Legal analysis:

When an enterprise owes a bank loan, the legal representative generally does not need to bear the responsibility. Unless the legal representative maliciously defaults on the bank loan, the fictitious facts exercise civil rights on behalf of the legal person, and that person shall be responsible. The company has an independent personality, so it independently undertakes civil obligations. The legal representative of the company shall not bear criminal responsibility for the debt bank loan of the enterprise. The behavior of arrears is a civil liability and does not involve criminal law, so it will not bear criminal responsibility. However, if it is because the shareholders of a statutory company can ask the legal representative to bear tort liability, which constitutes a crime, criminal responsibility shall be investigated. If the company goes bankrupt and cannot repay the bank debt, it will be repaid by the company liquidator. If the company's interests are damaged during this period, it will be repaid together.

Legal basis:

The person in charge of People's Republic of China (PRC) engages in civil activities on behalf of the legal person in accordance with the law or the articles of association of the legal person, and is the legal representative of the legal person.

The legal consequences of the legal representative's civil activities in the name of a legal person shall be borne by the legal person. Restricted by the articles of association of the legal person or the law, it shall not confront the bona fide counterpart.

China is an enterprise legal person, with independent legal person property and legal person property rights. The company is liable for its debts with all its property.

Shareholders of a limited liability company shall be liable to the company to the extent of their subscribed capital contribution; The share limit of a joint stock limited company shall be the responsibility of the company.

Derivative problem:

What responsibility does the company have to the bank loan shareholders?

1. If the enterprise is a limited company, the shareholders shall bear limited liability with their capital contribution. Shareholders shall not be liable for all their capital contributions in accordance with the shareholders' agreement.

The proportion of investment, that is, it must be in place as required.

2. If the enterprise is a partnership, then the shareholders need to bear the repayment. Article 2 stipulates that a general partnership consists of general partners. What is the debt ratio of partners to the partnership? Once the debts of the enterprise cannot be repaid, the partners shall bear unlimited liability for compensation.

3. If the loan is made in the name of an enterprise, the lending institution will increase the legal person or shareholder as the guarantor. If a shareholder makes a guarantee in the process of enterprise loan, he must bear the guarantee responsibility. If the enterprise can't repay the loan normally, it will be guaranteed.

Second, what responsibility does the company bear if it fails to repay its debts?

According to the Company Law of our country, the legal representative of a company shall bear corresponding civil liabilities for relevant civil acts carried out on behalf of the company. The legal person of a limited company shall bear unlimited external liabilities, that is, the legal person must bear external debts with all its property.

The company independently undertakes civil obligations, and the legal representative of the company is not responsible for the debts of the enterprise. However, due to the intentional or gross negligence of the legal representative, the shareholders of the company may require the legal representative to bear tort liability, and if the case constitutes a crime, criminal responsibility shall be investigated according to law.

Article 36 of the General Principles of the Civil Law: A legal person is an organization that has the capacity for civil rights and conduct, enjoys civil rights and undertakes civil obligations independently according to law.

The legal person's capacity for civil rights and civil conduct arises when the legal person is established and disappears when the legal person is terminated.

Article 49 If an enterprise as a legal person is under any of the following circumstances, in addition to investigating the legal person's liability, it may impose administrative sanctions and fines on its legal representative, and if the case constitutes a crime, it shall be investigated for criminal responsibility according to law:

1, engaging in illegal business beyond the business scope approved and registered by the registration authority;

2. Concealing the truth from the registration authority or the tax authority or practicing fraud;

3. Withdrawing funds or hiding property to avoid debts;

4. Disposing of property without authorization after dissolution, cancellation or bankruptcy;

5. Failing to apply for registration and announcement in time at the time of change or termination, causing great losses to the interested parties;

6, engaged in other activities prohibited by law, damage the national interests or social public interests.

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Conditions for the establishment of a legal person

According to Article 37 of the General Principles of the Civil Law, a legal person shall meet the following conditions:

1, established according to law

(1) The establishment of a legal person organization must comply with the provisions of the law, including its organizational structure, mode of establishment, business scope and mode.

