1. Moral hazard of contracting shareholders.
During the contracting period, the contracting shareholders hold part of the decision-making power, personnel power and supervision and management power of the contracting company. When this power loses the necessary supervision and fully serves the personal interests of the contracting shareholders, it will inevitably lead to the abuse of power.
It is true that the management right of a company is generally transferred to another shareholder, and the contract fee is charged. However, in order to prevent the company from violating or breaching the contract, the contracting shareholders need to provide certain guarantees. But how much can you guarantee? There are a lot of uncertain risks in the company's operation, but the contracting shareholders hold the actual control right of the overloaded company's board of directors in the process of contracting operation, which opens the door for them to pass on these risks. Therefore, the guarantee provided by the contracting shareholders does not necessarily play a guarantee role. In addition, when the company is seriously insolvent in the actual operation process, the contracting shareholders refuse to undertake the obligations stipulated in the contract on the grounds of limited liability. Then, in what way can the company or other shareholders require the contracting company to bear the liability for breach of contract or compensation?
2. Risk of special shareholders claiming shareholders' rights.
During the internal contracting period of the company, other shareholders of the company request to consult the company's accounting books according to the provisions of Article 34 of the Company Law. What if the contracting company does not cooperate? If shareholders bring a lawsuit to the people's court and ask for access to the company's account books, how can the contracting company realize the shareholders' right to access the account books when the contracting shareholders refuse to provide them? Because it is the company, not the contracting shareholders, that bears the obligation to check the shareholders' account books, shareholders should not bear any responsibility for this.
What should the contracting company do if the shareholders who oppose or abstain from voting on internal contracting at the shareholders' meeting ask the company to distribute dividends according to Article 35 of the Company Law or the Articles of Association?
3. Work and risks of the board of supervisors.
After paying the contract fee, the contracting shareholders will enjoy certain independent management rights. As the supervisory body of the contracting company, the supervisor (association) should still abide by the agreement between the contracting company and the contracting shareholders. The legal authority of the supervisor (association) will be replaced by the contract, so the supervisor (association) will not actually play any restrictive role. When supervisors (associations) exercise their statutory functions and powers, they will inevitably interfere with the business activities of contracting shareholders. If economic losses are caused to the contracting shareholders, then the contracting shareholders will inevitably require the contracting company to bear the liability for breach of contract. However, after the contracting company assumes the liability for compensation, how can it recover from the supervisor (meeting)?
4. Risk of power struggle of the board of directors.
As the decision-making body of the company, the board of directors enjoys the decision-making power, personnel power and supervision power stipulated in Article 47 and Paragraph 4 of Article 109 of the Company Law. However, after the company is contracted to shareholders, the contracting shareholders and the board of directors enjoy almost most of the power. Although part of the company's management activities are entrusted to the contracting shareholders, the contracting company, as an independent legal person, still has to operate and develop itself, so the board of directors must bear its due responsibilities. In such a place where powers overlap, the board of directors enjoys more advantages than contractual shareholders: first, its authority is statutory and it can move freely within the scope prescribed by law; Second, it is elected by the shareholders' meeting and has strong "backstage" support; Third, the consequences of performing duties shall be borne by the company, without worries; Fourth, it is not the subject of the contract and is not bound by the contract. Therefore, in the process of internal contracting, if the authority of the board of directors is not effectively restricted, the internal contracting contract is like a blank sheet of paper, which will be broken as soon as it is poked.
5. Liability risk of behavior disorder.
During the company's contracting period, the independent behavior of the legal person of the contracting company and the business behavior of the contracting shareholders are made internally and externally in the name of the contracting company, otherwise some behaviors are invalid. Self-responsibility is an ancient legal principle of public reason. However, in the process of contracting within the company, the independent behavior of the contracting company legal person is intertwined with the business behavior of the contracting shareholders, and either party may push the adverse consequences to the other party. Therefore, both contractors and developers may take risks for unclear "corporate behavior".
(B) Risks from outside the company
Limited liability company is a joint venture company with certain humanity. Risks from within the company can be kept to a minimum through internal negotiation and mutual compromise. Both the contractor and the contractor have to face risks from outside the company, some of which can't be predicted and controlled by either party.
1. Risk from voluntary creditors.
As a participant in the company, private creditors have a clear understanding of the company's business model, and generally abide by the "rules of the game" and decide to participate in or withdraw from the "game" at any time. When voluntary creditors' own interests are affected to some extent, they are likely to break this "rules of the game", take advantage of the fact that internal contracting does not affect the independence of the company's personality, and choose the most favorable way to ensure the realization of their creditor's rights, so that both contracting companies and contracting shareholders will bear "joint and several liabilities" for their respective debts. What's more, on the grounds of "personality disorder" between the contracting shareholders and the contracting company, the contracting shareholders are required to bear real joint and several liability for their debts, which pushes the internal contracting of the company to the forefront.
2. Risks from involuntary creditors.
Involuntary creditors of a company generally don't care what kind of business model the company adopts. Once their rights are violated, they point the finger at the company. However, in the company's business activities, some harmful consequences occur gradually, not immediately. For example, environmental pollution infringement of chemical enterprises; Geological disasters in mining enterprises. Liability may occur during or after the contracted operation, especially after paying huge compensation. How do developers and contractors share?
3. Risks from infringers.
It is usually difficult to make an accurate assessment of the damage caused by infringement of intellectual property rights and trade secrets of companies. Therefore, how to deal with this risk? It is also a problem that both developers and contractors should pay attention to when contracting the company.