Lead: Legal Risk Control Management Based on risk analysis and evaluation, the enterprise legal risk prevention strategy is formulated and implemented. Legal risk prevention strategy is the overall strategy for enterprises to deal with legal risks. According to the principle of hierarchical management, focusing on risk early warning and prevention, the early warning mechanism, pre-plan mechanism and remedy scheme of various risks are formulated. Adhere to the prevention and control of legal risks in advance, supplemented by remedial measures afterwards, and fully implement the responsibilities and tasks of management, departments and employees in the legal risk prevention mechanism.
With the development of China's economy, contract transaction has become the main way of communication between enterprises. Enterprises in China have entered an era of competition with enterprises in developed countries. In this context, entrepreneurs in China are facing the double test of market economy and legal concept.
Therefore, entrepreneurs in China should not only learn to dance with wolves in the market economy, but also make up the lesson of legal awareness. Market economy is legal economy. The management activities of enterprises can not be separated from the constraints of national laws. The decision-making behavior, management behavior and even daily life behavior of entrepreneurs are also inseparable from the constraints of national laws. Enterprises and entrepreneurs under the general constraints of national laws naturally face many legal risks, and entrepreneurs should have the necessary awareness and preparation. Only by fully understanding and preventing legal risks can enterprises develop steadily and healthily, and China enterprises have the opportunity to truly break into the top 500 in the world.
Three major legal risks
What are the main legal risks of enterprises? On the basis of collecting nearly 100 influential cases, the author thinks that the legal risks faced by enterprises can be mainly divided into three categories: criminal legal risks, civil legal risks and enterprise management legal risks.
Criminal legal risk refers to the risk that enterprises or entrepreneurs must face as criminal defendants who are punished by law and victims of criminal cases who suffer injuries or losses. Including "enterprises or entrepreneurs violate criminal law" and "crimes against enterprises or entrepreneurs". There are so many charges of these two legal risks that entrepreneurs naturally lack necessary preparation and preventive measures if they lack full understanding. Many entrepreneurs stand in the dock of the court and realize that their actions constitute a crime, which shows how poor their knowledge and understanding of criminal legal risks are.
Among them, the unit crime constituted by enterprises is a new content after the criminal law was revised at the Fifth Session of the Eighth National People's Congress on March 1997. Many entrepreneurs are still quite unfamiliar with this, and even don't realize that it may constitute a crime for the benefit of the unit.
The so-called unit crime refers to the behavior that companies, enterprises, institutions, organs and groups seek illegal interests for their own units, which is decided by the unit collectively or implemented by the person in charge of the unit in the name of the unit. There are more than 120 unit crimes stipulated in China's criminal law, and most of these crimes are closely related to the production and operation of enterprises. Among them, the most common crimes are as follows: the crime of falsely reporting registered capital; Crime of ordinary goods and articles; Crime of illegally absorbing public deposits; Letter of credit fraud; Crime of tax evasion; Crime of illegal mining; Contract fraud and so on.
Civil legal risk refers to the risk that entrepreneurs face in contract transactions, marriage and family and civil litigation, which makes themselves or their enterprises suffer economic losses. Entrepreneurs face a wide range of civil legal risks. This kind of legal risk exists not only in the production and operation of enterprises, but also in the marriage and family of entrepreneurs. Only when entrepreneurs fully understand and guard against this can enterprises be unaffected or as little as possible, thus maintaining steady development.
The legal risk of enterprise management refers to the risk that entrepreneurs will be punished or harm the interests of enterprises by failing to implement or violating the relevant laws and regulations of the state in their business management activities.
The legal risk of enterprise management includes not only the risk of administrative punishment, but also the corresponding criminal legal risk. Sometimes, even if administrative punishment is avoided, when the impact is significant and the circumstances are bad, it is entirely possible to rise to criminal legal risks. No matter what kind of legal risk, it is closely related to the economic interests of enterprises and even to the personal freedom of entrepreneurs. Entrepreneurs must fully guard against these legal risks if they want to make their enterprises bigger and stronger and achieve good economic benefits.
How to prevent legal risks
First of all, we should improve the legal awareness of entrepreneurs.
Due to the lack of legal tradition in China's history, since the reform and opening up, the legal construction in China has been gradually improved. It's only been more than 20 years now, and it's only been 10 years since China entered the market economy system. Therefore, it is impossible for entrepreneurs in China to inherit and learn the necessary legal knowledge and experience from their parents and predecessors, and their legal awareness is generally low. It is also difficult to use legal thinking to make judgments and decisions within the scope of the legal system in enterprise management to deal with possible legal risks.
Many entrepreneurs in China like to act arbitrarily, do things by themselves, and don't consider legal issues before making decisions, which is often in obvious contrast with the bosses of Hongkong, Taiwan Province Province and foreign-funded enterprises. For entrepreneurs who have grown up in the legal and social environment, before making any major decisions, they often consult or seek the opinions of lawyers, and even some problems that are not a problem at all in the eyes of domestic entrepreneurs, they will also carefully consult whether there are legal problems.
Many domestic entrepreneurs often only pay attention to litigation and neglect the work of preventing legal risks in daily decision-making, which is obviously putting the cart before the horse. Litigation not only consumes a lot of time, energy and economic costs, but also bears litigation risks such as whether the evidence is sufficient, whether the judge can make a fair judgment and whether the judgment can be effectively executed. The cost of preventing legal risks in advance is often less than tens or even hundreds of percent of litigation.
Entrepreneurs should strive to improve their legal awareness, learn to prevent legal risks in advance, and nip in the bud, so as to get twice the result with half the effort.
Secondly, to prevent legal risks of enterprises, it is necessary to establish and improve the working institutions of corporate legal affairs and give full play to the role of corporate legal personnel.
