In China's judicial practice, loan contracts are generally divided into three types according to borrowers. The first category is loan contracts between financial institutions and between financial institutions and natural persons, legal persons and other organizations (the loan relationship between financial institutions is called interbank lending); The second is the loan contract between natural persons. However, the actual lending relationship in social and economic life is more extensive than that involved in contract law, including the lending relationship between non-financial enterprises and the lending relationship between natural persons and non-financial enterprises; The third is an inter-enterprise loan contract in which both parties are outside financial institutions such as banks.
First of all, the first loan contract complies with the provisions of the Commercial Bank Law, the General Rules for Loans of the People's Bank of China and other financial laws and regulations, and is legal and effective.
Secondly, the second loan contract is also legal. The loan contract between an enterprise and a natural person is based on the Opinions on the Trial of Loan Cases by People's Courts promulgated and implemented by the Supreme People's Court (Law (People's Republic of China)
What is worth studying is the third loan relationship between enterprises.
At present, the legal regulation of enterprise capital lending is basically the departmental rules and relevant judicial interpretations of financial management institutions such as the People's Bank of China, and there are no clear laws and administrative regulations; However, because the rules can't be used as the basis for the court to finalize the case, the real legal basis for the court to confirm the invalidity of enterprise capital lending is actually only a number of judicial interpretations of the court. The core idea of judicial interpretation is that corporate lending violates relevant financial laws and regulations and is an invalid contract. According to the regulations or explanations of financial management institutions such as the People's Bank of China, the central content is: "Lending is a financial business, and enterprises of non-financial institutions are not allowed to lend to each other. ..... The so-called loan contract (or loan contract) concluded between enterprises violates national laws and policies and should be deemed invalid. " At present, the legal profession has no great objection to the above determination, and has not heard the news that regulation or policy should be relaxed.
However, in the newly revised Company Law (hereinafter referred to as the new Company Law) which came into effect on June 5438+ 10/2006, there are different provisions from the above. That is, item 3 of Article 149 "Directors and senior management personnel shall not commit the following acts: ……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… The result of observing the above regulations is that the company can lend its funds to others.
Of course, if "others" in this regulation only refers to "natural persons", the content of this regulation is not substantially different from relevant judicial interpretations and relevant regulations, only emphasizing that lending company funds to individuals must comply with the company's articles of association and perform the above procedures. However, in the absence of other explanations to the contrary, "others" should generally be interpreted as including natural persons, legal persons and other organizations, and the relevant judicial interpretations of the Supreme Court also hold that. Obviously, the legal concept of "others" refers not only to natural persons but also to units (legal persons and other organizations). In this case, does it mean that China's financial management policy has undergone major adjustments and changed the previous provisions on mutual direct financing between legal persons (other organizations)? Is it valid for a company (enterprise) to borrow funds without violating the third item of Article 149 of the new Company Law?
An analysis of enterprise's capital lending behavior;
According to the third item of Article 149 of the new Company Law, the directors and senior managers of the company lend the company's funds to other companies or enterprises without violating the articles of association, and with the consent of the company's shareholders' meeting, shareholders' meeting or board of directors, such fund lending behavior shall be deemed as legal and effective, and the court shall protect the legitimate rights and interests of both borrowers and lenders according to law. However, if the above-mentioned behavior of the company is explained according to the relevant judicial interpretation of the Supreme Court, it must be deemed invalid and not protected by law. In this way, the same behavior applies different legal provisions and draws completely different conclusions.
(A) the basis for determining whether the enterprise's capital lending behavior is effective
Since the enterprise's capital lending behavior is the legal behavior of both parties, that is, the contract behavior, it is natural to determine whether the contract is valid according to the provisions of the contract law. According to Article 52 of the Contract Law, a contract is invalid under any of the following circumstances: (1) one party concludes a contract by fraud or coercion, which harms the interests of the state; (2) Malicious collusion that harms the interests of the state, the collective or a third party; (3) Covering up illegal purposes in a legal form; (4) damaging the public interest; (5) Violating the mandatory provisions of laws and administrative regulations. "
The first and third items of the above-mentioned five provisions that determine the contract to be invalid are obviously inconsistent, because both parties to the enterprise fund lending contract have not resorted to fraud or coercion, and the lending of funds is nothing more than for the business needs of the company or enterprise, and it is not illegal (naturally, it is another matter to violate the criminal law). Because "lending activities between enterprises can not only prosper China's market economy, but also disrupt the normal financial order, interfere with the implementation of national credit policies and plans, weaken the state's monitoring of investment scale, and cause chaos in the economic order", corporate capital lending can be classified as harming national interests, but it is difficult to determine whether it is malicious collusion, because in practice, many people do not know that lending activities between companies are unprotected and there is no malicious collusion at all. As for the damage to the public interest, it is even more difficult to identify it, because the public interest will draw completely different conclusions from different angles; From the perspective of financial order management, capital lending can be regarded as harming the public interest. However, from a broader perspective, enterprises have borrowed funds to engage in business, thus developing and expanding, increasing social wealth, increasing employment, enriching people's material life and increasing national taxes. Fund lenders have also improved the utilization rate of idle funds, increased their income, and paid business tax according to law, which seems to be open. In this case, it is difficult to apply this provision to determine that the enterprise's fund lending behavior or contract is invalid.
