There are all kinds of risks in practice in the company's internal contracting, although the consequences are not the same, but these risks come from both inside and outside the company. The risk of "path" has an objective analysis, conducive to its "rejected". This article is mainly from the practice of several common risks to discuss, but the reality is not limited to these risks. (A) from the company's internal risk.

1. Moral hazard of contracting shareholders.

Contracting shareholders in the contracting period, holds the contracting company part of the decision-making power, personnel power, supervision and management power. When this power to lose the necessary supervision, completely for the contracting shareholders of personal interests, the inevitable abuse of power.

Transferring the company's management rights to another shareholder in general, the contracting fee is certainly, but in order to prevent the company in the contracting period to the company caused by the infringement or breach of contract, it is necessary to let the contracting shareholders to provide a certain amount of security. But how much can play the role of guarantee? The company in the operation of a large number of uncertain risks, but the contracting shareholders in the contracting period in charge of overloading the company's board of directors of the actual control, for the transfer of these risks to open the door, so the contracting shareholders to provide security does not necessarily play a role in security. In addition, the company in the actual operation of the serious insolvency, the contracting shareholders to assume limited liability, refused to undertake the contractual obligations, then it is the company or other shareholders through what way to require the contracting company to assume the responsibility for breach of contract or liability?

2. The risk of special shareholders claiming shareholders' rights.

During the period of contracting within the company, if the company's other shareholders in accordance with the provisions of Article 34 of the Company Law, requesting access to the company's accounting books, in the case of contracting shareholders do not cooperate with the contracting company how to deal with? If the shareholders to the People's Court, requesting access to the company's books of account, in the case of contracting shareholders refused to provide, the contracting company how to realize the shareholders' right to access the books of account? Because the main body of the obligation to undertake the shareholders' books is the company, not the contracting shareholders, so the shareholders do not have to bear any responsibility.

If in the company's shareholders' meeting to vote on the internal contracting, the shareholders who oppose or abstain from voting, according to the provisions of Article 35 of the Companies Act, requesting the company to distribute dividends according to the provisions of the article or the articles of association, the contracting company is how to deal with?

3. Supervisory board of dry and risk.

Contractor shareholders in the payment of contracting fees on the right to enjoy a certain degree of autonomy in the management of the supervisory board (the board) as the contracting company's supervisory body, still have to abide by the contracting company and the contracting shareholders between the agreement. Supervisors (will) of the statutory powers and functions of the contracted management contract, then, in fact, supervisors (will) can not play any role in the constraints. When the supervisors (will) exercise statutory powers, will inevitably interfere with the contracting shareholders of the business management activities, if the contracting shareholders caused economic losses, then the contracting shareholders are bound to ask the contracting company to assume the liability for breach of contract. But after the contracting company to assume liability, how to recover from the supervisors (board)?

4. The risk of the board of directors competing for power.

The board of directors, as the decision-making body of the company, enjoys the decision-making, personnel and supervisory powers as stipulated in Article 47 and Paragraph 4 of Article 109 of the Company Law. However, after the company is contracted to the shareholders to operate, the contracted shareholders enjoy most of the powers and functions almost identical to those of the board of directors. Although part of the company's business management activities are delivered to the contracting shareholders, the contracting company, as an independent legal person, still has to operate and develop itself, and then the board of directors must assume its due responsibilities. In such a power staggering place, the board of directors enjoys more favorable advantages than the contracting shareholders: First, its powers and functions of the law, can be in the scope of the law within the scope of free activities; Second, it is elected by the shareholders' meeting, there is a strong "backstage" support; Third, it is the exercise of its duties by the company to bear the consequences of the company, no worries; Fourth, it is not a contracting contract. Fourth, it is not the main body of the contract, not bound by the contract. Therefore, in the process of the company's internal contracting, if the board of directors do not make effective restrictions on the powers and functions of the board of directors, the internal contracting contract is just like a piece of white paper that can be broken at the first poke.

5. Liability risk of mixed behavior.

In the company contracting period, the contracting company's legal person independent behavior, the contracting shareholders of the management behavior, both internally and externally in the name of the contracting company, or will lead to the invalidation of certain acts. Responsibility, is an old axiomatic jurisprudence, but in the company contracting process, the contracting company's independent corporate behavior and contracting shareholders of the management of the behavior of the intertwined, either party may be adverse consequences pushed to the other side, therefore, the contracting company, both parties have for the unspecified "company behavior" to bear the risk of The possibility of.

(2) from the company's external risk

limited liability company is with a certain degree of human capital company, from the company's internal risk, can be through internal consultation, mutual compromise, the risk of these risks will be controlled to a minimum. But the issue, the contracting parties have to face is from the company's external risk, and, some risk is any party can not predict, can not control.

1. Risks from voluntary creditors.

Own creditors as a participant in the company, the company's business model has a clearer understanding of the general situation are to comply with the "rules of the game", at any time to decide to participate in or out of the "game". However, when the voluntary creditor's own interests are affected, they are likely to break the "rules of the game", the use of intra-company contracting does not affect the independence of the company's personality, choose the most favorable way to protect the realization of their claims, so that the contracting company and contracting shareholders have to be "their respective debts" to bear the "debt". The contracting company and the contracting shareholders have to bear "joint and several liability" for "their debts". What's more, the contracting shareholders and the contracting company "mixed personality" as the reason, the contracting shareholders are required to bear the real joint and several liability for their debts, the company will be contracted on the wave of internal contracting.

2. Risks from involuntary creditors.

Involuntary creditors of the company, generally do not take into account what kind of business mode the company adopts, once their rights are infringed upon, the spearhead will be directed at the company. But the company in business activities, some harmful consequences are gradual, not immediately apparent. For example, the chemical enterprise's environmental pollution infringement; mining enterprise's geological disaster infringement. Liability may occur during the contracting period, may also occur after the contracting period, especially after the payment of a large amount of compensation, how to issue and contracting parties to share?

3. Risks from infringers.

Infringement of the company's intellectual property rights and the person's trade secrets, the damage caused to the company, it is often difficult to make an accurate assessment. Therefore, how to deal with this risk? Is also a company in the contracting business, the issuance and contracting parties should pay attention to the problem.