investment and non-monetary investment.
1, risk point of false capital contribution:
(1) Contributing shareholders may also "pay the bill" for other shareholders' false contributions;
(2) Those who lend funds to assist others in making false capital contributions shall also bear joint and several liabilities.
2. Risk point of non-monetary property investment: the value or ownership of the invested property is flawed.
(2) Risk points of equity transfer:
(1) The target company has unknown contingent liabilities. If the target company repays its debts, the value of the transferred equity will be affected.
(2) "Zero consideration" equity is risky.
(C) the legal risks of capital increase and share expansion
Risk point 1: Directors and senior executives failed to fulfill their due diligence obligations.
Risk point 2: maliciously dilute the interests of minority shareholders.
Risk point 3: the loss of state-owned rights and interests.
Third, the risk point of the withdrawal of equity investment: if the liquidation obligation is not fulfilled, the shareholders will bear civil liability.
4. Risk points of overseas investment: it is difficult to control, there are many kinds of risks, and the loss of state-owned assets is serious.
What are the risks of state-owned enterprises' shareholding business? 2 What are the legal risks of state-owned holding investment?
Legal analysis: the legal risk of holding state-owned enterprises' investment mainly lies in the fact that state-owned enterprises cannot become general partners, and irregular investment in private equity funds may involve criminal offences.
Legal basis: Article 182 of the Criminal Law of People's Republic of China (PRC), whoever manipulates the securities and futures market and affects the trading price or volume of securities and futures, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also or only be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined:
(a) alone or in collusion, pooling funds, equity or position advantages, or using information advantages to jointly or continuously buy and sell;
(2) colluding with others to trade securities and futures with each other at the time, price and method agreed in advance;
(3) buying and selling securities between accounts under its actual control, or buying and selling futures contracts on its own.
(four) for the purpose of closing a deal, frequently or in large quantities, and cancel the declaration;
(5) Using false or uncertain important information to induce investors to trade securities and futures.
(6) Making comments, predictions or investment suggestions on the disclosure of securities, securities issuers and futures trading targets, and conducting reverse securities trading or related futures trading at the same time;
(7) Manipulating the securities and futures markets by other means.
If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.
What are the risks of state-owned enterprises' shareholding business? 3 legal risks of enterprise investment
How to ensure the authenticity and legality of investment evaluation?
To establish a joint venture or joint venture with a partner, the authenticity and legality of the property contributed by each investor (joint venture and shareholders) are related to the interests of each investor and the joint venture or company registered in the future. The so-called authenticity of invested property refers to the authenticity of property value, and legitimacy refers to the legitimacy of evaluation institutions and evaluation procedures. Concealing the true value of property by deception, falsely reporting the price and making false registration, and the contributing shareholders shall bear administrative and criminal responsibilities;
Other shareholders have civil liability to pay the difference, and they are jointly and severally liable; According to the severity and harmful consequences of false registration, the company may also bear administrative (fine) and criminal responsibility. That is to say, everyone will run the enterprise together, and the false investment of one investor will hurt all investors and bring legal troubles to the newly registered company, such as the pressure to make up the investment difference, the operational difficulties due to the lack of working capital and the damage to the company's commercial reputation.
In a joint venture, the parties to the joint venture are jointly and severally liable, and the property contributed by one party is untrue, which means that the compensation ability of the joint venture is reduced, and the debt repayment ability of one party is reduced, which of course means that the debt repayment share of the other party may increase, that is, the debt risk of the other party increases.
Whether the contributed property is legally feasible.
According to the laws of our country, physical objects, cash and industrial property rights can all be used as investment property, but we should pay attention to some legal risks when investing with these properties.
Collective land shall not be transferred without authorization.
Due to urban development and radiation, the collective land in the urban-rural fringe is cheap and has the potential for appreciation. Village economic organizations attract urban enterprises to invest in projects, set up factories and engage in joint ventures with collective land such as farmers' homesteads, private plots and feed fields. When the joint venture failed and it was necessary to pay off debts, it was discovered that collective land was not allowed to be transferred without authorization. The state monopolizes the primary market of land, collective land can only enter the secondary market after being expropriated by the state according to law, and the remaining amount can only be used to pay off debts after paying the state land income.
If the remaining amount is not enough to repay the debt, at this time, the joint venture partner (village economic organization) has no other property, and the city enterprise as a joint venture shall bear joint liability, and the debt balance shall be borne by the city enterprise, which means that the city enterprise should increase its share of debt repayment.