For example, according to China's Tobacco Monopoly Regulations, tobacco is monopolized by the state, and non-state monopoly institutions may not set up legal persons engaged in tobacco business.

(2) The examination and registration procedures for the establishment of a legal person must comply with the provisions of the law.

According to the Regulations on the Administration of Foundations, the establishment of a foundation must be reported to the People's Bank of China for examination and approval by the department under its centralized management, registered with the civil affairs department and issued with a license before it can obtain the legal person status.

2. Necessary property or funds.

The possession of necessary property or funds by a legal person is the material basis for its activities and development, and it is also the premise and guarantee for its civil liability. The so-called necessary property or funds, generally speaking, "property" is a requirement for enterprise legal persons and "funds" is a requirement for non-enterprise legal persons.

According to the law, an enterprise as a legal person must have a statutory minimum property limit.

Example: Article 24 of China's Law on Certified Public Accountants stipulates that an accounting firm may be a legal person with limited liability, but it must have a registered capital of not less than 300,000 yuan. The minimum registered capital of a joint stock limited company is RMB 654.38+million (Paragraph 2 of Article 78 of the Company Law).

For non-enterprise legal persons, their funds mainly come from the state financial allocation. Because they are not for profit, the law does not stipulate the specific amount of funds they should have.

3. Have its own name, organization and place.

The name of a legal person is a sign of its independent personality, and it is also a sign that it is different from different legal persons. The name right of a legal person is a kind of property right, which can be transferred or sold in addition to exclusive rights.

The organization of a legal person is the general name of organizations that manage the affairs of a legal person internally and conduct civil activities on behalf of a legal person externally, including branches of a legal person. Different types of legal persons have different organizational structures. The organization of legal person usually includes decision-making body, executive body and supervision body.

For example, the organizational structure of a joint stock limited company includes: the decision-making body-the shareholders' meeting; Executive agency-board of directors; Regulator-Board of Supervisors.

The place of legal person refers to the place where legal person engages in production and business activities. A legal person must have its own place, which is the basic condition for a legal person to engage in commercial and civil activities.

The location of a legal person is different from the domicile of a legal person. There can only be one domicile of a legal person, but there can be more than one. For example, the location of a branch also belongs to the location of the legal person. Article 39 of China's General Principles of Civil Law stipulates: "A legal person takes the place where its main office is located as its domicile."

Third, if the corporate loan is not repaid, will the legal person go to jail?

The company's debts are not civil, and the legal representative of the company will generally not go to jail. If the company cannot repay its debts, creditors may apply for bankruptcy liquidation of the company. Paragraph 2 of Article 7 of the Enterprise Bankruptcy Law of the People's Republic of China stipulates that if the debtor fails to pay off the debts due, the creditor may apply to the people's court for reorganization or bankruptcy liquidation of the debtor. Article 8 stipulates that when filing a bankruptcy application with the people's court, the bankruptcy application and relevant evidence shall be submitted. The bankruptcy application shall specify the following items: (1) Basic information of the applicant and the respondent; (2) the purpose of the application; (three) the facts and reasons for the application; (four) other matters that the people think should be explained. Where the debtor files an application, it shall also submit to the people's court a statement of property status, a list of debts, a list of creditor's rights, relevant financial and accounting reports, employee placement plans, employee salaries and payment of social insurance premiums. According to Article 7 of the Enterprise Bankruptcy Law of the People's Republic of China, the debtor may apply to the people's court for reorganization, reconciliation or bankruptcy liquidation under the circumstances specified in Article 2 of this law. If the debtor is unable to pay off the debts due, the creditor may apply to the people's court for reorganization or bankruptcy liquidation of the debtor. If an enterprise as a legal person has been dissolved but has not been liquidated or its assets are insufficient to pay off its debts, the person liable for liquidation according to law shall apply to the people's court for bankruptcy liquidation.