Company, what legal risks exist during the establishment and operation of the company?
Legal risks faced by enterprises Enterprise legal risks refer to changes in the external legal environment of the enterprise during its operation. Or the possibility of adverse legal consequences for the company, including policy, strategy, market, financial, operational and other legal risks, due to the company itself failing to effectively exercise power and perform business in accordance with legal provisions or contractual agreements. From the perspective of enterprise operations, the legal risks faced by enterprises usually include the following:
(1) Legal risks of equity disputes. One of the core issues faced by enterprises in operation and management is internal disputes, such as equity confirmation, transfer, equity litigation between shareholders and between shareholders and the board of directors, as well as lawsuits and litigation cancellation requests by enterprises against operators or shareholders. . In the context of corporate law and other laws, internal corporate disputes have become one of the main issues of corporate legal risks. It has a vital impact on the business management and future development of the company.
(2) Legal risks of intellectual property rights. The number of intellectual property rights owned by an enterprise has become the main symbol of the core competitiveness of the enterprise. In particular, some foreign-funded enterprises pay more attention to the protection and local maintenance of intellectual property rights. However, in the process of protecting intellectual property rights by enterprises, incidents such as property rights infringement and defective protection mechanisms often occur, thus causing intellectual property legal risks.
(3) Contract legal risks. Contract legal risk is an important part of legal risk. It involves many aspects of an enterprise's production and operation management, is closely related to all aspects of the enterprise, and also intersects with other types of legal risks. Specifically, contract legal risks mainly include disputes caused by problems with the subject of the contract, disputes caused by imperfections in the terms listed in the contract, and disputes arising during the performance of the contract.
(4) Legal risks of corporate managers’ illegal crimes. In recent years, the legal risks caused by corporate managers, especially senior managers, due to illegal crimes have become more and more serious, and the legal risks of corporate managers breaking the law have increasingly become the focus of attention. Among various types of legal risks, the legal risks of corporate managers' crimes are particularly important to the development of the company. It may lead to the decline of the company, reduced economic benefits, and in serious cases, it may lead to losses or bankruptcy of the company.
Analysis of the Causes of Legal Risks Comprehensive analysis of the above-mentioned various legal risks, the main reasons are as follows:
(1) Enterprises have insufficient awareness of the prevention of legal risks. In many enterprises, especially some small and medium-sized enterprises, business managers do not know enough about legal risks and their consequences, do not pay enough attention to them, and do not take preventive or timely control measures in the process of operation and management. Once a legal incident occurs, Risk, although post-incident remediation was carried out, the results were not great due to the weak prevention awareness and imperfect post-incident measures.
(2) Poor business management and power imbalance. In current enterprises, there are various violations and improper operation problems. Senior management of enterprises abuse their power. There is a serious imbalance of management power between shareholders and managers at all levels. Irregular behaviors of enterprises cannot be controlled and dealt with in a timely manner. A series of The violations eventually led to the company facing serious legal risks.
(3) The enterprise’s legal risk prevention system is imperfect. In some enterprises, despite the establishment of relevant systems and mechanisms for legal risks, they still face legal risks. This is mainly because the system is not perfect enough and has not been truly implemented into actual production and operation management. Some are even just a formality, legal The risk prevention system has not fully played its original role.
Preventive Measures for Legal Risks The existence of legal risks is not terrible. The key is that enterprises must be able to recognize potential legal risks in a timely manner and quickly take effective measures to control and prevent them. The following points are: Commonly used preventive measures:
(1) Strengthen the awareness of legal risk prevention. Senior managers of enterprises should improve their understanding of the law, learn to effectively control and manage the enterprise through professional legal departments, and integrate awareness of legal risk prevention while building corporate culture to reduce legal costs and ensure the healthy operation of the enterprise.
(2) Improve the operation and management system.
Enterprise managers should make corresponding adjustments in a timely manner based on their own development and changes in the current market environment, improve their own internal operation and management systems, ensure that the enterprise's management system is legal and reasonable, can adapt to market competition, and pass various Through various channels, we urge and monitor all managers and employees to manage and operate in accordance with the law under these systems, take preventive measures against legal risks in a timely manner, and effectively control legal risks.
(3) Improve the legal risk prevention system. Legal risks come from the enterprises themselves, so enterprises should effectively prevent them from their own perspective, establish and improve legal risk prevention mechanisms, vigorously promote the legal advisory system, corporate business operation and management system, risk management early warning system, and supervision system, from within the enterprise Achieve self-restraint and supervision to ensure that the legal risk prevention system can fully function.
