In recent years, with the rapid development of the economy, small and medium-sized enterprises have a broader market stage, at the same time, it also means that they will face greater challenges and risks, and legal risks are one of their main risks.
How to regulate foreign economic behavior, improve economic efficiency, and prevent unnecessary losses? Strengthening legal risk prevention is the top priority in the development process of small and medium-sized enterprises.
So what legal risks do enterprises face in their foreign operations? What precautions should be taken?
01. Sign the contract
1. Carefully select the counterparty, have a trusting attitude towards long-term cooperation, if it is the first time to do business and involve a large amount of money, it is recommended to understand the credibility and performance ability of the other party, including inquiring about the registration situation of the industrial and commercial department, understanding the situation of the other party's company on the ground, and inquiring about the litigation situation on the "China Judgment Documents Network".
In practice, there are more disputes caused by trust or face contempt for contract formation, and it is recommended not to take the form of oral contracts, especially more important business, except for business with smaller subject matter or immediate performance, all written contracts are concluded.
It is best to conclude a contract by yourself, if for any reason it is really necessary to entrust others to conclude a contract on your behalf, it is recommended that you indicate the scope of authorization in the power of attorney, and similarly, when signing a contract with the agent of the other party, you must also carefully review its agency authority and identity.
2. Standard terms are more common in some business, although the law stipulates the situation in which the understanding of the standard terms is disputed, but due to the principle of comparison, in practice it is still necessary to judge according to the specific content, it is recommended to pay attention to the standard terms designed by the contract provider, carefully read, carefully study and require the other party to make explanations, so as to avoid negating the validity of the standard terms through judicial procedures after signing.
3. In some contracts, there are blank underlined clauses, and in practice, there are only concerns about the main clauses and ignore these clauses, and the dispute is caused by unilateral filling, it is recommended that the useful clauses be completed, and the useless clauses are marked "no content" or the dashes are invalidated.
4. In some contracts, the main terms involving the rights and obligations of both parties are not clear, and in practice, disputes caused by unclear agreements are more common, such as products without quality standards such as coal agreed to be "quality qualified", and performance is agreed to be "delivery of relevant materials" and "handling relevant procedures", etc., all of which are unclear, and it is recommended to be clear when concluding a contract, so as to exercise rights in accordance with the law when the other party does not perform properly.
5. The contract is generally based on the signature and seal of all parties as a condition for establishment, in practice, there are more disputes caused by the signing and sealing of the place where the payment is made, and it is recommended to clarify whether the signature and seal are a single act contract or must be established at the same time, and it is recommended to indicate the signing time, and if necessary, stamp the seal on multiple pages.
6. Under normal circumstances, the contract should be held by the signatory party one or more copies each, in practice, there is a situation where one party to the contract indicates that it does not hold the contract, it is recommended to clarify the total number of contracts and the number of copies held by each party in the contract, and hold it in strict accordance with the agreement, and at the same time pay attention not to hand over the contract after signing and sealing to the other party to take it back to sign and seal.
7, the validity or invalidity of the contract refers to whether the contract has legal effect, belongs to the legal judgment, the "effective" conditions indicated between the parties in the contract does not mean that the contract is of course valid, there are a large number of disputes over the validity of the contract in practice, the current judicial principle is to encourage market transactions, do not touch the bottom line of invalidity are valid, it is recommended to pay attention to whether the content of the contract involves franchising, whether it is harmful to the public interest, do not sign the contract in the name of the internal institution, and must not take fraudulent coercive means.
8, in the process of operating the business is inevitably needed to provide a certain guarantee from the other party, the common way of guarantee is guarantee, mortgage, pledge, lien, etc., in practice, there are many disputes caused by guarantee issues, involving many situations, if you choose to guarantee the guarantee, you should avoid using the expression "responsible for solving" and "responsible for coordination", it is recommended that the guarantor clearly state in the contract that the guarantor provides a guarantee guarantee for the performance of the debt, if the guarantor is required to jointly bear the repayment responsibility, it is recommended to indicate the words "joint and several guarantee", At the same time, it is recommended to indicate the start and end time of the guarantee liability.
9. Where mortgage security is provided with collateral, in practice, there are many disputes caused by non-registration, and it is recommended to go to the relevant registration authority to go through the mortgage registration formalities at the same time as signing the mortgage contract or immediately after signing the contract, and only the mortgage contract without registration procedures will not be judged by the court to enjoy the right of priority to be reimbursed, and it is also recommended to sign a default clause in the mortgage contract for delaying or refusing to assist in the mortgage registration procedures, or agree to bear joint and several repayment liabilities.
10. Where the other party provides a pledge guarantee, it is recommended to clarify the ownership of the pledged property, as well as the brand, specification, model, etc., and complete the handover procedures of the pledge security or the certificate of rights with the pledgee, and if it is necessary to register the pledge, it must be registered as a pledge in a timely manner.
11. The exercise of creditor's rights in the form of retention must comply with the provisions of the law, and only applies to the objects in possession according to the agreement in the case of the custody contract, the transportation contract, the processing contract, etc. It is recommended that the right of retention be clearly stipulated in the contract, and the lien should be properly kept after the situation that the right of retention can be exercised, and other items of the debtor should not be seized at will, otherwise the liability for compensation should be borne.
12. Disputes are inevitable in the course of enterprise operation, the choice of dispute resolution institution when concluding the contract can reduce the time and cost of dispute resolution, in practice, there are more disputes that occur due to the unclear place of dispute resolution or institution, and the jurisdictional objection is in the judicial procedure, it is recommended to clearly stipulate the jurisdictional jurisdiction of the dispute or choose a clear arbitration institution in the contract, reducing the possibility of the other party raising jurisdiction objections with unclear agreement.
