Legal characteristics
1 is the core enterprise of affiliated joint enterprise group, and its legal status is the parent company (also called leading enterprise).
2. Its organizational form shall conform to the company form prescribed by law: limited liability company or joint stock limited company.
This is a mixed holding company. In addition to the actual control of subsidiaries, it also directly conducts business activities, which must legally comply with the relevant provisions of the state on holding companies.
4. The basic relationship between the parent company and the subsidiary company is the relationship between shareholders and the company, that is, the parent company is the shareholder of the subsidiary company and the subsidiary company is an independent legal entity.
5. The parent and subsidiary companies have legal provisions on shareholding and special obligations: mutual shareholding is prohibited (no reverse shareholding); Generally, their liabilities are independent, and there is no * * * debt of enterprise groups. Under special circumstances, the parent company is responsible for the debts of its subsidiaries (if the parent company has promised to guarantee).
6. Accounting system: (1) The parent company must prepare group settlement statements and group consolidated accounting statements; (2) The consolidated accounting statements are only used by shareholders, the public and the government to understand and master the operating conditions of the Group; (3) Tax payment and accounting are based on independent legal persons within the group.
7. Manage relationships. In the subordinate joint enterprise groups, the group companies implement unified management on behalf of the enterprise groups. It has the right to exercise the rights owned by the group in the name of the group, but it also undertakes the obligations of the group. Generally speaking, in a subordinate joint enterprise group, the management organization of the group should be decided by the members of the group through consultation according to the articles of association of the group. The management organization of the group is often combined with the management organization of the group company (also known as Xiaban). Therefore, the group company should not only pursue its own interests, but also pursue and take into account the interests of the whole group, that is, the interests of the group members. Among them, due to the particularity of the parent-subsidiary relationship, the subsidiary has operational autonomy, but is controlled by the parent company. Parent company to subsidiary company: (1) formulate unified development strategy and long-term plan; (2) expanding production capacity or opening up new business areas; (3) Transfer of property rights and merger of other companies; (4) Selection and appointment of the chairman and directors of subsidiaries.
8. The relationship between the group company and the group member enterprises other than its subsidiaries, especially how to realize unified management, shall be determined according to the articles of association of the group. [ 1]
Substitution feature
(l) The essential feature of a group company is a vertical organization system based on the parent-subsidiary relationship. The group company itself has independent legal personality, which is a limited company or a joint stock limited company in the form of legal person property right system. The group company is the core enterprise of the enterprise group, usually the parent company, with independent and limited capacity for civil liability.
(2) The group company consists of a parent company and several subsidiaries. Legally speaking, the parent company is the group company itself, which includes several subsidiaries and affiliated enterprises. Among them, the subsidiary refers to the subordinate enterprises in which the parent company holds an absolute controlling position (generally holding more than 50%); Associated enterprises refer to joint-stock enterprises whose parent companies only have general shareholding relations, and enterprises with various fixed cooperative relations. In short, there can only be one parent company, and there can be multiple subsidiaries or affiliated enterprises.
(3) From the perspective of internal organizational relations, the parent company takes equity property rights as a link to vertically control subordinate enterprises. Including: wholly-owned subsidiaries with all property rights (parent company holding 100%, also known as branches); Holding subsidiaries holding more than half of the shares (the parent company holds 51-99%); Affiliates holding a certain proportion of shares (25-50% of the shares are called high-quality holding subsidiaries, and less than 25% of the shares are called arbitrary holding subsidiaries. This may not be called the parent company). Usually, subsidiaries cannot hold the shares of the parent company in turn.
(4) The property right relationship of the group company is clear. Generally speaking, group companies are formed by the original sponsors through continuous development, expansion and fission. They set up branches internally through investment and continue to acquire and control other competitors or related enterprises externally through the capital security market. Therefore, the blood relationship between the parent company and its subsidiaries is stable and closely combined. [2]
Pattern structure editing
Organizational model and structure of group companies
The organizational model of a company, also known as the organizational structure, includes the various components of the company's leadership tasks and management functions and their relationships. For modern group companies, the main organizational forms are: linear function system, business division system and holding management system.