The right to use a trademark patent cannot be used as capital contribution property.
At present, the law does not clearly stipulate whether the right to use a trademark patent can be used as capital contribution property. Although some scholars advocate that the right to use trademarks and patents can be used as investment property, it is not feasible to operate in practice from the current laws (laws and regulations related to enterprise registration) and practice in China. Therefore, at present, the right to use the trademark patent right cannot be used as capital contribution property.
Ensure that the company's capital is sufficient.
At present, China's Company Law does not stipulate that shares can be used as the object of capital contribution, but in practice, especially in the restructuring of state-owned enterprises, shares have been used as capital contribution. Where shares are used as the capital contribution target, special attention should be paid to ensuring the authenticity, rationality and effectiveness of the share contribution in operation. If we want to consider that the value of shares is quite flexible relative to cash, overestimating the value of shares will violate the principle of capital enrichment, we must carefully evaluate the value of shares and standardize the evaluation, pricing and inspection procedures of share capital contribution.
The statutory capital verification institution shall issue a capital verification report on the capital contribution of the shares, which shall record the status of the capital contribution shares, the evaluation method of the share price, and whether the evaluation result is consistent with the number and face value of the shares in the proposed company. The contribution of shares shall become a necessary clause in the articles of association. The name of the investor, the shares of the investment target and their prices, and the investment data thus determined must be recorded in the articles of association, otherwise the share investment cannot be made.
In addition, the performance of share contribution should comply with the relevant provisions of share transfer, and it must be delivered and transferred, so that the contributed shares truly belong to the company under establishment. If the price of the paid-in shares at the time of the establishment of the company is obviously inconsistent with the price stipulated in the articles of association, the shareholders shall make up the difference to ensure the capital enrichment after the establishment of the company.
Be wary of the authenticity of investment.
Joint ventures with foreign investors need to examine whether foreign investors contribute their own property. According to the current laws of our country, investors (shareholders) should use their own property without defects in rights as their capital contribution property. In practice, some foreign investors use leasing, borrowing other people's property or using property with mortgage and other security rights as their capital contribution. Before the expiration of the cooperative operation and joint venture, foreign investors will run away when they see that the market is not good and their enterprises lose money. The contributed property cannot be auctioned to pay off debts, because other people's property or property is mortgaged by others, and the real owner claims ownership, and the property should be returned to the real owner;
The mortgagee claims the right to mortgage, and the proceeds from the auction of property shall be given priority to repay the mortgagee. In this way, the rights and interests of China and the joint venture will inevitably be damaged, and the return of fixed assets to China at the expiration of the joint venture will become empty talk. Some foreign investors use borrowed loans as their capital contribution property and want to set up a joint venture or let China guarantee their loans. In fact, they still use other people's money to make their own contributions, and then leave the losses to the Chinese side and pass on the investment risks to the Chinese side.
There are also foreign investors who withdraw their investment by buying or underwriting the goods of the joint venture without paying, or by contracting the fixed investment income of the joint venture without taking investment risks, and withdraw their investment in disguise.
Debt commitment of enterprises to start new enterprises
According to the judicial interpretation of the Supreme Court 1994, when an enterprise starts a new enterprise, the funds for the new enterprise are not in place, and the starting enterprise should bear legal responsibility for the debts of the new enterprise. This is divided into two situations. First, if the new enterprise name is registered as1100,000 yuan, it is actually only 500,000 yuan. If the debt is 2 million, the new enterprise of the original enterprise has obtained the legal person license, and the investment has reached the legal minimum registration after all.
As an independent legal person, the newly-established enterprise is liable to the creditors with its own 6.5438+0 million yuan (limited liability), and the original enterprise bears the difference between the nominal registered amount (6.5438+0 million yuan) and the actual funds in place, that is, it bears the debt of the newly-established enterprise of 500,000 yuan. Second, the newly-started enterprise is registered in the name of 6,543,800 yuan, but as a limited liability company mainly engaged in production and operation or commercial wholesale, its actual paid-in capital is only 300,000 yuan, which violates the requirement of the Company Law for the statutory minimum registered amount of this kind of company (500,000 yuan).
