How effective is inter-enterprise capital lending?
Inter-enterprise capital borrowing refers to the behavior that enterprises transfer their temporarily idle funds to other enterprises at a certain price in market economy activities. Corporate capital lending is a common way of short-term financing for enterprises, but what is the effect of corporate capital lending? Generally speaking, corporate capital lending will be invalid because it violates the mandatory provisions of laws and regulations, but in some cases, corporate capital lending is effective in some special industries. The specific analysis is as follows:
(1) Inter-enterprise fund lending is invalid because it is illegal. Judging from the provisions of the current legal system, there are two main laws and regulations that restrict or prohibit enterprises from borrowing funds.
1. The Judicial Interpretation of Enterprise Capital LendingNo. 1996 issued by the Supreme Court stipulates that an enterprise loan contract violates relevant financial laws and regulations and is an invalid contract.
Second, the Reply on Corporate Lending issued by the People's Bank of China 1998 stipulates that non-financial institutions are prohibited from engaging in financial business, and lending belongs to financial business, and enterprises of non-financial institutions are not allowed to lend to each other.
(2) The enterprise's capital lending is effective.
1. The loan contract between real estate development enterprises is valid. In 2004, before the revision of the new Company Law, the Supreme People's Court issued a judicial interpretation, which stipulated that if the parties to a cooperative real estate development contract agreed to provide funds and only charge a fixed amount of money, it should be regarded as a loan contract, which confirmed the legality of borrowing between enterprises in the real estate development field and recognized the real estate development model of charging a fixed return without taking operational risks.
2. The loan contract between the enterprise and the natural person is valid. From the perspective of company law, the whole article does not directly stipulate the legality of company lending, but it can be seen from Dong's loyal obligations that directors and senior managers can lend company funds to others with the consent of shareholders' meeting, shareholders' meeting or board of directors. Others should include natural persons and legal persons. If the central bank prohibits enterprises from borrowing for the need of financial industry supervision, then according to the above understanding, the loan contract between enterprises and natural persons should be legal and effective.
legal ground
General principles of loans
Article 21 A lender must be approved by the People's Bank of China to operate the loan business, hold the License for Legal Person of Financial Institution or the Business License of Financial Institution issued by the People's Bank of China, and be approved and registered by the administrative department for industry and commerce.
Article 22 The rights of the lender:
To independently review and decide on loans according to loan conditions and loan procedures, and have the right to refuse any unit or individual to force them to issue loans or provide guarantees, except for specific loans approved by the State Council.
1. Ask the borrower to provide information related to the loan;
Two, according to the borrower's conditions, decide whether to loan, loan amount, duration and interest rate;
Three, understand the borrower's production and business activities and financial activities;
Four, according to the contract from the borrower's account to collect the loan principal and interest;
Five, the borrower fails to perform the obligations stipulated in the loan contract, the lender has the right to require the borrower to repay the loan in advance or stop paying the loan not used according to the contract;
Six, in the loan will suffer or have suffered losses, according to the provisions of the contract, take measures to make the loan from losses.