Legal risks in the process of company establishment and its prevention: company establishment refers to a series of actions carried out by promoters in order to set up a company. The symbol of the company's establishment is the business license issued by the industrial and commercial department. Business license is issued, the company is established, and the company is established. In practice, most promoters only pay attention to the results of the establishment of the company, ignoring the legal risks in the process of establishment, which leads to a large number of disputes after the establishment (or non-establishment) of the company. Therefore, in order to reduce the occurrence of the above disputes, we give the following tips on the possible risks in the process of company establishment for your reference: 1. Legal risks in the choice of business organization forms In modern business society, business organization forms can be roughly divided into: companies, partnerships, sole proprietorships and so on. Due to the different laws on which various organizational forms of enterprises are based, investors should choose different forms according to the business characteristics, purposes and different legal requirements of enterprises, but the following aspects should be considered emphatically when choosing organizational forms: 1. The responsibility of investors. According to the provisions of Article 3 of the Company Law, "A company is an enterprise legal person, which has independent legal person property and enjoys legal person property rights. The company is liable for its debts with all its property. Shareholders of a limited liability company shall be liable to the company to the extent of their subscribed capital contribution; Shareholders of a joint stock limited company are liable to the company to the extent of the shares subscribed by them. Shareholders of a limited liability company and a joint stock limited company are only liable. When the company is insolvent, it is not necessary to use their personal property to make compensation except that the registered capital of the company is not in place or shareholders are required to bear the responsibilities according to the company law. According to the relevant provisions of the Partnership Enterprise Law, except limited partners, general partners in general partnerships, special general partnerships and limited partnerships all bear unlimited joint and several liabilities; According to Article 2 of the Law on Wholly Owned Enterprises, "a sole proprietorship enterprise as mentioned in this Law refers to a business unit established in China according to this Law, which is invested by a natural person, and the property belongs to the investor, who shall bear unlimited liability for the debts of the enterprise with his personal property." A sole proprietorship enterprise shall bear unlimited joint and several liability. Therefore, investors should first choose organizational forms according to different responsibilities. 2. Establishment conditions, procedures and expenses. The conditions for the establishment of partnership enterprises and sole proprietorship enterprises are relatively relaxed, the procedures for establishment are relatively simple and the cost is relatively low. Non-cash investment can be priced without evaluation by an evaluation agency; However, the threshold for setting up a company is high, especially the establishment of a joint stock limited company requires strict conditions, complicated procedures and high establishment costs. 3. Corporate tax. Partnership enterprises and sole proprietorship enterprises do not have to pay enterprise income tax, and only business owners and partners pay individual income tax from the income distribution of enterprises; In addition to paying personal income tax, the company has to pay corporate income tax before. 4. Different deadlines. Partnerships and sole proprietorships are affected by the life and death of investors, while companies can exist forever without their influence. 5. Investors have different control rights. The company's property belongs to the company, and investors cannot directly possess and control it. Especially for listed companies in joint stock limited companies, the personnel, assets and finance of listed companies and controlling shareholders must be strictly separated, and shareholders should be strictly controlled to occupy the funds and property of listed companies. Two. Legal risks in the form of company's capital contribution According to Chinese laws, shareholders can make capital contribution in cash or in kind, intellectual property rights, land use rights and other non-monetary property rights. For the scope of non-monetary property rights, as long as it can be denominated in currency and transferred according to law, it meets the requirements of China's laws on the form of capital contribution. However, our laws still restrict some special forms of non-monetary property rights. For example, according to China's laws, investors are not allowed to contribute capital at a fixed price, such as labor service, credit, natural person's name, goodwill, franchise or secured property, etc. If the investment form is not properly selected, according to the laws of China, the application for establishing a company will not be accepted and approved. Therefore, before making capital contribution, shareholders should fully understand the provisions of China laws on the establishment of a company, or make a strict examination of the capital contribution assets with the help of professional institutions. Three. The legal venture capital proportion structure set by the company's investment assets proportion structure refers to the proportion of various investments in the total investment of sponsors. In order to ensure the rationality of the company's asset structure and the needs of the company's normal business activities, the promoters should pay attention to ensuring the liquidity and liquidity of the company's assets when determining the composition of the capital contribution ratio structure. As for the proportion structure of capital contribution, Chinese laws have also made mandatory provisions, that is, if the investor makes capital contribution in currency, the amount of capital contribution in currency shall not be less than 30% of the registered capital of the company. When the capital contribution assets involve intellectual property rights and other forms of capital contribution, the determination of capital contribution proportion structure should, on the one hand, control the specific proportion of various asset forms to ensure the tangible assets needed for the normal operation of the company; On the other hand, we should also attach great importance to the instability of intangible assets value and the uncertainty of realization. The high proportion of intangible assets is likely to weaken the company's solvency and endanger the security of the company's transactions. Therefore, in the process of signing the company establishment agreement and handling the company establishment registration, the investor should carefully check the determination of the proportion structure of capital contribution, so as to avoid causing many legal problems and delaying the company establishment. Fourth, the legal risks of the company's capital contribution performance ignore the influence of the defects of capital contribution performance, which is easy to cause many legal risks and affect the normal operation of the company. 