Can enterprises borrow money and how to legalize it?

First, can enterprises borrow money and how to legalize it?

1. Can enterprises borrow funds?

Judging from the current relevant regulations in China, there are the following provisions to restrict or prohibit inter-enterprise capital lending:

1. Article 21 of the General Rules for Loans (People's Bank of China1June 28, 1996) stipulates that the lender must be approved by the People's Bank of China to operate the loan business, hold the Legal Person License for Financial Institutions or the Business License for Financial Institutions issued by the People's Bank of China, and be approved and registered by the administrative department for industry and commerce. Article 61 stipulates that administrative departments at all levels, enterprises and institutions, cooperative economic organizations such as supply and marketing cooperatives, rural cooperative foundations and other foundations shall not engage in financial businesses such as deposits and loans. Enterprises shall not handle lending or disguised lending financing business in violation of state regulations.

2.1September 23, 996 "the Supreme People's Court's Reply on How to Deal with the Problem of the Borrower's Overdue Loan Contract" stipulates: "An enterprise loan contract violates relevant financial regulations and is invalid." "From the date when the repayment period agreed by both parties expires to the date when the judgment determines that the borrower will return the due principal, interest will be charged. The interest is calculated according to the original agreed interest rate between the borrower and the borrower. If the parties have no agreement on loan interest, it shall be calculated according to the bank's loan interest rate for the same period. "

3.1990165438+1October 12, the Supreme People's Court's "Answers to Several Questions on the Trial of Joint Venture Contract Cases" stipulates that "an enterprise as a legal person or institution invests in a joint venture, but does not participate in the joint venture, nor does it assume the risk responsibility of the joint venture, and will recover the principal and interest on schedule or on schedule.

4. Reply of the People's Bank of China on enterprise loans (hereinafter referred to as the reply) (Yintiao Law [1998] 131March 998 16). "According to the provisions of Article 4 of the Interim Regulations on the Administration of Banks in People's Republic of China (PRC), non-financial institutions are prohibited from engaging in financial business. Lending is a financial business, and enterprises of non-financial institutions are not allowed to lend to each other. " In its reply, the People's Bank of China further explained the purpose of prohibiting inter-enterprise lending: "Inter-enterprise lending activities will not only fail to prosper China's market economy, but will disrupt the normal financial order, interfere with the implementation of national credit policies and plans, weaken the state's monitoring of investment scale, and cause economic disorder. Therefore, the so-called loan contract (or loan contract) concluded between enterprises violates national laws and policies and should be considered invalid. "

Second, how to legalize capital lending?

Through the above analysis, there are great legal risks in inter-enterprise lending, but inter-enterprise lending can be legalized in some aspects. The following methods are for reference only.

1, entrusted loan

According to the Notice of the People's Bank of China on Issues Concerning Entrusted Loan Business of Commercial Banks, entrusted loans refer to loans provided by customers such as government departments, enterprises, institutions and individuals, which are issued, supervised and recovered by commercial banks (i.e. trustees) according to the loan object, purpose, amount, term and interest rate determined by customers. Commercial banks only charge handling fees when they start entrusted loan business, and may not bear any form of loan risk. Enterprises or individuals are allowed to provide funds, and commercial banks issue loans on their behalf. The loan object shall be determined by the client. This loan method solves the problem of direct financing between enterprises. It is the product of restricting inter-enterprise lending, and it is a disguised form of direct lending by enterprises. Although commercial banks will charge certain fees and increase transaction costs, it is an ideal choice because enterprises have the right to decide borrowers and interest rates and have a large profit margin.

2. Trust loan

According to the provisions of the Trust Law and the Measures for the Administration of Trust and Investment Companies, trust loan refers to a financial business in which the trustee accepts the entrustment of the principal, distributes the funds deposited by the principal according to the object, purpose, term, interest rate and amount stipulated in the trust plan, and is responsible for recovering the principal and interest of the loan at maturity. The client has full confidence in the object and purpose of the loan, and at the same time, he can take advantage of the trust company's advantages in enterprise credit and fund management to increase the security of funds and improve the efficiency of the use of funds. An enterprise can act as a principal to achieve the purpose of lending to another enterprise through trust loans.