02. Performance of the contract
13, integrity is the foundation of the long-term development of enterprises, is the basis of the entrepreneur, after the conclusion of the contract all parties have the obligation to strictly follow the agreement, fully perform the contract, it is recommended not to easily use changes in market conditions, the expected benefits can not be realized as the reason for the breach of contract, if there is indeed a force majeure or change of circumstances provided by law, continue to perform will seriously damage their own interests, you can submit a request to the people's court to exempt the breach of contract liability or terminate the contract according to law.
14. The information that occurs in the process of contract performance is the evidence of the bookkeeping of the party, the voucher of the settlement of the two parties and even the evidence of disputes in the future, in practice, there are many disputes that occur due to the lack of attention to the preservation of the data, it is recommended that in the process of contract performance, pay attention to the written confirmation of the main performance of the contract, and properly keep the information proving the performance of the obligation, so as to avoid the occurrence of "verbal arguments without evidence" in the litigation.
15, payment is the main content of the vast majority of commercial contracts, in practice due to the payment method and use of the dispute caused by more, it is recommended in addition to the small amount of transactions can use cash settlement, as far as possible according to the national financial management requirements through the bank settlement, and clearly marked the purpose of the money, if it is really necessary to use other people's account to receive payment, should be confirmed by both parties or noted on the voucher.
16, the quality problem is a common core problem in the sales contract, in practice, there is a situation that the buyer has not yet paid, so it does not raise the quality objection in time, but waits for the seller to claim the price before the quality problem is raised, it is recommended that the buyer accept the goods in time, and if it is found that it does not meet the quality agreement, it should be immediately proposed and negotiated to solve, so as to avoid exceeding the quality objection period, or because of the "make-up first use" and the quality reason cannot be determined.
17. In the process of negotiation and performance of contracts, enterprises often inevitably come into contact with the commercial information of trading partners and even trade secrets, and leakage due to negligence will lead to disputes, it is recommended to improve the awareness of protecting trade secrets, and must not disclose or use this information after consultation, contracting, performance and even after performance, otherwise it may bear corresponding legal responsibilities.
18. Contracts with a long performance process or contracts with a large number of transactions may have two parties holding each other's opinions on whether the performance is appropriate and other issues and shelving the contract, in practice there are disputes over how to deal with the losses that continue to arise and who will bear it, it is recommended that this situation take timely measures to prevent the expansion of losses, even if it is believed that the other party is in breach of contract and the other party has not breached the contract, it cannot be ignored because of its own "reasoning", if it can be derogated and allowed, the court will not protect the expanded loss.
19. The limitation period is the legal protection period for creditors to claim rights against the debtor, the people's court does not protect them when claiming rights beyond the limitation period, the limitation period for requesting protection of civil rights to the court is generally three years, creditors generally do not appear to exceed the limitation period to claim rights, and the disputes about the limitation of actions that exist in practice are mostly because creditors do not pay attention to the way to claim rights, and it is recommended that creditors improve their awareness of evidence. Claim rights against the debtor in a manner that can clearly record the content of the collection and pay attention to retaining evidence of collection, avoiding the situation where collection is only collected by telephone or other oral means, and the other party denies it during litigation.
03. Dispute Resolution
20. Facts have proved that among the various ways to resolve economic disputes, what can really be done is self-reconciliation, which can solve problems, retain friendship, save costs, shorten time, and it is recommended that you try to choose chamber of commerce mediation, industry mediation and other ways to resolve disputes, and take litigation as the final method.
21. Although civil litigation has authority and enforceability, compared with mediation, there are shortcomings such as many procedures, high costs and long cycles, which are the natural attributes of judicial procedures. Once involved in litigation, it is recommended that everyone correct their mentality, trust the law, trust the judges, and exercise their rights in accordance with the procedures prescribed by law.
22. Arbitration has the characteristics of professionalism, flexibility, confidentiality, speed, economy, independence and finality, it is recommended that when signing a contract, arbitration can be used as a way to deal with disputes, if the arbitration clause is forgotten in the contract, signing a separate arbitration agreement can also achieve the purpose of submitting for arbitration.
23, law is a social science, the law is a technology, many entrepreneurs often only pay attention to the commercial profit point, do not pay attention to the legal risk point, it is recommended to consult legal professionals in all important aspects of business activities, especially in litigation, uphold the correct litigation strategy, design reasonable litigation claims, exercise litigation rights according to law, can avoid multiple lawsuits, effectively protect their legitimate rights and interests.
24. Objectively existing facts may not be able to be fully restored through litigation, and in practice, it is more common to lose the lawsuit due to lack of evidence, mainly because of the aforementioned failure to pay attention to retaining materials and vouchers, resulting in the court rejecting the litigation claim on the grounds of insufficient evidence after the litigation, in addition to suggesting that the awareness of evidence be improved in the business process, it is also necessary to objectively and rationally look at the result of the litigation, understand the legal rules and the work of the court.
25. After the court judgment with performance content takes effect, it has enforceability, if it involves litigation and is judged to bear civil liability, it is recommended to automatically perform the obligation in accordance with the content and time limit determined in the judgment, and if it has the ability to perform but refuses to perform, the property will be compulsorily enforced, and the individual concerned may also be included in the list of untrustworthiness according to the specific circumstances, affecting the reputation and normal life of himself and his family. Perpetrators of serious circumstances may also be held criminally responsible.
26. In recent years, the impact of service issues on litigation efficiency has become increasingly large, and it is recommended to indicate the contact information or address in the contract, and at the same time clearly stipulate that it can be used as a judicial service address in future litigation. In addition, the law stipulates a situation called "deemed service", and it is suggested that after litigation is involved, the court's service should not be evaded or rejected, and should be correctly faced and actively dealt with.