1, linear function system (U-shaped structure for short)
The linear functional system, also known as the linear staff system, combines the direct command of leaders with the professional guidance of functional personnel, and has the advantages of both linear and functional systems. It is one of the most common forms of modern management. More than 70% large industrial enterprises in the United States have adopted U-shaped structure.
The essential feature of linear functional system is that the company headquarters is huge and divided into several functional departments. The headquarters of the company plans and operates these departments and directly directs the operation of each department, which is conducive to the centralization and unification of each department and directly coordinates the work of each department, that is, all departments and subordinate units are directly managed by the top leaders of the company. It has greatly strengthened the vertical integration of production and sales activities, and thus formed the embryonic form of modern large companies. The disadvantage of this model is that each functional department lacks autonomy and enthusiasm, and it is difficult to adapt to opening up new markets and meeting the requirements of market diversification.
2. Division system (referred to as M structure)
Division system is a decentralized system, which introduces market mechanism into the company, divides it into several divisions according to products, markets, business fields and users, and implements the management organization mode of decentralized operation under centralized guidance.
The essential feature of the division system is that the division is generally unqualified and is a branch of the group company. Each business department is the basic business unit to realize the overall goal of the company. While granting authority to each business division, it is also responsible for its operation, independent accounting, self-financing and unified management. The scale of the division is generally between the head office and the manufacturer, and its own functional departments can be set up. In large companies where production and sales are separated, the business department is only responsible for organizing and directing production, not managing sales. In large enterprises, there is also a two-tier structure of business headquarters and business department. In Japan, about 60% of large companies have adopted the division system.
Division system is a direct subordinate relationship among group companies, which is not only the investment and production center of a large class of products, but also the profit center of such products. Therefore, branch management is well combined with resource allocation, scale and benefit, which is easy to create the professionalism of managers. However, the division system is also prone to selfish departmentalism, and it is difficult to coordinate between departments, and it is even more necessary to prevent excessive centralization.
3. Holding structure (H structure for short)
The organizational structure of holding company is that there are several subsidiaries under the company headquarters, which, as the parent company, controls the subsidiaries and bears limited liability. The parent company can directly manage the subsidiary by controlling the equity, and can also control it by the board of directors of the subsidiary and selling the equity assets of the company.
H-shaped structure is an organizational form for group companies to implement internal decentralization. It can not only give full play to the strategic advantages of the parent company, but also give full play to the enthusiasm and flexibility of the subsidiaries. When necessary, it is easy for the parent company to give up its unpromising subsidiaries. In this way, a mechanism of adding or withdrawing is designed in the structure, which is convenient for merger and reorganization and is very conducive to dispersing the property and business risks of the group company. In contrast, the group company has limited ability to allocate resources to its subsidiaries, and the monitoring is indirect. H-type organizational structure is more suitable for large multinational companies.
From the perspective of large enterprises in Europe and America, H-shaped structure is gradually changing to U-shaped or M-shaped structure. Generally speaking, U-shaped structure is more suitable for enterprises with single business, and M-shaped structure is suitable for enterprises with diversified business.
5 Fund management editor
Principles of fund management of group companies
Fund management is the key content to ensure the safety of fund operation and improve the efficiency of fund use in group internal control. The principles of group fund management mainly include the following four points:
1. Centralized principle
From the practice of foreign multinational companies, the power can be decentralized, but the financial power must be centralized. If there is no highly centralized fund management command system, unified and standardized financial fund management and control system, unified information platform, unsmooth information transmission channels and centralized financial data and fund settlement within the group, it will be difficult for the group headquarters to timely, accurately and comprehensively grasp the relevant information in the whole process of production and operation, and it will also be impossible to implement effective management, supervision and control. The principle of centralization is to ensure that all the funds of the group are controlled quickly and effectively, and to provide financial support and guarantee for realizing the strategic objectives of the group company.
2. Synergy principle
The principle of synergy includes the following meanings: first, the capital investment between different functions should be kept in a reasonable proportion; Second, we should maintain a reasonable proportion of capital investment between different products; Third, there should be a reasonable proportion between tactical funds and strategic funds; Fourth, the relationship of mutual adjustment and mutual financing among various departments within the group; Fifth, coordinate capital investment with enterprises or partners outside the group to win.