(4) Improve the quality of employees and perform their duties in accordance with the law. Enterprise managers should start from the grassroots level and focus on cultivating and improving the quality of enterprise employees, so that each employee can act in accordance with the law and internal rules and regulations of the enterprise at his or her job. In particular, the quality of the enterprise's legal personnel The improvement will help them conscientiously perform their duties, be able to provide reference opinions and investigation reports in a timely manner at work, accept legal consultation, act as an agent in the reconciliation and mediation of various disputes, and help enterprises reduce legal risks as much as possible. What are the legal risks during company establishment?
The biggest legal risk when establishing a company is the failure of the establishment, which will lead to shareholders holding each other accountable, as well as the legal risks with third parties due to the unsuccessful establishment of the company. We will not discuss this legal risk for the time being. What we need to pay attention to is the legal risks implied by various file or behavioral flaws when the company was established. These risks include but are not limited to: 1) False capital contribution or insufficient shareholder capital contribution, 2) False reporting of registered capital, 3) Submission of false materials to conceal important facts, 4) Withdrawal of capital, 5) Flaws in company registration files, etc.
When a company is established, the company's articles of association may be arbitrarily applied in a fixed format. The company's agency will prepare and sign various establishment documents and shareholders' meeting resolutions, and the company's legal representative, directors or supervisors may be randomly selected. , identifying dormant shareholders in order to circumvent the law, falsely stating the company's registered address to the industrial and commercial administration or tax authorities in order to enjoy tax and other preferential treatment, or submitting false qualification files to the pre-approval authority, etc., all of which will create negative consequences for the company's subsequent operations. Legal risks remain. How to avoid the legal risks of setting up a branch?
All legal consequences of the branch must be borne by the head office. These risks can only be realized by the head office's internal control system for the branch and the power constraints of the branch manager.
A branch is a branch or affiliated institution directly engaged in business operations under the head office. Although the branch has the word "company", it is not a company in the true sense. Because a branch does not have corporate legal person status, it does not have an independent legal status, and it does not bear civil liability independently.
The specific characteristics of a branch are as follows: ① A branch does not have its own independent property, and the property actually occupied and used by it is part of the head office's property and is included in the head office's balance sheet. ②The branch does not bear civil liability independently. ③A branch is not a company, and its establishment does not need to follow the company establishment procedures. It can be established after completing simple registration and business procedures. ④ A branch company does not have its own articles of association, and there is no corporate management decision-making and business execution agency in the form of a board of directors. ⑤The name of the branch company, just add the word "branch company" after the name of the head office. What are the legal risks of setting up a company and how to prevent them?
In the process of company establishment, investors often need to select cooperative shareholders and sign an investment agreement. The regular legal risks in the establishment process are as follows: 1. The shareholder's strength and reputation risk. Many investors do not fully realize this when investing, and do not seriously consider the strength and credibility of their cooperative shareholders. Once a company encounters operating difficulties, shareholders may demand that the company be dissolved or that the company cannot continue to operate, resulting in a short-lived company. Prevention: Before establishing a company, fully predict the company's operating risks, and set limits and countermeasures for possible losses; try to choose cooperative shareholders with good strength and reputation (reputation is the main thing). 2. Risks of company establishment agreement.
A company establishment agreement generally includes the amount of registered capital of the company, the amount of capital contribution from shareholders, the method and time of capital contribution, the rights and obligations of investors during the establishment process, and the cost borne if the company fails to be established, etc. The risks of establishment agreement are mainly reflected in the following aspects: 1. Lack of written company establishment agreement. In practice, the investors of a company often envision how the company will make profits in the future and rarely consider the problems that arise during the company's establishment process. Many investors do not even have a written establishment agreement between them. The lack of establishment agreement constraints among investors will inevitably lead to uncertainty about rights and obligations, which is a potential risk. Once the company establishment activities go against the expected results, this potential risk will may erupt, leading to disputes and litigation among investors. Prevention: Sign a complete company establishment agreement. 2. Lack of confidentiality clause. During the company establishment process, a lot of information about the future company (with specific patented technologies and technical secrets) and information needs to be kept confidential. Once this information is maliciously used by others, the damage to the future company will be inestimable. Therefore, the setting of confidentiality clauses is very necessary. First, it can prevent shareholders from using company information to harm the interests of the company after its establishment. Second, it can set a higher liability for breach of contract for leakers to prevent risks. 3. Legal risks arising from the lack of restraint mechanisms among shareholders. As the company's investors and the largest owners of the company's interests, shareholders can understand all the company's business activities. When the business information that shareholders understand can obtain benefits that far exceed their gains, it is very necessary to restrict shareholders' abuse of business information. . Shareholders can establish agreements to restrict shareholders from abusing company business information and prohibiting competition. The most common legal risk arising from the lack of restraint on shareholders is non-competition. A and B each invested 1 million yuan to establish Company A to engage in the sales and service of construction machinery. In the process of operation, A is responsible for market development and sales, and B is responsible for payment collection and daily management of the company. One year later, A and his wife established Company B to engage in after-sales service of construction machinery, mainly parts sales and services. Because A has a lot of customer information in Company A, A introduces the superiority of Company B's services to customers, which makes Company B's business prosper, while Company A's service profits plummet. If a shareholder invests in the same industry as the company and forms a direct or indirect competitive relationship with the company, it will be a very troublesome thing for other shareholders. In order to solve this headache problem, the best way is to write the non-compete in the establishment agreement and agree on a higher liquidated damages. What are the legal risks involved in the dormitories rented by the company to its employees?