Finally, only item (5) remains. If an enterprise loan contract violates the mandatory provisions of laws and administrative regulations, it is naturally invalid. However, up to now, there are no laws and administrative regulations on capital lending between non-financial enterprises, only the departmental regulations (explanations) of financial management institutions such as the People's Bank of China. However, according to Article 4 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law, after the implementation of the contract law, the people's court confirms that the contract is invalid. It should be based on the laws formulated by the National People's Congress and its Standing Committee and the administrative regulations formulated by the State Council, not on local laws and administrative regulations. Therefore, since there are no mandatory provisions of laws and administrative regulations, how can we determine that a capital loan contract is invalid?
In judicial practice, it is generally believed that the basis for the invalidity of enterprise capital loan contracts is actually only a number of judicial interpretations of the Supreme Court:
In June 1, 1990, 165438+ 10/2, the Supreme People's Court issued a notice on printing and distributing "Answers to Several Questions on Trial of Disputes over Joint Venture Contracts" (France) < 1990 >. No.27);
2.1991August 2 1 day Reply from the Supreme People's Court Economic Court on whether there is a joint venture between Liu Shuiqing and Zhongshan Plastic Products Factory (French letter) [191]/kloc-0.
3.125 March 996, the Supreme People's Court's Answer to the Question on How the People's Court Should Judge the Lender who has not obtained the agreed interest loan contract from the enterprise (Fa Fu [1996] No.2);
4.1Reply of the Supreme People's Court on how to deal with overdue loans (Fa Fu [1996]No. 15).
The basic content of the above judicial interpretation is: enterprise capital lending violates relevant financial laws and regulations and should be invalid. However, the judicial interpretation has not clearly stated whether the relevant financial regulations are laws, administrative regulations or departmental regulations. The general understanding should be the relevant provisions and administrative interpretations (mainly administrative interpretations) of financial management institutions such as the People's Bank of China. For example, the reply of China People's Bank on inter-enterprise lending (Yintiao Law [1998] 13). 1March, 998) and the official reply of the people's bank of China on legal issues related to bank employees' participation in illegal lending by enterprises (silver bar law [1996] Notice of the State Administration of Foreign Exchange on prohibiting foreign exchange lending among non-financial enterprises ((96) No.305 Huizi Zi Han,1996 65438+February 5) and so on.
The above provisions (interpretation) determine that borrowing funds belong to financial business, and non-financial institutions shall not engage in it, otherwise it will be invalid; The relevant financial laws and regulations on which it is based mainly include:
1,1995 May 10, the National People's Congress Standing Committee (NPCSC) passed and promulgated the second paragraph of Article 11 of the Law on Commercial Banks, "The establishment of commercial banks shall be examined and approved by the banking regulatory authority of the State Council. Without the approval of the the State Council Banking Regulatory Authority, no unit or individual may engage in commercial banking business such as absorbing public deposits ".
2. On July198 13, the State Council promulgated Article 2 of the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities, "All illegal financial institutions and illegal financial business activities must be banned"; Article 4 "Illegal financial business activities as mentioned in these Measures refer to the following activities without the approval of the People's Bank of China: …… (3) Illegal loan issuance, settlement, bill discount, borrowing funds, trust investment, financial leasing, financing guarantee and foreign exchange trading; ……"; Article 5 "No unit or individual may set up financial institutions or engage in financial business activities without the approval of the People's Bank of China according to law".
