First, enhance the awareness of corporate legal risk prevention.
In China, whether it is a state-owned enterprise established under the planned system or a private enterprise born under the guidance of the market, legal risk management is often in a secondary position, and most of the systematic prevention mechanisms before, during and after the event have not been formed. Therefore, it is often in a passive situation when dealing with the complex domestic and international market environment. Market economy is legal economy. As the main body of market economy, enterprises must operate and manage according to law and carry out various economic activities according to law, which is the most basic requirement for enterprises. Various behaviors of enterprises, such as restructuring, merger and reorganization, foreign investment, contracts and production and sales, all have different degrees of legal risks, and any enterprise should pay attention to risks, prevent risks and resolve risks. State-owned enterprises must establish a strong awareness of legal risks, and managers of enterprises must pay attention to improving their legal literacy and legal concepts, make major business decisions according to law, and effectively bring enterprise restructuring, management, mergers and acquisitions, and dispute resolution into a standardized legal track.
To enhance the awareness of enterprise legal risk prevention, we should pay attention to strengthening the legal knowledge training of all personnel, especially the training of enterprise executives. Through training, let everyone know what legal risks are and what impact they will bring to enterprises. If senior managers can understand the possible impact of legal risks, they will certainly consciously guard against risks. At present, there have been some cases to warn enterprises, and the top management of enterprises has gradually paid attention to this. For example, in recent years, there have been many disputes over corporate loan guarantees. Some enterprises lack detailed understanding and analysis of the lender's assets and solvency, and provide loan guarantees for people only by business or personal relationships; Some even collude with banks to defraud guarantors to provide guarantees, which brings legal risks to enterprises to bear joint and several repayment responsibilities. If the management of the enterprise is aware of legal risks, it can take the initiative to submit the business related to the law to the Legal Department for review, instead of going through the motions. The company's major decisions should also have the direct participation of legal personnel. Similarly, we should also pay attention to the training of enterprise employees, which is also the key factor for the success of legal risk management. Carry out in-depth legal publicity, education and training for all employees of the enterprise, so that all employees can form the thinking mode of obtaining rights, exercising rights and protecting rights according to law as soon as possible, gradually develop the behavior habit of operating according to law and compliance, constantly enrich relevant legal knowledge in their work, keep legal vigilance at all times, perform their duties and give full play to their functions at various risk control points, and finally build a solid foundation for legal risk prevention.
Second, improve the legal risk prevention mechanism of enterprises
To grow healthily, enterprises must establish and improve the legal risk prevention mechanism. At present, the soaring speed of corporate legal risk is much faster than the construction speed of risk prevention system, not to mention the risk management in the institutional sense. Many enterprises only think of the legal department and legal personnel when something happens. Analyzing the causes of major legal disputes, the core problems are hasty decision-making, lax legal review, and some even have no legal argumentation at all, lacking the necessary system and mechanism guarantee. Therefore, to build a legal risk prevention system of enterprises, we must make great efforts to establish and improve the working mechanism of legal risk prevention of enterprises.
First of all, it is necessary to establish and improve legal risk prevention institutions. Since the establishment of state-owned assets supervision and administration institutions in various places, there have been more and more cases of major legal disputes that state-owned enterprises have requested SASAC to mediate, and the subject matter involved has become larger and larger. According to the survey, 2/3 of the enterprises involved did not set up a special legal affairs agency. Because legal risks exist in the whole process of daily operation of enterprises, enterprises should and must set up corresponding institutions to be responsible for legal risk management. To this end, the State-owned Assets Supervision and Administration Commission of the State Council promulgated the Measures for the Administration of Legal Advisers of State-owned Enterprises in 2004, which clearly stipulates: "Large state-owned enterprises should set up legal offices, and other enterprises can set up legal offices according to their needs. The enterprise shall, according to the needs of the work, equip the legal affairs institution with enterprise legal counsel. " The design of this system provides a clear legal norm for enterprises to establish and improve the legal working mechanism, and enterprises can establish corresponding working institutions on this basis. Legal affairs agencies can participate in and respond to the legislation, law enforcement and supervision opinions of the regulatory authorities, and can be responsible for formulating and supervising the implementation of the corresponding rules and regulations of enterprises internally, coordinating the full cooperation among internal members, and ensuring the first level of legal risks from the system.
