The independence of listed companies has always been the focus of supervision. However, the lack of independence of listed companies is accompanied by a series of problems that infringe on the interests of issuers and investors, such as frequent related transactions, distorted performance, capital occupation and hollowing out of listed companies. In order to promote the sustained and healthy development of the capital market, the regulatory authorities put forward five independent requirements for listed companies: personnel, assets, finance, institutions and business.
The consequence of illegally occupying the funds of listed companies is the crime of suspected job embezzlement. Those who constitute this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and fined; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and fined.
Listed companies should pay attention to the following matters when dealing with related parties:
(1) It is forbidden for controlling shareholders and other related parties to occupy the funds of listed companies in their business capital transactions with listed companies.
The controlling shareholder and other related parties shall not require the listed company to pay wages, welfare, insurance, advertising and other expenses for them, nor shall they bear the costs and other expenses for each other.
(2) A listed company shall not directly or indirectly provide funds to the controlling shareholders and other related parties for use in the following ways:
(1) Lending company funds to controlling shareholders and related parties for use with or without compensation;
② Providing entrusted loans to related parties through banks or non-bank financial institutions;
(3) Entrust the controlling shareholder and other related parties to carry out investment activities;
(4) Issuing commercial acceptance bills for controlling shareholders and other related parties without real trading background;
(5) Repaying debts on behalf of the controlling shareholders and other related parties;
⑥ Other methods approved by China Securities Regulatory Commission.
It can be seen that the non-operating capital transactions between listed companies and their related parties must adhere to the principle of "top-down" one-way flow: that is, the actual controller of listed companies and their related parties are allowed to provide funds to listed companies at low interest rates or free of charge, but the listed companies are absolutely not allowed to directly or indirectly provide funds to the actual controller and its related parties in any form.
(3) A listed company shall follow the following rules when providing financial assistance such as funds to its holding subsidiaries.
(1) When a listed company provides financial assistance such as funds to its holding subsidiary, other shareholders of the holding subsidiary shall, in principle, provide financial assistance in proportion to their capital contribution under the same conditions.
Where other shareholders are the controlling shareholders, actual controllers and their related parties of the listed company, other shareholders shall provide financial assistance in proportion to their capital contribution, with the same conditions.
(2) A listed company shall not provide financial assistance such as funds to the controlling shareholders, actual controllers or holding subsidiaries of its related parties.
(4) A listed company may not purchase articles or assets occupied by the controlling shareholder or actual controller.
I hope the above content can help you. If in doubt, please consult a professional lawyer.
Legal basis:
Article 21 of the Company Law of People's Republic of China (PRC)
The controlling shareholder, actual controller, directors, supervisors and senior managers of the company shall not use their relationship to harm the interests of the company.
Anyone who violates the provisions of the preceding paragraph and causes losses to the company shall be liable for compensation.
Article 20
Shareholders of the company shall abide by laws, administrative regulations and the articles of association, exercise their rights according to law, and shall not abuse their rights to harm the interests of the company or other shareholders; The company's independent legal person status and the limited liability of shareholders shall not be abused to harm the interests of the company's creditors.
Shareholders of a company who abuse their rights and cause losses to the company or other shareholders shall be liable for compensation according to law.
Shareholders of a company who abuse the independent status of a company as a legal person and the limited liability of shareholders to evade debts and seriously damage the interests of creditors of the company shall be jointly and severally liable for the debts of the company.