Research On Legal Issues Of Credit Enhancement Measures In Listed Companies' Foreign Investment And Financing Behaviors

As an important part of the modern financial system,China's capital market has been playing a role in promoting financial communication and giving impetus to realize the optimization of resources allocation since its formation.In recent years,in order to maintain the order of the capital markets,effectively protect the equity of investors,prevent financial risks and rectify market mess,the China Securities Regulatory Commission has put forward the requirement of “strong supervision”.While regulating market behavior,“strong supervision” has also increased the difficulty of corporate financing to a certain extent.In addition to small and micro enterprises,listed companies have also fallen into a “financial crisis”.The new regulations on asset management and other corresponding measures have further enhanced the financing costs of listed companies,reduced the financing space,the traditional financing models such as bond issuance,targeted placement,and equity pledge have been unable to meet the funding needs of listed companies.In order to make up for the funding gap,listed companies continuously expand financing channels.Although listed companies have better asset status and credit ratings,large-scale investment and financing behaviors still depend on the listed companies to provide corresponding guarantee measures.Considering the specialexistence of listed companies as the core strength of the capital market,the market and regulatory authorities have put forward higher requirements for their investment and financing activities.On the one hand,listed companies need to consider the legal attributes of the relevant credit enhancement measures and their possible impact on the enterprise,and make proper choices;on the other hand,relevant investment and financing activities and credit enhancement measures need to disclose information in the circumstances of “significant matters” and “external guarantees” of listed companies.Considering that the current laws,regulations and regulatory authorities have not made explicit provisions on the relevant credit enhancement measures in the investment and financing activities of listed companies,the possible legal risks surrounding the investment and financing credit enhancement measures in practice are concentrated as lack of the legal characterization and disclosure guidelines of credit enhancement measures.The three main issues are as followsA.lack of legal judgment on the guarantee attributes implied by investment and financing credit enhancement measures;B.qualitative deviations in credit enhancement measures lead to anomie of information disclosure;C.maliciously evade the information disclosure obligations in foreign investment and financing activities through credit enhancement measures to achieve other purposes.As far as the first aspect is concerned,the traditional guarantee credit enhancement measures widely adopted in foreign investment and financing is generally not controversial,but the new credit enhancement measures such as“repurchase” and “balance complement” lack clear qualitative,and also different in academic and judicial practice.Taking the balance complement as an example,combined with different client needs,business arrangements and realities,the court made different rulings like guarantee guarantees,unilateral commitments and debt commitments,which also led to debates in the academic circles on the legalqualitative of balance complement.How to determine the legal attribute of credit enhancement measures is the premise for further solving the issue of information disclosure of listed companies.For this problem,we should judge the legal attribute of credit enhancement measures rational based on the original purpose of the information disclosure norm.We can analyze and demonstrate on the basis of traditional securities law,company law and guarantee law,combined with the perspective of financial law.In order to solve the troubles above-mentioned,we canA.analyze the original purpose of information disclosure from the perspective of financial law;B.quantify the burden of credit enhancement measures on business operations;C.rationally characterize credit enhancement measures through typed analysis.As far as the second aspect is concerned,as listed companies have delays in the new investment and financing credit enhancement measures at the qualitative level,subsequent information disclosure is prone to regulatory risks.The internal level of the company has not made external guarantees for credit enhancement measures that may involve the nature of guarantees,and were mistakenly incorporated credit enhancement measures into “non-disclosure matters”,or the company failed to disclose the meeting report of the shareholders' meeting,the board of directors and the board of supervisors when making foreign investment and financing measures;at the external level of the company,the credit enhancement measures for foreign investment and financing always involve subsidiaries or other related parties,which may also be associated with related transactions,and the qualitative fallacy of credit enhancement measures often leads to the inability of relevant transactions to be effectively disclosed.For this issue,the key to preventing regulatory risks is to strengthen the relationship between credit enhancement measures and external guarantees,and to reasonably link the standards of information disclosure between foreign investment and external guarantees.In order to solve the troubles mentioned above,we canA.determine the factors that may involve external guarantees in the investment and financing phase,consider the ability of external guarantees and the effectiveness of related activities from the perspective of corporate interest balance;B.clarify the matters that need to be disclosed in the case of clear external guarantees to ensure that the company's behavior complies with laws,regulations and regulatory requirements;C.examine the legitimacy of connected transactions of listed companies from a fair perspective to ensure the standardization of information disclosure.As far as the third aspect is concerned,the act of evading the information disclosure of listed companies through credit enhancement measures is often subjectively malicious,and may also lead to greater risks than the anomie of information disclosure caused by qualitative fallacy.On the one hand,external guarantees and information disclosure involving state-owned assets and foreign capital are stricter and more cumbersome,lead listed companies to choose foreign investment and financing in the name of credit enhancement measures;on the other hand,maliciously avoid information disclosure for illegal profit.The academic circles has proposed different perspectives on the governance of listed companies' illegal guarantees.Considering the uniqueness of the listed company's information disclosure norm,this paper mainly proposes the normative path from the perspective of inter-corporate governance.My conclusion to this issue is thatA.Strengthen information disclosure of enterprise,optimize business decision through proactive disclosure of information,optimization of internal delivery and refinement of internal accountability;B.Pay attention to the inside information security of listed companies,and improve the shareholders' decision-making,management mechanism and behavioral constraints to achieve the purpose of legal risk prevention.