The main risk is that if an employee has an accident in the dormitory, the company may need to bear certain facilities safety protection responsibilities. If an employee causes damage to others in the dormitory, the company may need to bear certain supplementary responsibilities within the scope of management responsibilities.
15. What are the legal risks during the company's equity transfer?
Hello, the legal risks of equity transfer include:
(1) Company liability risk
In an equity transfer contract, the transferee should be most concerned about the target company’s liabilities. In practice, most of the debts of the share transferor are asset-guaranteed debts, and there are also pending litigation and arbitration disputes, as well as intellectual property rights infringement, product quality infringement liability, and possible or upcoming disputes between the company and senior managers. Labor disputes among technical backbones, etc. Regarding the above-mentioned existing liabilities or potential liabilities, some of the share transferors know or should know, and some do not know or cannot predict when they will occur. Therefore, the handling principles and methods are also different.
(2) Legal risks of debt transfer
1. Legal risks in the transfer of existing debts
The transferee needs to fully understand the amount of existing debts, Whether there is a guarantee, interest rate and liability for breach of contract, whether the creditor has any restricted rights, etc., whether such debt is a bad debt, etc. The investigation of the above issues can enable the transferee to take the initiative in negotiations and affect the price of the transaction and the risk burden after the transfer, so it must be paid great attention to.
2. Legal risks in implicit debt transfer
For unforeseen liabilities, if they occur within the period scheduled in the equity transfer agreement and there is recourse from the actual obligee, Such responsibilities or risks should first be borne by the target company, and the risk burden of the resulting share transfer should be stipulated in the share transfer agreement.
Therefore, relevant debt-bearing issues should be included in the risk-bearing clauses to be stipulated. What the transferee strives for is to clear responsibilities with the transferor, requiring that all liabilities before formal delivery, whether intentional or negligent, shall be borne by the transferor. However, it should be noted that the transfer of equity does not affect the objects that creditors can pursue. After the transferee becomes a shareholder of the target company, it still needs to pay off the debt and then pursue repayment from the transferor according to the equity transfer contract.
On the other hand, this also involves the issue of protecting the interests of creditors. If the equity transfer results in a merger or division of the company, the relevant creditors should be notified in accordance with the statutory notification time limit. The debts after the merger or division will be borne by the surviving company or in accordance with the agreement.
3. Concealing the legal risks in debt transfer
The transferor deliberately conceals the truth and fails to disclose existing liabilities or potential liabilities to the transferee in a true, comprehensive and timely manner. , which is a violation of the information disclosure obligation and a violation of the transferor's representation and warranty obligations regarding the company's debts. When debt recourse occurs, it will seriously affect the transferee's interests and expected returns in the share transfer contract. What legal risks does the company have in terms of labor and personnel?
Mainly in terms of employment contract risks, insurance, etc. If you do it carefully, you can also avoid it cleverly... Commercial operation and management There are risks in the company's operation process What are the risks? How to avoid it?
In fact, the core risk here lies in poor operating conditions in the later period! The main risks leading to poor operating conditions are as follows: 1. Inaccurate business positioning; 2. Secondly, the operation and management level of the operating company is not in place; 3. The developer's later operation and management financial support is insufficient or unable to keep up. 4. After the property rights were dispersed, some owners breached the contract due to poor management; (there are of course many others who are just trying to attract good news, and I have little talent and knowledge). What legal risks should be guarded against during the performance of the contract?
This issue is quite complicated. . Due to different types of contracts, the contents agreed in contracts of the same type are also different. Therefore, it is difficult to determine what legal risks should be paid attention to when performing the contract. Under normal circumstances, companies should establish a complete legal risk management system to regulate and manage various activities such as contract signing and performance.