Because the history of legal system construction in China is still short, China enterprises lack the tradition and experience of setting up enterprise legal affairs institutions. Many enterprises have not set up corporate legal institutions at all, and some have, but they have not paid due attention to them. Many corporate legal staff often don't get the opportunity to have an equal dialogue with senior corporate leaders, so their role is still limited, which also makes it difficult for corporate legal institutions to attract and retain senior legal talents.
Although enterprise legal affairs are not an essential link for enterprises to maintain daily production and operation management, they run through the whole production and operation management activities of enterprises. Strictly speaking, enterprise legal management should not be a department within the enterprise, but should be an auxiliary organization and think tank of the decision-making level and leadership of the enterprise, and its status should be higher than that of the comprehensive department of the enterprise. Only in this way can the enterprise legal affairs office attract enough excellent legal talents and play its due role to help enterprises guard against various possible legal risks.
Although some enterprises have set up corporate legal offices, they are excluded from the decision-making level and leadership of enterprises. Therefore, the corporate legal office can only be reduced to a "clean-up" department. No matter which department is in trouble, it is pushed to the legal department to solve it. This will not only help prevent the legal risks of enterprises, but also encourage other departments to be irresponsible, create troubles, and even violate the law and discipline to some extent. In this way, the' original intention' of setting up an enterprise legal affairs office cannot be achieved.
At present, many world-renowned enterprises such as Fortune 500 have invested in China, but why do we seldom see the managers of these enterprises go to jail because of crimes, or the enterprises close down because of legal risks? It should be said that this is inseparable from the fact that these world-renowned enterprises have perfect legal affairs working institutions and give full play to their functions.
Among the multinational companies in China, we have only heard that entrepreneurs died of karoshi, but we rarely heard that any entrepreneur was jailed for illegal and criminal acts, and we rarely saw that multinational companies investing in China closed down because of legal risks, while entrepreneurs in China were repeatedly jailed for illegal and criminal acts, and private enterprises in China also closed down one after another because of legal risks, which is worth pondering.
Enterprises should not only set up their own internal legal affairs working institutions, but also hire professional lawyers as legal advisers of enterprises. With the experience and knowledge of professional lawyers, some high-end and important legal problems of enterprises can often be solved. Small and medium-sized enterprises that have not yet established an internal legal affairs work structure should apply for professional lawyers suitable for their own enterprises and provide necessary legal assistance at any time. Sometimes, what a lawyer says casually is even better than the entrepreneur's own months of hard thinking; A lawyer's legal advice is even better than working hard for months for himself and all his employees. Many times, the lawyer's words are "a golden word", which is totally worth it.
Attach importance to learning and training.
Entrepreneurs must first learn some necessary legal knowledge.
For entrepreneurs, it is not necessary to learn and master those specific legal concepts and regulations in great detail. They only need to know what problems and situations may involve legal issues. As the first generation of entrepreneurs in China, they can't inherit and impart these awareness from the previous generation, but only rely on their own learning and perception.
Entrepreneurs should at least understand some basic legal concepts, such as * * * accomplice, unit crime, principal offender, accessory, criminal, civil, fraud, obviously unfair, force majeure, management without cause, unjust enrichment, subrogation, cancellation right, deposit, right of set-off, right of defense, escrow, legal person, mortgage right, pledge right, lien, limitation of action, etc. Many of these legal concepts of evidence are new legal terms in laws promulgated in China since 1980s. Entrepreneurs can't get knowledge about these concepts from their predecessors, and these concepts are often closely related to many problems in business operation and personal life, so they are all concepts that qualified entrepreneurs can't ignore. If you don't even understand some basic civil concepts, how can entrepreneurs grasp and use them freely in enterprise decision-making? !
Secondly, entrepreneurs should pay attention to internal training.
According to the person in charge of an overseas law firm, this kind of legal training is very important and comprehensive in multinational companies. Entrepreneurs should not only hire legal department personnel or external legal experts to provide legal training for their senior managers and tell them how to deal with problems, but also provide necessary legal training for all employees. Especially for overseas listed companies, senior managers must receive comprehensive legal training.
In China, we see that many enterprises attach great importance to the training of managers and employees, but mainly focus on marketing, production management, human resource management, financial management and so on, and rarely carry out legal training. In particular, the legal training of senior managers in enterprises is seriously inadequate. Therefore, it is not surprising that enterprises have various criminal offences or other legal risks from time to time. Entrepreneurs should conscientiously sum up the experiences and lessons of those entrepreneurs who unfortunately violate the criminal law, remind themselves at all times, let the alarm ring, and let themselves and enterprises always walk on the track of the legal system.
As the saying goes, "whoever is near Zhu Zhechi is black". When entrepreneurs succeed, many people will turn around them uninvited. If entrepreneurs don't distinguish between black and white, gather too many social idlers around them and trust and reuse them, then they may unconsciously become "social bosses" like Liu Yong and Chen Yifeng, and eventually collapse together with their own enterprises, which is inevitable. Therefore, the more successful entrepreneurs are, the more they should consciously "plant" some legal professionals around them and listen to their professional opinions at any time, so as not to violate the law and discipline and ensure that the enterprise always runs on a legal track. If so, enterprises will become bigger and stronger, and even enter the world's top 500, and there will be real hope.
Entrepreneurs have many risks, but legal risks are not only the most, but also often the most deadly. There is an idiom in China, "It's never too late to mend". For entrepreneurs, this idiom can also be used for reference if it only involves economic disputes. But if you are suspected of a criminal offence, there is no remedy.
If entrepreneurs in China can fully realize the legal risks in the process of business operation, management and development, and take necessary preventive measures as soon as possible, then we believe that there will be fewer and fewer "richest man" tragedies like Mou and Yang Bin, and enterprises in China will continue to grow and develop.
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