(A) reasons for market order
1, the behavior of market players is not standardized. First of all, the property right relationship of state-owned enterprises is unclear, and enterprises are not responsible for state-owned assets, which leads to a large loss of state-owned assets and an increase in debt burden. Secondly, the implementation of the company system and the reform of the shareholding system are not on the right track. On the one hand, due to the lax examination of the conditions for the establishment of the company by the competent authorities, especially the lax supervision of the registered capital in place, many economic organizations that do not meet the conditions for the establishment of the company are registered as companies, and it is not uncommon to default on debts; On the other hand, in the process of joint-stock system reform, some enterprises raise a large number of shares or issue bonds without considering their own economic ability, and finally become heavily in debt because they underestimate their business prospects.
2. Local and industrial protectionism is serious. Creditor's rights and debts between enterprises in different regions and industries are related to the interests of the region and industry. The relevant regions and industries have adopted a large number of local protectionist measures, implemented special protection at home, set up various checkpoints outside, and discriminated against and excluded, resulting in creditors in other regions and industries being unable to exercise their creditor's rights. At present, protectionism is more prominent in administrative law enforcement, finance and judicial departments. Take the judicial department as an example. Some judicial organs and judges who sued foreign companies for performing their debts tried their best to obstruct the filing of the case, blindly shielding and protecting local parties during the trial, deliberately delaying, shirking or even refusing to implement it.
3. Serious unfair competition. In order to seek their own interests, some enterprises do not hesitate to use commercial bribery, publishing false advertisements and other improper means to promote fake and shoddy products, defraud to sign contracts, or take the opportunity to occupy the market and crush competitors. This makes the products of the injured enterprises overstock and fall into crisis, and they have to rely on debts and delay debts to make ends meet.
(B) the enterprise's own reasons
The main reasons of creditor enterprises are: 1, contracting fault. First of all, before signing the contract, the other party's subject qualification, business scope, credit status and performance ability were not carefully examined, and as a result, the payment was cheated, or the payment was delayed; Secondly, the terms of the contract are incomplete, the format is not standardized, or the variety, specification, quantity and quality of the subject matter are not clear, or the time limit, place and method of performance are not clear, or the approval, registration and notarization procedures prescribed by law are not handled, which leads to the invalidity of the contract or unclear responsibilities; Third, you can't effectively protect yourself by using the guarantee method stipulated by law, so that your creditor's rights can't be guaranteed. 2. Poor performance of the contract. First of all, it does not exercise its creditor's rights in time and does not demand payment within the statutory or agreed time limit for performance. As a result, due to the increasing number of creditors of the debtor's enterprise, the amount of debt is increasing and it is unable to repay, so it has to be allowed to default; Secondly, we don't pay attention to our own breach of contract. For example, when the other party claims compensation for providing unqualified products or services, we do not actively bear the corresponding legal responsibilities, and do not take remedial measures or make compensation in time, resulting in the other party using debt default as an excuse; Third, we can't pay close attention to the separation, merger, cancellation and bankruptcy of the debtor's enterprise, and we don't know anything about its financial changes, so we can't intervene in repayment in time during the liquidation of the other party. Finally, when the other party enjoys the creditor's rights to the third party, it does not exercise the subrogation right according to law, and when the other party transfers assets to the third party without authorization to avoid debts, it does not exercise the cancellation right according to law. 3. Slack in exercising the right of claim. After the other party breached the contract, the creditor should have exercised the right of claim in time and asked the other party to bear the liability for breach of contract. However, in practice, some creditors are often slow to exercise their creditor's rights, neither consulting with creditors in time, nor asking arbitration organs or people's courts to solve them in time, even exceeding the limitation of action, thus losing the right to ask people's courts to ensure the realization of their creditor's rights in accordance with litigation procedures.
Second, the legal relief of corporate debt crisis
(1) Both parties negotiate to pay off debts. China's General Principles of Civil Law and the new Contract Law implemented last year have established the principle of autonomy of will, and the parties have the right to establish, change and terminate civil legal relations independently without violating the prohibitive provisions of the law. The settlement of debts between the parties should also belong to the scope of party autonomy. Therefore, the parties' negotiation to pay off debts should be recognized by law.
Negotiating debt repayment has the advantages of simplicity, low cost and time limit, but there are also some shortcomings. If the debtor fails to keep his word and refuses to perform the debt repayment agreement, it can only be solved through other legal channels.
(2) Pay off debts through litigation. Negotiating debt repayment is a means of private relief, and the court's compulsory debt repayment is a public relief. When the two parties cannot negotiate to repay the debts, the creditor enterprise may bring a lawsuit to the people's court to ensure the realization of its creditor's rights through the judgment of the court. Of course, consultation is not a necessary procedure, and the parties can bring a lawsuit directly to the court without consultation.
(3) bankruptcy and debt repayment. When the debtor's enterprise is insolvent and unable to pay off the debts due, the creditor's enterprise should apply for bankruptcy of the debtor's enterprise in time according to law to ensure that its creditor's rights are met to the maximum extent.
(4) Merging and paying off debts. Liquidation of merger debt refers to the way in which an enterprise absorbs and merges other enterprises by buying in cash or exchanging shares for assets or shares of other enterprises, so that they lose their legal personality or form a holding company to change the legal entity, and the surviving enterprise or holding company pays off the debts of the absorbed enterprise or the controlled enterprise. Enterprise merger can give full play to the combination efficiency of enterprises, optimize the economic structure, and properly handle the problems left over by debtor enterprises. After the merger of enterprises, the debts of the merged enterprise will be borne by the merged enterprise, and the employees of the merged enterprise will be resettled by the merged enterprise, which is not only conducive to the repayment of corporate debts, but also conducive to maintaining social stability.
(5) Debt-to-equity swap. Debt-to-equity swap refers to the method of debt repayment in which creditor enterprises and debtor enterprises convert creditor's rights into shares according to their value through consultation, so that creditor's rights can be converted into equity, thus eliminating corporate debts. At present, as an important measure of enterprise transformation, debt-to-equity swap has made some achievements, but there are still many problems that need to be explored in practice.
(6) Exercise the security interest. In order to ensure the realization of creditor's rights, China's "Security Law" stipulates that security interests can be set above creditor's rights, including mortgage, lien and pledge. According to the principle that real right is superior to creditor's right, when the debtor fails to perform the due debt, the creditor can sell or auction the collateral according to law, and the price will give priority to compensation. However, in practice, many creditors do not attach importance to the role of security interests, and do not make debtors provide the security interests they deserve, or even if debtors provide security interests, they cannot actively exercise security interests when debtors fail to perform their debts, and their creditor's rights cannot be realized.
legal ground
People's Republic of China (PRC) labor contract law
Article 74 Supervision and inspection by the labor administrative department The labor administrative department of the local people's government at or above the county level shall supervise and inspect the following implementation of the labor contract system according to law:
(a) the rules and regulations formulated by the employer and directly related to the vital interests of workers and their implementation;
(2) The conclusion and dissolution of the labor contract between the employer and the employee;
(three) the labor dispatch units and employers to comply with the relevant provisions of labor dispatch;
(four) the employer's compliance with the provisions of the state on the working hours and rest and vacation of workers;
(five) the employer's payment of labor remuneration agreed in the labor contract and the implementation of the minimum wage standard;
(six) the employer's participation in various social insurances and payment of social insurance premiums;
(seven) other labor supervision matters stipulated by laws and regulations.