企业境外投资的责任风险及其管控机制

The Liability Risk and Its Controlling Mechanism of Outbound Investment from Chinese Enterprises

企业境外投资所面临的责任风险系指因违反或不符相关法律规定的不当行为而导致投资项目失败的后果责任承担,包括投资决策失误、经营管理不善、未履行风险管控责任、违反应承担的社会责任等而产生不利后果所承担的责任风险。投资风险与责任风险有一定因果关系,应明确风险的归属及责任承担的主体。责任承担是风险归属的法律后果,企业的责任风险也表现为企业合规管理的风险,因为合规必须以合法为基础。境外投资风险类型及其规制涉及以下方面:外来风险,如信用风险、市场风险与法律风险;自身风险,即经营风险与管理风险;风险防控的法律规制,系指企业风险管理与政府监管机制。因此,境外投资的责任风险及其管控机制涉及风险评估管理、投资合规监管、责任风险承担等方面。

Liability risk faced by Chinese enterprises in their outbound investment refers to undue conducts resulting to loss of investment projects and undertaking the liability,which includes liability undertaking for mistakes of investment decision,bad management of operation,failing to control such risk,and breach of social responsibility.This article holds that there is causual relation betweem investment risk and liability risk,and a need of clarifying affiliation of the liability and the subject party undertaking liability.So undertaking liability is the legal consequence of affliation of risk,and liability risk of enterprises is also reflected as risk of compliance management,since compliance management is based on compliance of law,The types of outbound investment risk and its mechanism include three aspects,the first one is outside risk such as credit risk,market risk and legal risk,the second one is inside risk such as operation risk and management risk,and the third one is legal regulation of risk control,which consists of risk management of enterprises and supervision mechanism of the Government.Therefore,liability risk of outbound investment and its management or controlling mechanism refer to aspects of risk evaluation management,investment compliance supervision and liability risk undertaking.