It can be inferred that "lending is a financial business, and non-financial institutions and individuals are not allowed to engage in it" is the premise of the argument; Therefore, as long as non-financial institutions engage in capital lending and direct financing, according to the above provisions, the signed capital lending contract (or loan contract) can be considered invalid.
(B) the legal consequences of corporate capital lending
According to the judicial interpretation of the Supreme Court, when dealing with disputes over capital lending between enterprises, the loan principal is protected by law, and the lender has the right to demand repayment from the borrower, but has no right to demand payment of interest or capital occupation fee. Interest obtained or agreed by the investor shall be charged, and the borrower shall be fined equivalent to bank interest. This is the civil legal consequence stipulated by judicial interpretation. However, in judicial practice, few judgments are handled in full accordance with the legal consequences of the above judicial interpretation; Generally speaking, after the court finds that the fund lending behavior is invalid, it often orders the return of the principal, but does not support other claims; Or mediate during the trial and close the case in the form of mediation.
(3) Opinions on the enterprise's capital lending behavior being deemed invalid.
A comprehensive analysis of the above-mentioned laws, administrative regulations, judicial interpretations and administrative rules (or interpretations) can basically sum up the logical premise that the capital lending contract is invalid: that is, capital lending is a financial business, and non-financial institutions are not allowed to engage in it; Non-financial institutions (mainly enterprises) engage in acts explicitly prohibited by law, which is naturally invalid. But the above logic is not impeccable and can withstand strict scrutiny.
First of all, if the lending business belongs to financial business and non-financial institutions and individuals are not allowed to engage in it, then the lending business between enterprises, between enterprises and individuals, and between individuals and individuals should be deemed illegal and invalid according to law. But why can a legal relationship between a non-financial institution and an individual be regarded as valid? 1991August 13, the Supreme People's Court issued and implemented "Several Opinions on People's Courts' Trial of Lending Cases" (Law (min) <1991> 2 1); 1999 February 13, the Supreme People's Court's "Reply on How to Confirm the Effectiveness of Lending between Citizens and Enterprises" (Fa Shi [1999] No.3) and other judicial interpretations clearly confirmed the effectiveness of lending between citizens and enterprises. In fact, the loan contract stipulated in the Contract Law does not completely define the loan behavior as financial business. Article 196 of the Contract Law clearly stipulates that "a loan contract is a contract in which the borrower borrows money from the lender, repays the loan at maturity and pays interest"; Moreover, it is not clearly stipulated that only financial institutions can provide loans abroad. From this point of view, it seems inappropriate to classify all capital lending (borrowing) as financial business, and it is invalid and unreasonable to infer that lending (borrowing) between enterprises is based on this.
Secondly, the "capital lending" clearly belonging to financial business in the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities promulgated by the State Council is not consistent with the "enterprise capital lending" discussed in this paper; Although the "enterprise fund lending" discussed in this paper is similar to the "illegal lending" listed in the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities, if all the external lending behaviors of non-financial institutions and individuals are characterized as financial business and "illegal lending", there are also problems, because the lending between non-financial institutions and individuals is protected by relevant judicial interpretations and there is no problem of being banned. On the premise that lending business belongs to financial business, it is inferred that capital lending between enterprises belongs to "illegal loan issuance", which lacks corresponding legal basis. Because the lending between non-financial institutions and individuals, although there is a corresponding judicial interpretation to confirm legal and effective, but there is no corresponding laws and administrative regulations as the basis.
In fact, the above judicial interpretation defines the lending business between enterprises and individuals and between individuals as private lending, which is included in the scope of legal protection. The main reason may be that this kind of lending business is generally small in scale and relatively small in amount, and its positive side is greater than its negative side to social development; As for the borrowing behavior between enterprises, it may be based on the large scale and amount of borrowing, which has a great impact on society. If ordinary enterprises are allowed to provide loans to foreign countries, it will disrupt the whole financial market and affect social stability. Therefore, at the legal and policy level, lending between non-financial institutions or enterprises has been prohibited.
