我国《公司法》禁止财务资助的规则展开

Analysis of the Prohibition of Financial Assistance Rules in China's Company Law

禁止财务资助规则的引入是本次公司法修订中资本制度革新的重要内容之一,然而,从目前法律规定看,禁止财务资助规则与禁止抽逃出资规则的界限不甚清晰、与对赌协议裁判规则相互冲突、与股份回购规则难以兼容。为规范我国公司资本流出行为,禁止财务资助规则需要借鉴域外经验,明确财务资助行为的识别标准,为规则适用划定清晰的范畴。对新《公司法》第163条进行文义解释,可以看出财务资助行为的识别可以从经济利益检测、商业实质检测、交易目的检测出发。同时,禁止财务资助行为也应有例外,应允许通过偿债能力测试和董事信义义务双重过滤机制的财务资助行为,发挥其对资本市场的促进作用。

The introduction of the prohibition of financial assistance rule is a significant part of the capital system reform in the recent amendments to China's Company Law.However,the current legal framework presents several issues,such as the unclear boundary between prohibition on financial assistance and the capital withdrawal,conflicts with the judicial rules regarding bet-on agreements,and incompatibility with share repurchase regulations.These issues create confusion and uncertainty in the application of the law,impacting the effectiveness of the rule's implementation.One major issue is the unclear boundary between the prohibition of financial assistance and the prohibition of capital withdrawal.The latter aims to prevent shareholders from withdrawing capital in ways that could harm the company's stability,protecting creditors and the capital structure.Meanwhile,the prohibition of financial assistance targets actions that facilitate share acquisitions,which can deplete funds and increase risk.Despite these different purposes,their overlap creates confusion,complicating the distinction between acceptable and prohibited actions.The conflict also affects performance agreements,particularly those linked to equity investments.Performance agreements,often referred to as"bet-on agreements"',involve terms where investors and company founders set specific performance targets,with outcomes influencing shareholding structures-investors may gain more shares upon success or founders might need to repurchase shares upon failure.The prohibition of financial assistance may hinder these arrangements,creating uncertainties that could deter investment and slow market growth.Reconciling the prohibition of financial assistance with share repurchase regulations poses another challenge.Share repurchases help companies adjust capital structure,return excess cash,or signal confidence.However,the distinction between legal share repurchases and prohibited financial assistance is not always,as both use company resources for its own shares.This ambiguity complicates compliance risks inadvertent violations,even in legitimate repurchase.To address these issues,prohibition rule should draw on international experiences,consider the practical conditions of China's capital market,and clarify the identification standards for financial assistance.Identification of financial assistance can use economic benefit tests,commercial substance tests,and transaction purpose tests.The economic benefit test check if the company loses financial benefits,the commercial substance test assesses if the transaction has business purpose,and the transaction purpose test evaluates the true intent.A balanced approach to the prohibition should include exceptions,allowing financial assistance under controlled conditions.For instance,if a company remains solvent after the transaction,such behavior could be permited.Additionally,fiduciary duty should ensure directors act in the best interest of the company and its stakeholders when approving financial assistance,adding protection.In summary,while the prohibition of financial assistance is an essential component of China's company law,enhancing its clarity and application is necessary to ensure effective governance.A more balanced approach that includes solvency checks and fiduciary duty considerations would not only align with international standards but also support the healthy development of China's capital markets,reinforcing corporate financial stability while allowing companies to operate with greater legal certainty.