In recent days, the anti-corruption drama "in the name of people" has triggered a "national pursuit of drama". There is a main line in the broadcasted drama series closely surrounding the demolition of Dafeng Factory: the loan of 5 million bridge loan failed to repay the loan as scheduled, and all the shares of Dafeng Factory, whose land value only rose to 1 billion, were transferred to Shanshui Group ...

In "in the name of people", Dafeng Garment Factory is a private enterprise restructured from a state-owned enterprise, and businessman Cai Chenggong. Dafeng factory borrows money from the bank for operation every year, and repays old loans with new loans. As it would take several days to wait for the new loan from Jingzhou City Bank, Cai Chenggong borrowed 5 million yuan from Shanshui Group as a bridge fund for a period of six days, and pledged all the shares of Dafeng Factory. Unexpectedly, Jingzhou City Bank suddenly stopped lending, and Dafeng Factory was blocked from borrowing from rural credit cooperatives. Shanshui Group sued Dafeng Factory to repay the loan and realize the pledge of equity. In the end, the court ruled that Dafeng Factory lost the case, and Shanshui Group became the actual controller and shareholder of Dafeng Factory. Shanshui Group and Cai Chenggong also signed a Supplementary Agreement, and Shanshui Group was not responsible for solving the resettlement problem of 1,3 employees of Dafeng Factory.

In addition, the Guangming Peak area where Dafeng Factory is located has become a key development area in Jingzhou, and the land value of Dafeng Factory has soared to 1 billion. As a result, in the forced demolition of Dafeng factory, a fire burned many people and triggered a group incident.

Interpretation 1

The essence of the bridge-crossing fund is "robbing Peter to pay Paul"

Related story: Cai Chenggong borrowed 5 million yuan from Shanshui Group as the bridge-crossing fund.

Feng Xingni, director of the Legal Service Department of Enterprise Bankruptcy and Restructuring in a law firm in Shaanxi, said that there are two situations in the so-called bridge loan: one is that the loan enterprise or individual is extremely short of funds in the short term. Although a loan has been negotiated with the bank, there is still time to lend money, so he goes to private capital to borrow some money first, and then pays it back when the bank loan comes down. Second, some enterprises or individuals in the bank's last loan is due, in order to continue to obtain loans, they can only borrow money from private capital to pay off the last loan, and then pay back the money when a new loan is in place. In either case, the essence of "robbing Peter to pay Paul" cannot be changed, so the saying of "crossing the bridge" is very vivid.

Most of these short-term loans have high interest rates and high risks. Once the bank's subsequent lending funds fail to keep up or draw loans, the enterprise's capital chain will break.

Interpretation II

Equity pledge is not effective without the consent of the shareholders' meeting

Related story: When Cai Chenggong borrowed money from Shanshui Group, he took all the shares of Dafeng Factory as pledge without the consent of the workers who owned 49% of the shares.

Zhu Lin, a lawyer of a law firm in Shaanxi, said that equity pledge refers to the pledge set on the shares or stocks of a company, which is one of the important forms of right pledge. The Guarantee Law stipulates that shares that can be transferred according to law (especially the shares of a limited liability company) and shares (especially the shares of a joint stock limited company) can be used as the subject matter of pledge.

There are different legal procedures for different types of equity pledge. After the parties sign the equity pledge contract, the pledge contract does not take effect, but it can only take effect after going through the corresponding procedures. "In the fund shares, equity investment, the parties shall conclude a written contract. If the fund share or the equity registered by the securities registration and settlement institution is pledged, the pledge right shall be established when the securities registration and settlement institution handles the pledge registration; If other equity is pledged, the pledge shall be established when the administrative department for industry and commerce handles the pledge registration. " Zhu Lin said that the effectiveness of the equity pledge not only needs the consent of the shareholders' meeting, but also needs to be registered for industrial and commercial changes, otherwise it will not take effect.

Interpretation III

It is forbidden to enter into a liquidity clause and the unpaid equity cannot be directly transferred

Related story: The equity of Dafeng Factory was awarded to Shanshui Group due to the failure to repay.

In this regard, lawyer Zhu Lin thinks it is also impossible. "There are three ways to realize the pledge, namely, discount, sale and auction." Due to the particularity of the equity pledge, the way to realize the equity pledge has its own characteristics, but it is absolutely forbidden to conclude a liquid clause in the pledge contract, even if a liquid clause is concluded in the contract, it is considered invalid.

"The so-called liquid clause means that the parties agree in the pledge contract that the ownership of the pledged property belongs to the pledgee when the creditor's rights have expired and are not paid off." Zhu Lin said that the Guarantee Law clearly stipulates that when concluding a mortgage contract, the mortgagee and the mortgagor shall not stipulate in the contract that the ownership of the mortgaged property shall be transferred to the creditor when the mortgagee is not paid off at the expiration of the debt performance period.

in the loan contract, even if Dafeng factory can't pay the money, it can't directly transfer the equity to Shanshui Group. At the same time, the law stipulates that after the pledge is discounted or auctioned or sold, if the price exceeds the guarantee scope agreed in the pledge contract, the excess part shall be owned by the pledger; If there is any shortage, the pledgor will no longer bear the guarantee responsibility, and the shortage will be borne by the debtor as ordinary debt. In other words, if the court auctions the equity of Dafeng Factory, considering that the plot of Dafeng Factory has greatly appreciated, the proceeds should far exceed the money lent by Shanshui Group to Dafeng Factory, so the balance after the auction repayment should still be owned by Dafeng Factory.

Interpretation IV

If the interest rate in bridge loan far exceeds the upper limit, the interest can only be claimed at 24%

Related story: The annual interest rate of Dafeng Factory borrowing from Shanshui Group is as high as 146%!

Lei Xiping, director of a law firm in Shaanxi, thinks that this obviously exceeds the provisions in the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases: the interest rate agreed by both borrowers and borrowers does not exceed the annual interest rate of 24%, and the people's court supports that the loan interest rate exceeds the annual interest rate of 36%, and the excess is invalid. For the part between 24% and 36%, if the borrower voluntarily performs it, it cannot be required to return it. If the borrower does not take the initiative to perform, the lender can only claim 24%. "Therefore, if Shanshui Group sues Dafeng Factory, it can only claim rights at 24% interest."