Judicial interpretation of private lending
A loan contract is a contract in which the borrower borrows money from the lender, repays the loan at maturity and pays interest. The loan contract stipulated in the contract law includes two parts: one is the loan contract between financial institutions and between financial institutions and natural persons, legal persons and other organizations (the loan relationship between financial institutions is called interbank lending), and the other is the loan contract between natural persons. However, the actual lending relationship in social and economic life is more extensive than that involved in contract law, including the lending relationship between non-financial enterprises and the lending relationship between natural persons and non-financial enterprises. Item (2) of category 20 of the cause of action is only applicable to the loan relationship between non-financial enterprises. Although the law and judicial practice do not protect this lending relationship, there are a large number of such lending relationships and disputes, so it is listed as a separate cause of action. The Supreme People's Court pointed out in Article 1 of "Several Opinions on People's Courts Handling Lending Cases": "Lending disputes between citizens, between citizens and legal persons, and between citizens and other organizations should be accepted as lending cases." Therefore, according to the provisions of Article 6 of the Opinion, private lending includes not only the lending relationship between natural persons, but also the lending relationship between non-financial enterprises and natural persons, and also the illegal fund-raising relationship that is not under the jurisdiction of the court. The Contract Law stipulates that the loan relationship between natural persons is a loan contract, and the "cause of action" only follows folk customs and judicial practice. The loan dispute between natural persons and their legal persons and other organizations that are not financial institutions is called folk loan dispute.
Relevant regulations
People's Republic of China (PRC) Contract Law (Excerpt)
(1999 March 15)
Chapter XII Loan Contract
Article 196 A loan contract is a contract in which the borrower borrows money from the lender, repays the loan at maturity and pays interest.
Article 197 A loan contract shall be in written form, unless otherwise agreed between natural persons.
The contents of the loan contract include the loan type, currency, purpose, amount, interest rate, term and repayment method.
Article 198 When concluding a loan contract, the lender may require the borrower to provide a guarantee. The guarantee shall comply with the provisions of the Guarantee Law of People's Republic of China (PRC).
Article 199 When concluding a loan contract, the borrower shall, at the request of the lender, provide the true information about the business activities and financial situation related to the loan.
Article 200 The loan interest shall not be deducted from the principal in advance. If the interest is deducted from the principal in advance, the loan will be repaid according to the actual loan amount and the interest will be calculated.
Article 201 Where the lender fails to provide the loan on the agreed date and amount, thus causing losses to the borrower, it shall compensate for the losses.
If the borrower fails to collect the loan according to the agreed date and amount, it shall pay interest according to the agreed date and amount.
Article 202 Lenders may inspect and supervise the use of loans as agreed. The Borrower shall regularly provide the Lender with relevant financial and accounting statements and other materials as agreed.
Article 203 Where the borrower fails to use the loan according to the agreed purpose, the lender may stop issuing the loan, recover the loan in advance or terminate the contract.
Article 205 The borrower shall pay interest within the agreed time limit. If there is no agreement or unclear agreement on the time limit for paying interest, and it cannot be determined according to the provisions of Article 61 of this Law, if the loan period is less than one year, it shall be paid together with the loan; If the loan term is more than one year, it shall be paid at the end of each year; if the remaining term is less than one year, it shall be paid together with the loan.
Article 206 The borrower shall repay the loan within the agreed time limit. If the term of the loan is not agreed or clearly agreed, and cannot be determined according to the provisions of Article 61 of this Law, the borrower may return it at any time; The lender may urge the borrower to return it within a reasonable period of time.
Article 207 If the borrower fails to repay the loan within the agreed time limit, it shall pay the overdue interest in accordance with the agreement or the relevant provisions of the state.
Article 208th If the borrower prepays the loan, unless otherwise agreed by the parties, the interest shall be calculated according to the actual loan term.
Article 209 The borrower may apply to the lender for extension before the repayment period expires. If the lender agrees, it can be extended.
Article 210 A loan contract between natural persons shall take effect when the lender provides the loan.
Article 211 If the loan contract between natural persons does not stipulate or clearly stipulates the payment of interest, it shall be deemed as non-payment. If the loan contract between natural persons stipulates to pay interest, the loan interest rate shall not violate the relevant provisions of the state on limiting the loan interest rate.
Official Reply of the Supreme People's Court on How to Confirm the Effectiveness of Lending between Citizens and Enterprises
(1999 February 13)
Heilongjiang Provincial Higher People's Court:
Your request for instructions on how to confirm the validity of the loan contract between citizens and enterprises (Heigao Law (1998)No. 192) has been received. After study, the reply is as follows:
Lending between citizens and non-financial enterprises (hereinafter referred to as enterprises) belongs to private lending. As long as the meaning of both parties is true, it can be considered as valid. However, in any of the following circumstances, it shall be deemed invalid:
(a) enterprises illegally raise funds from employees in the name of borrowing money;
(two) enterprises illegally raise funds from the society in the name of lending;
(3) Enterprises issue loans to the public in the name of loans;
(four) other acts in violation of laws and administrative regulations.