Even if the original enterprise has obtained the legal person license for the new enterprise, the new enterprise can only be regarded as a branch company in law, not a subsidiary company. Therefore, the original enterprise, as the head office, should bear all liabilities for the newly established branch, that is, the difference (6,543,800+7,000 yuan) between the debt amount borne by the original enterprise (2 million yuan) and the paid-in capital of the newly established enterprise (300,000 yuan). It can be seen that the punishment in the latter case is heavier.
Some enterprises want to set up a newly established enterprise as a subsidiary and get profits and dividends. Losses allow subsidiaries to bear limited responsibilities with their limited assets (static, that is, limited registered capital), which can avoid investment risks to a certain extent.
. If, as in the second case, the actual paid-in capital does not reach the statutory minimum registered amount, this idea cannot be realized. Legally, this kind of new venture is not regarded as a subsidiary with independent legal personality at all, but only as a branch, so the original enterprise bears more risks and shares more debt responsibilities for the new venture.
False capital injection leads to real debt
Wang, the manager of Dongfang Building Materials Company, took a fancy to the sales channels and methods of the building materials market, and Liu, the manager of the building materials market, took a fancy to the state-owned enterprise signboard of Dongfang Company. Both parties reached a cooperation intention and agreed that Dongfang Company would invest120,000 yuan in Daxing building materials market. The registered capital of Daxing building materials market increased from 8 million yuan to 20 million yuan, becoming the controlling shareholder accounting for 60% of its shares. At the same time, Daxing changed its name to Oriental Company. However, Dongfang Company could not come up with120,000 yuan at once.
The two parties reached an agreement: firstly, Dongfang Company injected 2 million yuan into Daxing Building Materials Market through the bank, and then changed the bank documents to 6,543,802 yuan, got the capital verification report and went through the change registration. After the replacement, Daxing Building Materials Market returned 2007 yuan to Dongfang Company in a few months. Company A ordered building materials from Daxing Building Materials Market, and both parties agreed to pay the payment one month later. Company A pays Daxing Market100000 yuan in one lump sum.
Manager Daxing put this 6.5438+million yuan into the securities market, trying to use the time difference to "borrow chickens and lay eggs", and the result was a loss, leaving only 6.5438+million yuan. When the contract expires, Daxing can't supply it. Company A proposes to cancel the contract and return the payment. Big star can neither supply nor repay. Company A sued the court. The court conducted preservation proceedings and sealed up the property in Daxing Building Materials Market, only to find that the property in Daxing Building Materials Market was only worth 5 million yuan, which could not compensate Company A100000 yuan.
Through investigation, Company A learned the fact that Oriental Company contributed capital, and added Oriental Company as the second defendant by means of false capital contribution and withdrawing capital contribution, demanding that Oriental Company bear joint and several liabilities. The false capital injection of Oriental Company brought real debt.
The court found that Dongfang Company, knowing that its capital contribution was insufficient, still falsified bank documents, falsely registered and withdrew funds, resulting in the false registered capital of Daxing Building Materials Market. Dongfang company should bear civil liability within the scope of false registered capital in Daxing building materials market, and both Dongfang company and Daxing building materials market have repaid the payment of company A. ..
Merger and acquisition of others should clarify the debt black hole.
The success rate of corporate mergers and acquisitions is not high. One of the reasons for the failure is the information asymmetry between the merger and the acquired party, and the acquired party cannot find out the real debt and property status of the acquired party. After the merger, a large number of debts were generated for no reason, and it was difficult to inject funds into new projects, which led to the failure of the merger. It cannot be simply verified from the situation reflected in the balance sheet or accounts. Many statements and accounts are false. Many potential debts cannot be truly and completely reflected in statements and accounts.
Such as enterprise IOUs, signed bills of lading, credit payment, quality claims, etc. There are also property lists that are inconsistent with physical property. Therefore, it is necessary to check and verify the property and verify whether the certificate is true, legal and complete. Review the creditor's rights and debts contained in various foreign contracts of the acquired party, such as sales, guarantee, agency, lease, contract, supply, trademark patent and labor contract. The merger contract shall clearly stipulate that only the debts listed in the debt list shall be borne, and the acquirer (the acquired party) shall not bear the debts of the merged party (the target company) from the delivery date, the acquisition date or the agreed receiving date.
In practice, in order to avoid the debt black hole that the target company cannot calculate and verify, some merged companies first engage in joint venture, joint venture, contracting, trust and leasing with the target company, and then talk about the overall property right transfer of the target company after a period of running-in, that is, the effective continuation of contracting and leasing and the moderate transition of merger.