Private financing has its realistic soil in China, and internal financing of enterprises has its objective rationality.
First of all, investors who raise funds internally often have a full understanding of relevant information and risks, can objectively look at potential risks and have certain tolerance. At the same time, fund-raising within the unit is mainly to solve the funds needed for the development of the unit, which is not only beneficial to the development and stability of the enterprise, but also beneficial to the interests of employees.
Secondly, fund-raising that is not for the purpose of personal use by the unit does not belong to internal fund-raising of the unit. It is related to the interests of the unit and employees. Although the risk of fund-raising within the unit is more controllable than that in the society, fund-raising within the unit must be used for the production and business activities of the unit. An important premise of illegal fund-raising by omission is to take it away from employees and use it in the unit, which is an important basis for rationalization and rationalization of such fund-raising activities.
Thirdly, the lender must be strictly limited to the unit, and the branch of the enterprise that cannot bear the responsibility independently should be recognized as the unit. Fund-raising within the unit does not belong to the act of accepting social personnel to illegally absorb public deposits for enterprise staff and then absorbing funds from them.
First, the understanding of "internal units"
Borrowing objects are limited to employees within the company. The employees here do not include the company personnel who illegally absorb public deposits through open recruitment. In addition, it is necessary to analyze the situation that employees in the unit absorb funds from external relatives and friends or others and lend them to the unit for use: if the unit has subjective understanding, encouragement and pressure, combined with subjective and objective conditions, it can be considered as illegally absorbing public deposits. If the fund-raising targets include both the employees of the unit and the public, it shall be deemed that the illegal absorption of public deposits is fully in place.
Two, to raise funds for the production and operation of the unit itself.
Internal fund-raising is one of the prerequisites for a company's legal behavior. It is precisely because the enterprise's own development is in urgent need of financing that financing is difficult. In order to encourage the development of enterprises, this fund-raising method is allowed. The purpose of raising funds is to promote the growth of enterprises, thus ensuring the investment safety of employees and minimizing the negative impact of this financing method on the financial system.
Third, we should adopt legal ways of borrowing.
As a type of private lending, the lending behavior between units and employees will still be adjusted by civil and administrative laws, regulations and policies related to private lending. Therefore, the fund-raising methods within the unit, including the interest rate of loans, should meet the requirements of the Contract Law, the General Principles of the Civil Law and relevant judicial interpretations. If the promised interest rate is extremely high and completely deviates from the enterprise's own development needs and capital fundamentals, it is impossible to have solvency at all, and the possibility of illegal fund-raising is not ruled out.
In violation of Article 14 of the Provisions on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases, the loan contract is invalid. Article 14 of the judicial interpretation stipulates that "if funds are raised from employees of the unit and lent to others for profit", the private lending contract is invalid. However, whether the contract is invalid or not is defined as illegal fund-raising, which is not stipulated in the judicial interpretation. It should be determined by comprehensively considering the conditions such as time, amount and object of loan, and further distinguish it from related concepts.
Fourth, when understanding and determining whether the fund-raising behavior within the unit is legal, we should carefully grasp the legal essence of the above key conditions and focus on the following situations.
(1) Fund-raising from employees of the unit and the public should not be considered as legal fund-raising. Because the object of fund-raising includes both the staff of the unit and the staff of other units, this fund-raising behavior is aimed at unspecified objects. If we distinguish between the two situations, it is obviously not in line with the principle of subjective and objective unity to regard the fund-raising difference of the personnel in this unit as legal fund-raising within the unit.
Take the case of a textile industry company illegally absorbing public deposits as an example. The company has three types of deposits: the first type is the company's non-employee deposits; The second category is that depositors are not employees of the company, but deposit through employees of the company, including couples; The third category is company employees. We believe that although textile enterprises can be divided into three categories, the funds absorbed by textile enterprises are aimed at unspecified objects, and whether employees' deposits conform to their subjective wishes. Moreover, because the whole deposit-taking behavior is under the intentional control of the same crime, it should be carried out in accordance with the principle of subjective and objective consistency, and all funds should be uniformly identified as the amount of illegally absorbing public deposits, without artificial distinction according to whether depositors belong to employees.