If the loan interest rate exceeds the bank's interest rate of similar loans for four times in the same period, it shall be handled in accordance with the relevant provisions of the Opinions of the People's Court on the Trial of Loan Cases [1991] No.21.
This reply
Some opinions on the trial of loan cases by people's courts
(1991discussed and adopted at the 502nd meeting of the Supreme People's Court Judicial Committee on July 2nd)
When trying loan cases, the people's courts should follow the principles of voluntariness, mutual benefit, fairness and legality, protect the legitimate rights and interests of creditors and debtors, and limit high interest rates. According to the experience of trial practice, the following opinions are put forward for reference when trying such cases.
1. Lending disputes between citizens, between citizens and legal persons, and between citizens and other organizations shall be accepted as lending cases.
2 disputes arising from borrowing foreign currency, Taiwan dollars, treasury bills and other securities shall be accepted as loan cases.
3. If the loan-loan relationship is clear and the creditor applies for a payment order, the people's court shall examine and accept it in accordance with the relevant provisions of the Civil Procedure Law on supervision procedures.
4. When examining and prosecuting a loan case, the people's court shall require the plaintiff to provide a written iou according to Article 108 of the Civil Procedure Law; If there is no written receipt, the necessary factual basis shall be provided. A lawsuit that does not meet the above conditions shall be ruled inadmissible.
5. If the debtor's whereabouts are unknown when the creditor files a lawsuit, it shall be under the jurisdiction of the court where the debtor's original domicile or property is located. The court shall require the creditor to provide evidence to prove the existence of the loan relationship, and announce and summon the debtor to respond to the lawsuit after accepting it. After the expiration of the announcement period, if the debtor still fails to respond to the lawsuit and the loan relationship is clear, the judgment may be made by default after trial; If the loan-loan relationship cannot be ascertained, the lawsuit shall be suspended.
During the trial, if the debtor leaves, his whereabouts are unknown and the loan relationship is clear, he may make a judgment by default; If the facts are difficult to ascertain, the proceedings shall be suspended.
6. The interest rate of private lending can be appropriately higher than the bank interest rate, and the local people's courts can specifically grasp it according to the actual situation in the region, but the maximum interest rate shall not exceed four times (including interest rate) of similar bank loans. Beyond this limit, the excess interest will not be protected.
7. The lender shall not include interest in the principal to obtain high profits. If it is found during the trial that the creditor has included interest in the principal to calculate compound interest, only the principal will be returned.
8. If there is a dispute between the borrower and the borrower about whether there is an agreed interest rate and it cannot be proved, the interest can be calculated by referring to the bank's similar loan interest rate.
If there is a dispute between the borrower and the borrower over the agreed interest rate, which cannot be proved, the interest may be calculated with reference to Article 6 of this opinion.
9. The lender requires the borrower to pay overdue interest on the interest-free loans between citizens, or the interest-free loans from time to time are not repaid after being urged; If the lender demands to pay interest after being urged, the interest may be calculated with reference to the interest rate of similar loans from banks.
10. The loan relationship formed by one party in violation of its true meaning by means of fraud, coercion or taking advantage of the danger of others shall be deemed invalid. If the loan relationship is invalid due to the creditor's behavior, only the principal will be returned; If the debtor's behavior causes an invalid loan relationship, in addition to returning the principal, interest should also be paid with reference to the bank's similar loan interest rate.
1 1. The lender knows that the borrower is borrowing money for illegal activities, and its lending relationship is not protected. The illegal lending behavior of both parties can be sanctioned according to the third paragraph of Article 134 of General Principles of Civil Law and Articles 163 and 164 of Opinions on Several Issues Concerning the Implementation of General Principles of Civil Law of People's Republic of China (PRC) (for Trial Implementation) (hereinafter referred to as Opinions).
12. If there is a dispute between citizens over borrowing foreign currency or Taiwan dollars, and the lender requests repayment in the same currency, it may be allowed. If the borrower does not have the same currency, it can be repaid in RMB with reference to the local foreign exchange adjustment price at the time of repayment. If the lender requests to repay the interest, it may calculate the interest with reference to the foreign currency savings rate of China Bank at the time of repayment.
Disputes arising from borrowing foreign exchange certificates shall be handled with reference to the above principles.
