The main manifestation and influence of enterprise legal risk.
In the long-term practice of enterprise law, when I first came into contact with some entrepreneurs, I often heard them say that there is nothing in our enterprise at present. Litigation. We'll invite you when we go to court. In their minds, lawyers are litigators. If an enterprise does not have a lawsuit, it does not need a lawyer or legal intervention. At the same time, a considerable number of lawyers are also sending messages to operators, "Find me if you have something". Entrepreneurs and lawyers lack awareness of legal risk prevention and control. This kind of neglect and indifference to the prevention and control of legal risks of enterprises is one of the important factors that restrict the healthy development of enterprises and one of the direct reasons for the "death" of a large number of enterprises.
Corporate legal risks are mainly manifested in the following six aspects:
First, the legal risks in the establishment and operation of enterprises
In the process of enterprise establishment, whether the enterprise sponsors have fully designed the enterprise to be established, fully understood and planned the establishment process of the enterprise, fully fulfilled the obligation of establishing the enterprise, and whether the sponsors themselves have corresponding legal qualifications is directly related to whether the enterprise to be established can have a legal, standardized and good establishment process. It can be said that a professional legal scheme design and standardized enterprise establishment process are half the success of an enterprise. If there are legal defects at the beginning of the enterprise, then? It will inevitably bury far-reaching legal hidden dangers for enterprises in the future business process. Although this kind of legal flaw in the process of enterprise establishment may not cause legal σ machine in the short term, it will inevitably exist as a legal risk for a long time as long as it is not eliminated. Once it happens, it is likely to be a fatal blow to the enterprise.
Whether the ownership structure of the enterprise is reasonable, whether the corporate governance structure is complete, whether the supervision and restriction mechanism is sound, and how to check and balance the power among executives. If these problems are not well solved in the process of enterprise operation, it is likely to cause trouble, and internal disputes and control will directly affect the healthy development of enterprises.
Second, the legal risks in the process of contract conclusion and performance
Contract is the most common basic legal form for all kinds of enterprises to engage in business activities in the market economy. It can be said that the contract runs through the whole process of enterprise management, and as long as there are business activities, it will inevitably produce contracts. When concluding a contract, both parties to the contract consider more contractual benefits than contractual risks. While avoiding the uncertainty of trading behavior, the contract may also bury legal risks for the parties because of the defects stipulated in the contract. All enterprises benefit from continuous transactions with different entities. The widespread application of contracts in enterprise management determines the widespread existence of legal risks in the conclusion and performance of contracts. In recent years, with the enhancement of people's legal awareness, many enterprises attach importance to the conclusion of contracts. In the process of offer and acceptance, invite lawyers to participate in and draft the contract text.
But for many business contracts, signing a good contract text is only a good start, and the performance of the contract is the really important link. Letters and memoranda between the two parties during the performance of the contract? Meeting minutes, faxes, electronic data, etc. They are all valuable evidence, so we should pay attention to sorting and preservation. Compared with the legal risks of contract text, the legal risks of contract performance are more kinds and wider, and it is more difficult to manage and prevent them.
Third, the legal risks of enterprise mergers and acquisitions
On a global scale, enterprise merger and acquisition has gradually become the mainstream form of modern investment, and this complex asset operation behavior must be controlled by perfect laws in order to give full play to the positive effects of enterprise merger and acquisition. At present, China's laws and regulations on enterprise merger and acquisition are not perfect and systematic, and even there are many problems and defects in some aspects, so the legal risks arising from enterprise merger and acquisition have certain particularity.
From the perspective of legal risk, the acquisition of an enterprise has not changed the asset status of the original enterprise, and the legal risk has not changed for the acquirer. Therefore, the legal risk of enterprise merger and acquisition is mainly manifested in enterprise merger and acquisition. Enterprise merger involves company law, anti-unfair competition law, tax law, intellectual property law and other laws and regulations, with complicated operation, great social impact and high potential legal risks.
Four. Legal risks of intellectual property rights
At present, many enterprises in China do not have a strong awareness of intellectual property protection, and do not realize the market value and economic value of intellectual property from the fundamental point of view of enterprise survival and development. Intellectual property, including trademark right, patent right, copyright and other rights, is the result of creation and wisdom, and its object is a special intangible property, which needs special provisions by relevant laws. In the field of intellectual property, protection and infringement are twin brothers. If an enterprise is slightly negligent, its intellectual property rights will be easily violated by others. At the same time, a little carelessness will infringe on the intellectual property rights of others. Whether it is infringement or non-infringement, it will face huge legal risks. The preemption of "CCTV One" and "Spring Festival Evening" is an excellent example. If we look for the reasons from the enterprise itself, the lack of risk prevention awareness of decision makers and consultants may be one of the most important factors.
