As a kind of private lending, the lending behavior between the unit and the employees are subject to the civil and administrative laws, regulations and policies governing private lending. Therefore, the unit of internal fund-raising, including the method of borrowing interest rates, should be in line with the contract law, the general principles of civil law and relevant judicial interpretations. If the commitment interest rate is abnormally high, completely deviated from the enterprise's own development needs and capital fundamentals, simply can't have solvency, and does not exclude the possibility of illegal fund-raising. Today, "Legal Letter" Bian Xiao excerpts from the Supreme People's Court, the first division of Wang Linqing, Zhang Chun, judges on the legality of the enterprise internal fund-raising behavior of the determination of the judgment, for reference of legal persons.
China's private financing has its reality soil, enterprise internal fund-raising has its objective rationality.
First of all, the internal fund-raising investors often have a full understanding of the relevant information and risks, can objectively view the potential risks and have a certain degree of tolerance. At the same time, the unit of internal fund-raising is mainly to solve the unit development of the funds needed, not only is not conducive to the development and stability of the enterprise, but also not conducive to the interests of employees.
Secondly, not for the purpose of unit self-consumption of the fund-raising does not belong to the unit internal fund-raising. It is related to the interests of the unit and employees. Although the unit of internal fund-raising risk is more controllable than the community, but the unit of internal fund-raising must be used for the unit's production and business activities. Not as an important premise of illegal fund-raising is to be taken away from the employees and used in the unit, which is an important basis for rationalization and rationalization of such fund-raising activities.
Once again, the lender must be strictly limited to the unit within the unit, can not be independently responsible for the branch of the enterprise shall be recognized as a unit. Intra-unit fund-raising does not belong to the acceptance of social workers for the enterprise staff to illegally absorb public deposits, and then absorb funds from them.
I. Understanding of "within the unit"
The object of borrowing is limited to employees within the unit. Here the unit employees do not include the people's company personnel through open recruitment illegal public deposit. In addition, the unit of internal employees to absorb external friends and relatives or others funds lent to the unit to be analyzed in detail: the unit has a subjective understanding, encouragement, pressure, combined with the subjective and objective conditions, can be recognized as illegal absorption of public deposits. Funding objects include both the unit employees and the public, as illegal absorption of public deposits in full.
Two, for the unit's own production and operation to raise funds
is one of the prerequisites for the company's behavior is legal internal fund-raising. It is because the enterprise's own development is in urgent need of financing, there are financing difficulties. In order to encourage the growth and development of enterprises, this kind of fund-raising is allowed to exist. The purpose of raising capital is to promote the growth of enterprises, thereby ensuring the safety of employees' investment, while minimizing the negative impact of this financing method on the financial system.
Thirdly, legal lending methods should be used
As a type of private lending, the lending and borrowing behaviors between the unit and employees will still be subject to the adjustment of civil and administrative laws, regulations and policies on private lending. Therefore, the unit of internal fund-raising, including the method of borrowing interest rates, should be in line with the contract law, the general principles of civil law and relevant judicial interpretations. If the commitment to the interest rate is abnormally high, completely deviating from the enterprise's own development needs and capital fundamentals, it is simply impossible to have solvency, and does not exclude the possibility of illegal fund-raising.
In violation of Article 14 of the Provisions on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, the loan contract is invalid. Judicial interpretation of article 14 provides that "to the unit of employees to collect funds from the funds lent to others for profit", the private lending contract is invalid. However, whether the contract is ineffective to define illegal fund-raising, the judicial interpretation does not provide. Should take into account the time of lending, the amount, the object and other conditions to determine, and further distinguished from related concepts.
Fourth, in the understanding and determination of the unit within the act of fund-raising is legal or not, to carefully grasp the legal nature of the above key conditions, focusing on distinguishing between the following situations
(1) to the unit within the employees and the public fund-raising, should not be recognized as a legal fund-raising. Because the object of fund-raising includes both the personnel of the unit and the personnel of other units, this kind of fund-raising behavior is aimed at unspecified objects. If the distinction between the two situations, the difference between the unit personnel fund-raising as the unit within the legal fund-raising, obviously does not accord with the principle of subjective and objective unity.
For example, in the case of a textile industry company's illegal absorption of public deposits, the company has three types of deposits: the first type is a non-employee of the company; the second type is a depositor who is not an employee of the company but deposits through the company's employees, including those who have a husband-and-wife relationship; and the third type is an employee of the company. In our opinion, although the object of the textile company to absorb deposits can be divided into three categories, but the textile company to absorb the funds is for unspecified objects, the employees whether the deposit is in line with its subjective will. Moreover, since the entire deposit-absorbing behavior is carried out under the control of the same criminal intent, it should be carried out in accordance with the principle of subjective and objective consistency, and all the funds should be uniformly recognized as the amount of illegally absorbing public deposits, and there is no need to make artificial distinctions according to whether the depositors belong to the practitioners or not.