The above is the question of whether enterprises can lend money and how to legalize it. In practice, in judicial practice, it is generally ordered to repay the principal and pay the interest calculated according to the bank loan interest rate or deposit interest rate in the same period. The agreed profit (or interest) will not be recovered regardless of whether it is obtained or not, and the borrower will not be fined equivalent to the interest of bank loans in the same period. As for how to legalize this kind of behavior, in addition to the above methods, we can deposit first and then lend, and combine deposit and loan. I suggest you consult a lawyer.

2. What are the legal provisions for inter-enterprise lending?

/kloc-Article 11 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases, which came into effect in September, 0/5, stipulates that private lending contracts concluded between legal persons, other organizations and between them due to the needs of production and operation shall be supported by the people if the parties claim that the private lending contracts are valid, except for the cases stipulated in Article 52 of the Contract Law and Article 14 of these Provisions. Thus, as long as it does not violate the relevant provisions of relevant laws, it is legal for state-owned enterprises to borrow from abroad.

Under what circumstances is it illegal for state-owned enterprises to borrow money from abroad:

1. Obtain credit funds from financial institutions and lend them to borrowers at high interest rates, and the borrowers know or should know in advance;

2. Borrowing money from other enterprises or raising funds from employees of the unit is lent to the borrower for profit, and the borrower knows or should know in advance;

3. The lender knows or should know in advance that the borrower is still providing loans for illegal and criminal activities;

4. One party enters into a contract by means of fraud or coercion, which harms the interests of the state;

5, malicious collusion, damage the interests of the state, the collective or the third party;

6. Covering up illegal purposes in a legal form;

7. Violating social public order and good customs;

8. Other violations of mandatory provisions of laws and administrative regulations.

Third, can enterprises borrow money and how to legalize it?

1. Can enterprises borrow funds?

Judging from the current relevant regulations in China, there are the following provisions to restrict or prohibit inter-enterprise capital lending:

Second, how to legalize capital lending?

Through the above analysis, there are great legal risks in inter-enterprise lending, but inter-enterprise lending can be legalized in some aspects. The following methods are for reference only.

1, entrusted loan

2. Trust loan

Fourth, can enterprises borrow money and how to legalize it?

1. Can enterprises borrow funds?

Judging from the current relevant regulations in China, there are the following provisions to restrict or prohibit inter-enterprise capital lending:

1, Article 21 of "June 28, Loan Year" stipulates that it is allowed to engage in loan business, hold the Legal Person License for Financial Institutions or the Business License for Financial Institutions issued by the People's Bank of China, and be approved and registered by the administrative department for industry and commerce. Article 61 stipulates that administrative departments at all levels, enterprises and institutions, supply and marketing cooperatives and other cooperative economic organizations, rural cooperative loans and other financial services. Enterprises shall not handle loan affairs in violation of state regulations.

2.1September 23, 996 "the Supreme People's Court's Reply on How to Deal with the Problem of the Borrower's Overdue Loan Contract" stipulates: "An enterprise loan contract violates relevant financial regulations and is invalid." "The interest during the period from the due date of repayment to the date when the judgment determines that the borrower has repaid the principal shall be calculated according to the interest rate originally agreed between the borrower and the borrower. If the two parties have not agreed on loan interest, it shall be calculated according to the bank's loan interest rate for the same period. "

3, 1990, 165438+ 10/2, the provisions of the Supreme People's Law on the trial of joint venture contract cases, the business legal person invests in a joint venture as a joint venture, but does not participate in the joint venture, nor does it bear the risk responsibility of the joint venture, regardless of profit or loss, or In addition to the refundable principal, the investor also obtained or agreed to a fine equivalent to bank interest. "

4. According to Article 4 of the Reply of the People's Bank of China on Enterprise Loans (hereinafter referred to as the Reply), non-financial institutions are prohibited from engaging in financial business (Interim Regulations on the Administration of Banks in People's Republic of China (PRC) [1998]No. 13). Lending is a financial business, and enterprises of non-financial institutions are not allowed to lend to each other. In its reply, the People's Bank of China further explained the purpose of prohibiting inter-enterprise lending: "Inter-enterprise lending activities will not only not prosper China's market economy, but will disrupt the normal financial order, interfere with the implementation of national credit policies and plans, weaken the state's monitoring of investment scale, and cause economic disorder. Therefore, the enterprise contract (or loan contract) violates national laws and policies and should be considered invalid. "

Second, how to legalize capital lending?

Through the above analysis, lending between enterprises, where there is interbank lending, can be legalized in some way. The following methods are for reference only.

1, entrusted loan

2. Trust loan