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Regulation and Improvement of China 's listed companies related guarantees legal

Author: ZhaoYuZuo
Tutor: XieWeiHua
School: Yunnan University of Finance
Course: Economic Law
Keywords: Listed Companies Associated Enterprises Associated Guarantees Legal management methods Suggestions for Improvement
CLC: D922.291.91
Type: Master's thesis
Year: 2011
Downloads: 57
Quote: 0
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Abstract


Nowadays, with the enterprises’business scale were gradually expanded, the enterprises need the bank financing frequently during their management process, but the bank need to control its credit risk, so it have to request the enterprises to provide guarantees, and this are enormously promoted the development of the enterprises’guarantee. The enterprises provide guarantees for their own debts or for the third person’s debts have become its normal economic life, and guarantees are also become the essential item to protect the transactions safety. For their financing needs, the enterprises provide guarantees for their own debts will bring them potential management avail, this behavior that makes the enterprises to bear their own risks, it is justness. However, most time the enterprises are blocked because of the restriction under themselves condition, they have no enough assets to set hypothecate for the debts, and then these enterprises will request their associated enterprises to provide guarantees for their debts. Those enterprises which provide mutual guarantees can win themselves some commercial advantages or convenience, but it will also bring them the potential risks of repay the debt that they guaranteed.The limited liability of companies’shareholders makes the company become the best form of the enterprises that to take guarantees. However because of the listed companies often have strong assets, higher levels of social credit, clear information, so thy often become the high-quality sponsor whom the bank takes pleasure in accept, thus the listed companies are become the most commonly guarantor. However, because the lost of the market supervision and from the way of associated guarantee to transfer company assets are obscured, so some major shareholders or management often use this method to embezzlement the interests of the companies, especially the interests of the minority shareholders. In recent years, illegal or malicious associated guarantees always been found in the listed companies of China, even some huge guarantees bring the companies into a finance predicament, even make them bankruptcy.Because of the associated guarantees of the listed companies requires the legal response, China had added relevant legal provisions in many laws when legislation and revision. At the same time, China Securities Regulatory Commission (CSRC) had established special provisions several times to regulate this behavior. However, because the quantity of the terms is so large, these related laws and provisions seemed intricate, and even some terms make different introduction for one key definition. Although the forms provides that those who have this behavior will take the corresponding legal responsibilities, but how to take and to take what responsibilities are not clearly defined in these forms. In addition, since the systems of mandatory disclosure are imperfect, the CSRC are unable to penetrate into the listed companies to management and supervision their voting procedures. So the CSRC has not achieve the effect of preventing illegal guarantees, only in the case that the cases have been discovered, the CSRC can punish those companies which provide illegal guarantees.To solve these problems, this paper analysis the features, types and Causes of the associated guarantees and compared with the shortcomings of the current legal system, then it give suggestions. First, improve the internal supervision of voting procedures, the information disclosure system and the corresponding supervision measures of the securities market. Secondly, establish the Credit Management System and the Credit Risk Audit System in the banking sector. Finally, give corresponding punishment to the subject of liabilities.

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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