(2) "within the unit" should be limited to internal employees. If there is a discrepancy between the "nominal investor" and the "actual investor", i.e., the "investor" is ostensibly an employee within the unit, but due to certain reasons (e.g., pressure exerted by the unit on the employee), the employee's friends and relatives are willing to participate in the investment. For some reasons (e.g., pressure exerted by the organization on the employees, willingness of the employees' relatives and friends to participate in the business, etc.) In addition, a large amount of funds come from non-unit employees. This situation requires a combination of subjective and objective conditions.
In practice, there are many examples of such special financing. First, borrowing the name of a knowledgeable person to borrow. For example, a county hospital to buy large-scale medical equipment needs funds, but due to the impact of the size of the bank credit, can not get enough money, so through internal staff to raise gap funding. However, due to internal fund-raising long-term expansion of equipment investment, the internal staff of the enterprise can not or do not want to invest again, and ultimately in the name of the internal staff to raise funds in the community, and give investors proof of debt is its internal staff as a creditor's collection vouchers.
The second type is borrowing after being financed by brokers. These brokers are mainly private business owners or senior managers of relatives or friends, in their respective work circle and life circle to publicize, and then directly in their own name to borrow money lent to the enterprise to use. For example, a private building materials enterprises, through the company managers in their respective work units of relatives and classmates to raise millions of dollars, the interest rate is twice as high as the bank, can be used year-round.
Third, in the name of preparation for listing to raise funds. For example, a Singapore-listed pharmaceutical company raised 100,000 yuan from each of its employees in order to meet the requirements for listing on the mainland a-share market, and promised to convert them into shares after listing in the expected three years. As a result, RMB 20 million was raised within a month. However, the investigation showed that the vast majority of the company's employees were involved by the public in the name of the employees, except for the participation of executives. These special "internal fund-raising" is taking advantage of the law's lack of prohibition on "specific minority groups" to avoid scrutiny and supervision, thus achieving the purpose of "internal fund-raising".
In determining whether the internal fund-raising that is inconsistent with the actual investors is legal, if the unit subjectively knows that the fund-raising is to a certain extent social and illegal, it should not be regarded as legal fund-raising within the unit.
(3) the absorption of social workers as employees of the company, and then absorb funds from it, does not belong to the company's internal fund-raising. In practice, first of all, through open recruitment, employment at the same time to indicate to the applicant's intention to fund-raising, fund-raising participants to participate in fund-raising at the same time to become employees of the company. For example, the case of "Wanli tree planting" has many such cases, this kind of illegal absorption of public deposits through pyramid schemes can not be regarded as internal legal fund-raising behavior. The second is to hire social workers as employees, and then absorb funds from them, more or less hidden. To a fruit and vegetable processing limited company illegal absorption of public deposits, for example, the company set up a chain of supermarkets, employing supermarket managers and agents, to take the promotion of the company's high-tech products, the development of "promoters", recruiting "salesmen" and other means. After signing an agreement with the public in the name of the company, it becomes the company's "promoter" and "salesman", and then borrows money in the name of the company from the "promoter" and "salesman". Salesman" to borrow money, in addition to the return of the principal, monthly wages and loan interest in the form of rebates, a year rebates totaling 8360 yuan (yield of about 38%).
(4) non-unit personal use of capital-raising does not belong to the unit of internal capital-raising. Is an important prerequisite for the legitimacy of the company's internal fund-raising for the company's production and business activities. This kind of fund-raising behavior is an important basis for the justification and rationalization. First, the relationship between the unit and the interests of employees; second, relative to social fund-raising, its risk is more controllable.
Of course, in dealing with such disputes, not because of the unit within the fund-raising have undesirable circumstances is considered to be illegal to absorb public deposits. Absorption of public deposits as long as the fund-raising behavior is limited to the unit's internal employees, fund-raising funds for the unit's production and business activities, it is not illegal. For example, a market construction management service center in order to develop a market, with the threat of transferring from the city to work in rural outlets in the form of 1.5% monthly interest rate for more than 300 employees to raise funds at high interest rates. This case has the danger of transferring employees to work. Although the situation is not good, but still belongs to the effective unit of internal fund-raising, rather than illegal absorption of public deposits.