(2) "Inside the company" should be limited to employees within the company. If the "nominal investor" is different from the "actual investor", that is, the "investors" are all employees in the company on the surface, but for some reason (such as the pressure exerted by the company on employees, the relatives and friends of employees are willing to participate in the operation, etc.). ), a lot of money comes from non-unit employees. This situation needs to be comprehensively judged by combining subjective and objective conditions.
There are many examples of this special financing in practice. First, borrow money in the name of an insider. For example, a county hospital needs funds to buy large-scale medical equipment, but due to the influence of bank credit scale, it can't get enough funds, so it raises the gap funds through internal staff. However, due to the long-term expansion of equipment investment by internal fund-raising, the employees in the enterprise are unable or unwilling to invest again, and finally raise funds from the society in the name of internal employees. The creditor's rights certificate for investors is the receipt certificate of their internal employees as creditors.
The second is to borrow money after financing through brokers. These brokers are mainly relatives or friends of private entrepreneurs or senior managers, who publicize in their respective work circles and life circles, and then lend directly to enterprises in their own names. For example, a private building materials enterprise can raise one million yuan through the relatives and classmates of the company managers in their respective work units, and the interest is twice as high as that of the bank, so it can be used all the year round.
The third is to raise funds in the name of preparing for listing. For example, a pharmaceutical company listed in Singapore raised 654.38 million yuan from each employee in order to meet the requirements of listing in the mainland A-share market, and promised to convert it into shares after listing within the expected three years. As a result, 20 million RMB was raised within one month. However, the survey shows that most employees of this enterprise are involved by the public in the name of employees, except for executives. These special "internal fund-raising" use the non-prohibition of the law to "specific minority" to avoid examination and supervision, so as to achieve the purpose of "internal fund-raising".
When judging whether the internal fund-raising inconsistent with the actual investor is legal, if the unit is subjectively informed, then the fund-raising is social and illegal to a certain extent and should not be regarded as legal fund-raising within the unit.
(3) Absorbing social workers as employees of the company and then absorbing funds from them does not belong to internal fund-raising of the company. In practice, first of all, through open recruitment, the fund-raising intention is indicated to the applicant at the same time, and the fund-raising participants become employees of the company while participating in fund-raising. For example, there are many cases of "afforestation in Wan Li". This illegal absorption of public deposits through pyramid schemes cannot be regarded as internal legal fund-raising. The second way is to hire social workers as employees and then absorb funds from them, which is somewhat hidden. Take a fruit and vegetable processing company illegally absorbing public deposits as an example. The company set up chain supermarkets, hired supermarket managers and agents, and adopted measures such as promoting the company's high-tech products, developing "promoters" and recruiting "salesmen". After signing an agreement with the masses in the name of the company, they become "promoters" and "salesmen" of the company, and then borrow money from "promoters" and "salesmen" in the name of the company. In addition to returning the principal, they will also get a monthly rebate in the form of wages and loan interest, with a total rebate of 8,360 yuan a year (the yield is about 38%).
(four) the fund-raising that is not used by individuals in this unit does not belong to the internal fund-raising of this unit. It is an important prerequisite for the legitimacy of the company's internal financing for its production and business activities. The legitimacy and rationality of this fund-raising behavior is an important foundation. First, it is related to the interests of the unit and employees; Second, compared with social fund-raising, its risk is more controllable.
Of course, when dealing with such disputes, we should not think that it is illegal to absorb public deposits because of the bad circumstances of fund-raising within the unit. As long as the fund-raising behavior is limited to employees within the unit and the fund-raising is used for the production and business activities of the unit, it is not illegal to absorb public deposits. For example, in order to develop the market, a market construction management service center threatened to transfer from Chengguan to rural outlets with a high monthly interest rate of 1.5%, raising funds for more than 300 employees. This case is in danger of transferring employees' jobs. Although the situation is not good, it is still an effective internal fund-raising unit rather than illegally absorbing public deposits.