我國《公司法》禁止財務資助的規則展開

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

禁止財務資助規則的引入是本次公司法修訂中資本制度革新的重要內容之一，然而，從目前法律規定看，禁止財務資助規則與禁止抽逃出資規則的界限不甚清晰、與對賭協議裁判規則相互衝突、與股份回購規則難以兼容。為規範我國公司資本流出行為，禁止財務資助規則需要借鑒域外經驗，明確財務資助行為的識別標準，為規則適用劃定清晰的範疇。對新《公司法》第163條進行文義解釋，可以看出財務資助行為的識別可以從經濟利益檢測、商業實質檢測、交易目的檢測出發。同時，禁止財務資助行為也應有例外，應允許通過償債能力測試和董事信義義務雙重過濾機制的財務資助行為，發揮其對資本市場的促進作用。

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 permitted. 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.