Secondly, we should establish and improve the legal risk prevention system. It is necessary to improve the rules and regulations of enterprises in accordance with the new Company Law and other laws and regulations, adhere to operating according to law, and govern enterprises according to law. With the gradual change of the legal environment and the continuous development of the market economy under the new situation, only by insisting on operating according to law, formulating and perfecting important rules and regulations, enhancing legal risk awareness, improving working procedures and strengthening internal management can enterprises plug business loopholes, lay a solid foundation for the sustainable development of enterprises, and improve the legal consultant system in accordance with the requirements of the Law on the Administration of Legal Advisers of State-owned Enterprises. The scientific and standardized working system and workflow of enterprise legal counsel can effectively avoid the legal risks of enterprises. We should gradually establish an organizational model and working mechanism for legal risk prevention led by the principal responsible person of the enterprise, led by the general counsel of the enterprise, and jointly participated by the legal department and business departments. It is necessary to strengthen the construction of legal internal control system. Refine enterprise laws and regulations related to enterprise legal affairs management, contract management, trademark patent management, enterprise bidding management, litigation project management, etc. , improve the operation process to ensure that the control points of each process are fully in place; It is necessary to highlight the establishment of a risk early warning mechanism to avoid legal risks in advance. According to the overall strategic goal of the enterprise, the classification method of risks is determined, all kinds of legal risks are classified and sorted, and the risks are divided into three levels: high, medium and low, and effective measures to resolve and avoid legal risk management are put forward to minimize legal risks. In view of different levels of legal risks, focusing on risk early warning and prevention, the legal relief after the event will gradually be transformed into legal risk prevention in advance and legal control in the event. Establish enterprise legal risk analysis, evaluation, control and management system, regularly investigate and analyze possible legal risks, pay attention to information management, actively use legal risk control system, and improve scientific management level; It is necessary to highlight the prevention of legal risks in key areas such as major investment and financing and intellectual property rights, and actively promote the legal opinion system that emphasizes civil and commercial affairs. When a company makes major business decisions, legal professionals should participate, and legal professionals should demonstrate the legality and feasibility of major business management activities of the enterprise and issue written legal opinions to provide legal protection for scientific decision-making of the enterprise.
Third, we should allocate a group of high-quality legal affairs talents. Facing the challenge of economic globalization, enterprises in various countries pay more and more attention to legal talents in order to understand and apply the rules in time. On the one hand, we should make a good entrance. Adhere to the introduction of enterprise legal professionals, and effectively have a team of professionals who are familiar with both law and enterprises. On the other hand, it is necessary to establish an incentive mechanism for enterprise legal persons. Actively explore the establishment of legal adviser post grade system, reward and punishment system and regular training system. In addition, it is necessary to innovate the legal adviser system and actively explore the implementation of the external legal adviser system. At present, corporate legal talents are poorly paid and lack of high-level talents. We are good at using the "outside brain" to form a legal talent system with internal and external coordination.
Third, improve the corporate governance structure.
According to a survey, the awareness of legal risks of the top 500 enterprises in China is still lacking, and corporate governance has become the biggest source of legal risks of the top 500 enterprises in China. Therefore, experts believe that the three strategies to prevent legal risks in China are corporate governance, contract management and intellectual property rights, and corporate governance bears the brunt. The Cao Singapore incident finally cost China more than 500 million dollars. This incident has exposed that China enterprises, which have been operating in a low-risk environment for a long time, have not paid enough attention to legal risks after entering the international capital market. At the same time, it also exposes that China enterprises, especially their overseas subsidiaries, may have serious problems in corporate governance. The essential reason for the serious problems of many state-owned enterprises is neither the lack of system nor the failure of supervision, but the problems in corporate governance structure, internal control system and risk prevention. Therefore, to ensure the safety of state-owned assets and realize the preservation and appreciation of state-owned assets, we need not only a team of high-quality operators, but also a scientific governance structure and strict internal control system.
In the modern enterprise system, by establishing and perfecting the corporate governance structure, rationally allocating the powers of shareholders' meeting, board of directors, board of supervisors and managers, fairly distributing interests, and clarifying the responsibilities of decision-making, implementation and supervision, an effective incentive, supervision and checks and balances mechanism is formed within the enterprise. This is not only the important content of internal management control, but also the foundation for the establishment of enterprise internal control system and the premise for effective operation. Therefore, enterprises in China, especially those in China, must implement a modern enterprise system in accordance with the provisions of the new Company Law, establish a modern corporate governance structure in which the investors, the board of directors, the board of supervisors and the managers have their own responsibilities, coordinate their operations and effectively check and balance, and strive to solve major problems such as imperfect corporate governance structure, irregular operation, "empty shell" of the board of directors, "insider" control and excessive concentration of power.
Fourth, create a good enterprise risk prevention environment.
Good traitor risk prevention environment is an important guarantee for enterprises to implement legal risk prevention. Therefore, it is particularly important to create a harmonious environment for enterprises to prevent legal risks. We should pay attention to building an honest and harmonious society. Honesty is the basic requirement of market economy for enterprises, and it is the source, foundation and development foundation of enterprise honesty. As the most important microeconomic subject in the process of economic operation, the credit status of enterprises is not only directly related to their own reputation, but also affects the integrity construction of the whole society. In the long run, if an enterprise wants to establish a credit system, it must closely link credit with corporate culture. Only through the construction of corporate culture and the creation of corporate integrity concept can we truly establish the concept of integrity, enhance the core competitiveness of enterprises, and let integrity be widely established and developed in enterprises. It is necessary to incorporate the core values of decision-making and operation according to law into corporate culture management, and form a cultural atmosphere conducive to corporate legal risk prevention. The enterprise's own efforts are internal factors, which play a decisive role in the establishment of the credit system, and the government should create a positive development environment for it from a macro perspective; It is necessary to increase investment in corporate legal affairs, strive to give priority to improving the treatment of personnel, office conditions and relieve worries, and increase work guidance to make legal advisory institutions run well and staff work with peace of mind; To actively strengthen the exchange of legal risk prevention among enterprises, we can rely on intermediary organizations such as the Association of Enterprise Legal Advisers to organize regular seminars and exchanges. Learn from each other's successful practices and advanced experience in preventing legal risks. At the same time, we should further broaden the horizons of enterprises and provide good external conditions for continuously improving the legal risk prevention mechanism of Chinese enterprises.