Verb (abbreviation of verb) Legal risk of human resource management
In China, laws and regulations related to human resources are mainly labor law and relevant administrative regulations and departmental rules formulated by the State Council. In all aspects of enterprise human resource management, from recruitment, interview, start? The use, use and signing of labor contracts, the treatment of employees and the resignation of employees are all confused, adjusted and standardized by relevant labor laws and regulations. Any violation of the law by an enterprise may bring labor disputes to the enterprise and may bring adverse effects to the enterprise.
On the other hand, for long-term development, enterprises often spend a lot of money to train business backbones and technical backbones. These key employees hold a large number of core secrets such as customer information, business secrets and technical secrets. With the development of enterprises, the expectations of key employees will also rise. Once an enterprise fails to meet individual requirements, it often threatens to quit. The high turnover rate of employees and low loyalty to enterprises are the most prominent personnel problems that plague many enterprises at present. The backbone employees who change jobs often take away valuable customer resources, business secrets and technical secrets. Generally, these employees will not leave the original industry, or choose to start their own businesses, or choose other enterprises in the same industry, and will soon become new competitors of enterprises, gradually eroding the resources and markets of enterprises. Job-hopping of core employees will often cause incalculable economic losses and sometimes even fatal blows to enterprises.
Intransitive Verbs: Financial and Tax Legal Risks of Enterprises
In recent years, a large number of corporate finance and tax cases have appeared. It can be seen from a certain aspect that the legal risks of enterprises in financial taxation are increasing day by day. Under the current fiscal and taxation policy environment in China, it is difficult to distinguish between reasonable tax avoidance and tax evasion. If the tax boundary is not handled properly, the enterprise may suffer unnecessary economic losses and even bear corresponding criminal responsibilities, and as a legal representative, it may also suffer jail.
The above six aspects of corporate legal risks have brought many influences to enterprises. In short, it can be summarized from the following three aspects:
1. The result of legal risk is business loss. For whatever reason, the occurrence of legal risks will either lead to the increase of enterprise expenses or the loss of business opportunities or commercial advantages. If it is serious, it will lead to complete loss of competitiveness and defeat from the market.
2. The impact of legal risks on enterprises is a chain reaction. Due to the continuity of business activities, once a link appears legal problems, it will inevitably lead to a series of business activities being damaged. When there are a large number of similar legal acts in enterprises, the legal risks of enterprises are likely to lead to the possibility of similar incidents breaking out at the same time. For example, if an enterprise delays the performance of a loan contract, it may cause the collective panic of many creditors of the enterprise, leading to the break of the enterprise's operating capital chain, thus losing the possibility of alleviating the pressure on operating capital. The occurrence of some legal risks may cause great damage to the goodwill of enterprises, thus leading to the loss of public recognition. Even if the legal risks are solved, it is difficult for enterprises to restore their original commercial reputation.
3. It is difficult to estimate the damage of legal risks to enterprises. Once legal risks break out, enterprises themselves are often difficult to control, which is likely to bring quite serious consequences, and sometimes even subversive disasters. Wang Fucheng, vice president of China Oil and Gas Co., Ltd. believes that enterprises, as the main body of the market, must understand, apply and abide by the market rules, otherwise they will pay a high price or even be expelled from the market.
In recent years, the cases of Enron, WorldCom, CNOOC and other domestic and foreign companies reveal how the market economy behaves as a regular economy and a regular economy from different aspects. These vivid cases have repeatedly warned people that if managers do not have the ability and quality to govern enterprises according to law and lack the corresponding awareness of legal risk prevention and control, it will not only be difficult to have the qualification to lead a modern enterprise, but also make enterprises suffer catastrophic blows and losses.
The experience and lessons of the success or failure of Chinese and foreign enterprises prove that the market economy contains unlimited business opportunities, which may not only bring more lucrative competitive returns to enterprises, but also bring more potential legal risks to enterprises. Therefore, establishing and perfecting the legal risk prevention and control mechanism and attaching importance to and strengthening the legal risk prevention of enterprises are the most basic requirements for strengthening enterprise risk management, and also a basic work for enterprises to adapt to changes in market environment and create market competitive advantages. It can be predicted that in the near future, improving the awareness of preventing legal risks and reducing the occurrence of legal risks has become an indispensable "safety shield" for entrepreneurs to "fight" the market.