3. Efficiency principle
The principle of efficiency means that the group should invest as much money as possible in projects that can improve the profitability of enterprises and let more funds participate in turnover. However, from the characteristics of monetary funds, profitability must be subordinated to the need of timeliness, and profits can only be made on the basis of meeting solvency and payment ability, otherwise enterprises may have payment difficulties.
4. The principle of flexibility
The principle of flexibility requires that the capital investment and management of enterprise groups cannot be fixed, and corresponding adjustments must be made in time according to the changes of external environment and competitors. [3]
6 Differentiated editing
The difference between group companies and enterprise groups
(1) has different legal status. Enterprise group is a consortium composed of several legal persons, and it is likely to be adjusted by the partnership enterprise law in the future. The group company is a legal person enterprise, and the normative relationship between the group company and its parent company should be adjusted by the company law.
(2) Different connotations. Enterprise groups include group companies, but not all group companies need to set up enterprise groups. There are two basic types of enterprise groups. The parent company in the affiliated joint enterprise group is a group company, while in the cooperative joint enterprise group, there is no question of who is the core enterprise. All enterprises are equal and operate under the unified management of the group. In the latter enterprise group, the members of the group may all be holding companies and have their own subsidiaries, and such groups are often strong alliances.
(3) Registration methods are different. A group company can form a subordinate joint enterprise group with itself as the core, a cooperative joint enterprise group with other companies, or a company group only within the scope of the parent and subsidiary companies. The establishment of enterprise groups must be approved and registered. The group company itself only performs the registration procedures of the company as a legal person.
(4) Different organizations. The organizational form of an enterprise group is determined by the articles of association of the group (agreed by the members of the group through consultation), while the organizational form of a group company must be determined by the articles of association under the condition of meeting the requirements of the company law (subject to discussion and approval by the shareholders' meeting).
(5) The principles and basis of management are different. The principle of unified management of enterprise groups is determined by the articles of association discussed and adopted by member enterprises. The group company is an independent legal person, and its own operation and operation should comply with the provisions of the Company Law and other relevant laws; If the group company is a member of the group, it must fulfill the rights and obligations stipulated in the articles of association of the group; As the leading company in the affiliated joint enterprise group, the group company should also undertake the heavy responsibility of group management. The coordination of the interests of group companies and the mutual rights and obligations between group companies and member enterprises are important issues to be solved in group legislation and group agreements (articles of association).
(six) the responsibility and financial system are different. Enterprise groups are not independent taxpayers, but consolidated accounting statements should be prepared. The legal consequences of the group shall be jointly and severally liable by the group member enterprises (unless otherwise stipulated in the articles of association of the group). Group companies, like other member enterprises, independently carry out business activities and are independent taxpayers. Unless otherwise agreed by other member enterprises, they will not be liable for debts.
What needs to be pointed out here is that the legislation of enterprise groups in China is relatively backward. The establishment of the group, the handling of the relationship between the members of the group, the relationship between the parent company and the subsidiary company, the basic principles of enterprise group management, the monopoly of the group and the administrative group company are all lacking in legal definition and norms.
7 suggested editing
The earliest national normative document on the formation and definition of enterprise groups is Opinions of the State Commission for Economic Restructuring and the State Economic Commission on the Formation and Development of Enterprise Groups (1987 12 16). The definition of enterprise group in this document is as follows:
1. Enterprise group is an economic organization with multi-level organizational structure that meets the objective needs of socialist planned commodity economy and socialized mass production. Its core layer is an economic entity with independent management, independent accounting, self-financing, tax payment according to regulations, economic responsibility and legal personality.
2. The enterprise group is based on public ownership, with brand-name high-quality products or the main products in the national economy as the leader, with one or several large and medium-sized backbone enterprises and independent scientific research and design units as the main body, and is composed of a group of enterprises and scientific research and design units with internal economic and technical ties; It plays an important role in the production and operation activities of a certain industry or a certain kind of products, has strong scientific research and development capabilities, and has comprehensive functions such as scientific research, production, sales, information and service.
