Article 115 of the Company Law: A company may not provide loans to directors, supervisors or senior managers directly or through subsidiaries. The Company Law does not prohibit the provision of loans to legal representatives. For example, the company's articles of association do not prohibit legal representatives from borrowing money, and they can borrow money from the company by performing certain internal procedures. There must be a legitimate reason (related to the company's operation) and return it in time.

If the legal representative is a shareholder of the company who has not repaid the loan for a long time, the shareholder shall go through legal procedures with the consent of all shareholders on the premise of not violating the articles of association. Shareholders should sign a loan agreement with the company, fulfill the rights and obligations of the borrower in accordance with the law, and repay the principal and interest on schedule.

What is the self-use nature of the legal representative of the company after borrowing in the name of the company? Lawyer Xing Xin answered: It is an act that violates the criminal law and constitutes the crime of misappropriating funds. Article 272 of the Criminal Law stipulates that any employee of a company, enterprise or other unit who, by taking advantage of his position, misappropriates the funds of his unit for personal use or lends them to others, and the amount has not been paid back for more than three months, or although it has not exceeded three months, the amount is large, and he is engaged in profit-making activities or illegal activities, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever misappropriates the funds of his own unit in a huge amount, or fails to return the funds in a large amount, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

The capital contribution certificate issued by a limited liability company to shareholders shall be sealed by the company; When a company issues physical bonds, it shall be signed by the legal representative and sealed by the company. In other words, under normal circumstances, affixing the company seal is not a necessary condition for the relevant legal documents of the company to take effect. Only when the law makes special mandatory provisions, can a document without the company seal be deemed to have no legal effect.

Therefore, for private lending contracts, if it is clearly stated in the contract that the borrower is an enterprise and there is no evidence to prove that the actual purpose of the loan is the personal legal representative, even if the contract is signed by the legal representative without the company's seal, it should usually be considered that the company rather than the personal legal representative is the party to the lending contract.

China's "Company Law" clearly points out that a legal person can't borrow money from the relevant personnel of the company in any form and under any pretext. No matter what purpose it is used for, once the loan is generated, there will be great risks, and this kind of risk is unpredictable and the loss will be huge and irreparable. If a legal person occupies company resources or funds, it constitutes a crime and will be severely punished.

legal ground

Company Law of the People's Republic of China

Article 13 The legal representative of a company shall be the chairman, executive director or manager in accordance with the articles of association, and shall be registered according to law. Where the legal representative of the company changes, it shall go through the registration of change.

Article 115 A company may not provide loans to directors, supervisors or senior managers directly or through subsidiaries.