1. Legal risks caused by false capital contribution. False capital contribution refers to the fact that the promoters and shareholders of a company violate the provisions of the Company Law, fail to deliver money, physical objects or untransferred property rights, and obtain the capital verification certificate of a capital verification institution by false means, thus causing the situation that they make capital contribution in accordance with the amount agreed in the articles of association on the surface, but actually do not. False investment by investors is likely to hinder the realization of the company's capital system design; Investors should also bear a series of legal responsibilities for their false behavior, that is, they should bear the liability for compensation for breach of contract to other investors; Be responsible for repaying the capital contribution and paying compensation to the company; Assume unlimited liability for repayment or limited supplementary liability for repayment to the company's creditors; If the circumstances are serious, criminal responsibility may also be investigated. According to China's laws, false capital contribution can be sentenced to a maximum of five years' imprisonment, and a fine of 10% of the amount of false capital contribution or withdrawal of capital contribution can also be imposed. 2. Legal Risks Caused by Withdrawing Capital Contribution Withdrawing capital contribution means that after the establishment of the company, the investor secretly withdraws the paid capital contribution, but still retains its shareholder status and original share of capital contribution. Investors who withdraw their investment may not only bear the corresponding compensation and breach of contract, but also be involved in criminal offences. According to the laws of our country, if the circumstances are serious, the maximum penalty is five years' imprisonment, and at the same time, a fine of 10% of the amount of false capital contribution or withdrawal of capital contribution may be imposed. 3. The legal risk of improper performance of capital contribution refers to the fact that the time, method or procedure of capital contribution do not conform to the stipulations of the establishment agreement or the provisions of the law during the performance of capital contribution. (1) Legal risks caused by failure to deliver the investment within the prescribed time limit or failure to go through the formalities for the transfer of property rights such as physical objects. When performing the capital contribution, the investor shall timely deliver the currency or go through the formalities for the transfer of non-monetary property rights in accordance with the provisions of the establishment agreement or the laws of China. On the one hand, investors may delay the establishment of the company and miss development opportunities; On the other hand, investors have to bear a series of responsibilities, such as breach of contract, contribution to fill the responsibility, joint liability and so on; If losses are caused to others, they shall be liable for compensation. (2) Non-monetary investment property has legal risks caused by rights defects. The defect of non-monetary property rights mainly refers to the fact that the investor contributes capital in kind, intellectual property rights, land use rights and other non-monetary property rights, but does not have the legal right to dispose of these non-monetary property rights. The non-monetary property rights delivered by the investor have rights defects, which may hinder the transfer procedures of property rights, delay the performance of capital contribution and affect the establishment of the company. At the same time, illegal use of other people's property rights may also involve the company in a series of compensation disputes because of prior infringement. If the investor himself maliciously conceals the ownership of asset rights from other investors, which constitutes a crime, he shall also bear criminal legal responsibility. V. Legal Risks of the Company's Assets Appraisal If the capital contribution is made with non-monetary property rights, the assets of the contributed property shall be appraised in accordance with the laws of China. In the process of asset appraisal, there are usually the following legal risks. 1. Legal Risks of Choosing Intermediaries for Non-monetary Property Assets Appraisal According to the law, a professional intermediary agency must be hired, and the agency will issue an asset appraisal conclusion on the appraised assets. This conclusion has legal effect. Therefore, in the process of choosing an intermediary, legal risks are likely to be hidden. For example, an appraisal agency with no professional qualification was selected for the appraisal, which led to the appraisal results not being recognized by the relevant competent authorities, which delayed the establishment of the company or eventually led to the failure of the establishment of the company. Therefore, investors should fully investigate and compare when choosing an intermediary institution, such as whether the institution has business qualifications; Practical ability, experience and quality; Service charge standard, and so on. 2. False evaluation of legal risk investment assets refers to the fact that the actual price of physical objects, industrial property rights, non-patented technologies and land use rights contributed by shareholders is obviously lower than the evaluation price at the time of capital contribution. The evaluation value of non-monetary property rights is related to the registered capital of the company, as well as the proportion of equity or control. Therefore, when evaluating assets, we must choose scientific and reasonable evaluation methods and professional evaluation institutions based on objective, true and comprehensive evaluation data. However, in practice, due to many factors, the assets appraisal is not true, which leads to legal risks and affects the establishment of the company. According to the law of our country, if the assets appraisal is untrue, the investor should not only make up the capital contribution, but also bear the liability for breach of contract or compensation to other investors according to the establishment agreement. The legal risk of the equity setting of an intransitive verb company The equity setting shall be determined by the investor according to the proportion of its capital contribution. Usually, at the beginning of the company's establishment, there will be a process in which all parties negotiate their share of capital contribution. However, there are usually many legal risks in the process of equity establishment. 