13. In the loan relationship, the person who only plays the role of contact and introduction does not assume the guarantee responsibility. If there is a real intention to guarantee the performance of the debt, it shall be recognized as a guarantor and bear the guarantee responsibility.
14. If the actor issues an IOU on behalf of the borrower, and the borrower refuses to admit it, and the actor cannot prove it, the actor shall bear civil liability.
15. During the partnership operation, if an individual borrows money in the name of a partnership organization for the partnership operation, it shall be repaid by the partner * * *; If the borrower cannot prove that the loan is used for partnership operation, it shall be repaid by the borrower.
16. After the loan debt of the guarantor expires, if the debtor is solvent, the debtor shall bear the responsibility; If the debtor is unable to pay off, has insufficient solvency or the debtor's whereabouts are unknown, the guarantor shall be jointly and severally liable.
If the debtor fails to repay the debt at the expiration of the loan period, and the borrower and the lender reach an agreement on the repayment period or interest rate again without the consent of the guarantor, the guarantor will no longer bear the guarantee responsibility.
Without a guarantor, the court shall not allow the debtor to apply for a new guarantor to participate in the lawsuit.
Disputes over guarantee liability shall be handled in accordance with Articles 108, 109, 1 10 of the Opinions (for Trial Implementation).
17. When trying a loan case, the legal mortgage relationship arising from the loan relationship should be protected. In case of dispute, the dispute shall be settled in accordance with Item 2 of Article 89 of the General Principles of Civil Law and paragraphs 1 12, 1 13, 1 14 and/kloc-0 of the Opinions (for Trial Implementation) respectively.
18. If the debtor is likely to transfer, sell off or conceal the property related to this case, the court may take property preservation measures such as sealing up, distraining, freezing and ordering to provide guarantee according to the application of the parties or ex officio. If the preserved property is the means of production, the applicant shall be ordered to provide a guarantee. Property preservation should take appropriate measures according to the nature of the preserved property, minimize the impact on production and life, and avoid property losses.
19. In the case that the debtor has difficulty in paying off the loan in one lump sum, the court may decide or mediate the installment payment. Determine the amount of each payment according to the ability of both parties to pay.
20. In the execution procedure, if both parties negotiate to pay off the debt by the debtor's labor service or other means, which does not violate the law and does not harm the interests of society and others, they shall allow it and record the implementation of the settlement agreement.
2 1. If the person subjected to execution has no money to pay off the debt and requests to pay off the debt with other property, it shall be allowed with the consent of the applicant. Both parties may agree on the price or require the relevant departments to set a reasonable price and deliver the corresponding part of the property to the applicant executor according to the amount of the judgment.
If the person subjected to execution has no money to pay off his debts and requests to pay off his debts with securities such as bonds and stocks, it shall be allowed after the application of the person subjected to execution is approved; Where it is necessary to use other creditor's rights to pay off debts, it shall be agreed by the person subjected to execution, and the debtor of the person subjected to execution shall be notified to go through the corresponding creditor's rights transfer procedures.
22. If the person subjected to execution may transfer, sell off or conceal the property subjected to execution, it shall take enforcement measures in time. If the person subjected to execution resists execution, which constitutes obstruction of civil litigation, it shall be handled in accordance with Articles 102 and 227th of the Civil Procedure Law.
General Rules for Loans (Excerpt)
Article 2 The term "lender" as mentioned in these General Rules refers to a legally established Chinese-funded financial institution engaged in loan business in China.
Chapter V Lenders
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.
Company Law (Excerpt)
Article 149 Directors and senior managers shall not commit any of the following acts:
(1) Misappropriation of company funds;
(2) Opening an account for the company's funds in its own name or in the name of other individuals.
(3) Lending the company's funds to others or providing guarantee for others with the company's property without the consent of the shareholders' meeting, the shareholders' general meeting or the board of directors, in violation of the provisions of the company's articles of association;
(four) in violation of the articles of association of the company or without the consent of the shareholders' meeting or the shareholders' meeting, enter into a contract or conduct a transaction with the company;
(5) Without the consent of the shareholders' meeting or shareholders' meeting, taking advantage of his position to seek business opportunities belonging to the company for himself or others, and running the same business as the company he works for;
(six) accept the entrustment of others and regard the transaction with the company as your own;
(seven) unauthorized disclosure of company secrets;
(8) Other acts that violate the obligation of loyalty to the company.
The income of directors and senior managers who violate the provisions of the preceding paragraph shall be owned by the company.