With the initial establishment of China's market economy, the above provisions can no longer cover all enterprise groups, because non-public enterprise groups already exist in real life. 199 1 Notice of the State Council on Approving the State Planning Commission, the State Commission for Economic Restructuring and the the State Council Production Office to Select a Group of Large Enterprise Groups for Pilot Project (Guo Fa [1991] No.71) pointed out: "Enterprise groups are objectively adapted to China's socialism. But the spirit of this document is mainly to support large and medium-sized state-owned enterprises to form enterprise groups. 65438+1May 1992, the State Administration for Industry and Commerce/State Planning Commission/State Commission for Economic Restructuring/the State Council Production Office jointly issued the Implementation Measures for the Registration Management of National Pilot Enterprise Groups (for Trial Implementation). The document stipulates that:
Measures for the implementation of registration management of national pilot enterprise groups
Article 2 The establishment of a national pilot enterprise group with a large enterprise or holding company as the core shall apply to the State Administration for Industry and Commerce for registration after being approved by the examination and approval authorities authorized by the State Council or the State Council. Without the approval of the registration authority, no organization or individual may use the name of the enterprise group.
Article 3 A national pilot enterprise group shall meet the following conditions:
(1) must have a strong group core with the function of an investment center. The core of the group can be a large-scale production and circulation enterprise or a holding company with abundant capital.
(b) There must be a multi-level organizational structure. In addition to the core enterprises, there must be more than three close-layer enterprises, and there can also be semi-close-layer and loose-layer enterprises.
(3) The core enterprises of an enterprise group and other member enterprises should form an organic whole through the ties of assets and production and operation. Asset holding relationship should be established between core enterprises and compact enterprises. Core enterprises, tight enterprises and semi-tight enterprises should gradually develop asset chains.
(4) The core enterprises and other member enterprises of an enterprise group have the qualifications of legal persons. Article 4 The core enterprises of national pilot enterprise groups shall be large enterprises owned by the whole people or state-owned holding companies.
Interim Provisions on the Administration of Enterprise Group Registration
Since then, the State Administration for Industry and Commerce has formulated the Interim Provisions on the Administration of Enterprise Group Registration, which stipulates:
Article 3 An enterprise group refers to an enterprise legal person consortium with a certain scale, which is stipulated in the articles of association of the group, with capital as the main link and peers as the standard, and is composed of parent companies, subsidiaries, shareholding companies and other member enterprises or institutions. Enterprise group does not have the qualification of enterprise legal person.
Article 4 An enterprise group consists of a parent company, subsidiaries, joint-stock companies and other member units. Institutions and social organizations can also become members of enterprise groups.
The parent company shall be a holding enterprise registered in accordance with the law and qualified as an enterprise legal person.
The subsidiary shall be an enterprise legal person with all shares or control rights owned by the parent company; Other members of the enterprise group shall be other enterprise legal persons, institutions legal persons or social organizations legal persons whose parent company shares or forms production and operation cooperation relations with the parent company.
Article 5 An enterprise group shall meet the following conditions:
(a) the registered capital of the parent company of the enterprise group is more than 50 million yuan, and it has at least 5 subsidiaries;
(2) The total registered capital of the parent company and its subsidiaries is more than 654.38 billion yuan;
(3) All members of the group have legal personality.
Of course, this condition has changed in view of different local regulations. At present, the minimum standards for known groups are:
(1) The paid-in capital of the parent company of the enterprise group is more than RMB100000, and it has at least two subsidiaries;
(2) The total registered capital of the parent company and its subsidiaries is more than 20 million yuan;
(3) All members of the group have legal personality.
In the process of product R&D, manufacturing and even sales, due to the large production scale, large number of people, wide range and complex product technology, in order to facilitate management, according to the characteristics of product formation process, these departments are divided into several different departments to manage, and most of them may not have legal personality, belonging to an enterprise, and administratively belonging to an enterprise. This enterprise is a group company, and its structure is not much different from that of ordinary companies. The difference from ordinary companies mainly lies in the number of people. Like a family, there are many children, and they naturally separate after marriage, but they are still a family.
Some enterprise consortia are also called group companies. Group members form alliances for business needs, which can increase the competitiveness of enterprises. Members are legal persons, accounting independently. The CEO of a group company is also the leader of a large enterprise among its members, and has no decision-making power over other enterprises. [4]
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