1. Legal risks caused by excessive concentration of equity setting In practice, many companies have a major investor. In order to avoid the higher restrictions on one-man company in our country's laws, other minority shareholders are usually found to set up a company together. In this case, the majority shareholder owns an absolute majority of the company's shares, and the excessive concentration of the company's equity is inevitable. The company is dominant, the board of directors, the board of supervisors and the shareholders' meeting exist in name only, and the problem of "insider control" is serious. This management model can help the company to make quick decisions and achieve commercial success through appropriate risks in the early stage of the company's business; Once the company enters the large-scale and diversified operation, due to the lack of checks and balances, the possibility of decision-making mistakes will increase, and the risks undertaken by the company will undoubtedly increase. In addition, a monopoly leads to any business decision of the enterprise must be made by the major shareholder, and other minor shareholders gradually lose their enthusiasm for participating in the company's operation and management. Once the major shareholder is accidentally killed or criminally detained, it will directly lead to the failure of the enterprise to make normal business decisions. By the time everything is clear, the enterprise has been pushed to the brink of bankruptcy. Excessive concentration of equity is not only detrimental to the protection of minority shareholders' interests, to the long-term development of the company, but also to the major shareholders themselves. On the one hand, due to absolute holding, corporate behavior is easily confused with the personal behavior of major shareholders, and in some cases, shareholders will bear more adverse consequences caused by corporate behavior; On the other hand, when the major shareholder is temporarily unable to handle the company's affairs due to special circumstances, it will lead to an unfavorable situation in which the minor shareholders compete for control rights, and the damage caused to the enterprise is incalculable. 2. Legal Risks Caused by Balanced Ownership Structure The so-called balanced ownership structure refers to the fact that the shareholding ratio between major shareholders of the company is quite close, and there is no other minority shareholders or other minority shareholders with extremely low shareholding ratio. In the process of establishing a company, if one party is not absolutely strong, then the parties who can often fight will set a balanced equity ratio for the control of the company in the future. If there are more than two investors who can compete, the equity structure will be more scientific. But if only two investors can compete, a balanced ownership structure will be formed. It leads to the imbalance between the company's control right and the right to claim benefits. The shareholding ratio of shareholders does not mean that every shareholder can have an impact on the company's operation, especially some decentralized decision-making power is always in the hands of one shareholder. Decentralization of decision-making power will inevitably bring some private interests. The income that shareholders can get from the company is determined according to the shares they hold. The higher the shares, the greater the claim for income and the corresponding control rights. When the control of the company is given to shareholders with a small proportion of shares, they have little right to claim income, and they will inevitably try their best to use their control to expand their extra interests. The legal risk of this abuse of control right is huge, which has serious damage to the interests of the company and other shareholders. At the same time, it is easy to form a shareholder deadlock. 3. The basic feature of modern companies is that the shares are too scattered. In this case, it is particularly important for relevant shareholders to control the company. In some companies, the average amount of equity held by most shareholders is low, forming a deformed pattern of "everyone has a share, and the equity is relatively average". In the shareholding structure composed of many ordinary minority shareholders, due to the lack of shareholders with relative control rights, minority shareholders have limited right to claim the interests of the company and their enthusiasm for participating in management is not high. The actual operation and management of the company is completed by professional managers or management. The management of the company lacks the effective supervision of shareholders, and the crisis of the management is more serious. In another case, a large number of minority shareholders restrict each other at the shareholders' meeting, and if they want to pass the resolution, they must quarrel with each other through complicated voting. The company spends a lot of energy and energy on the game activities between shareholders. 4. Legal risks caused by anonymous investment: anonymous investment refers to the fact that one party (anonymous investor) actually subscribes to the investment, but the investor recorded in the company's articles of association, shareholders' register or other industrial and commercial registration materials is someone else (anonymous investor). In practice, the existence of anonymous capital contribution or anonymous shareholders is common, and the legal relationship between them is complex, involving the exercise of shareholders' rights and the commitment of shareholders' responsibilities. In terms of equity setting, if the problem of anonymous capital contribution can be properly handled, the legal risk in the process of capital contribution will be effectively reduced and the purpose of company establishment will be realized.
Legal objectivity:
Article 94 of the Company Law The promoters of a joint stock limited company shall bear the following responsibilities: (1) When the company cannot be established, they shall be jointly and severally liable for the debts and expenses arising from the establishment; (2) When the company cannot be established, it shall be jointly and severally liable for the return of the share capital paid by the subscribers, plus the interest on the bank deposits for the same period; (3) If the interests of the company are damaged due to the fault of the promoters during the establishment of the company, it shall be liable for compensation.