新《公司法》视阈下有限责任公司财务资助的法律规制路径构建OACHSSCD

Article 163 of the Company Law of the People's Republic of China,includes joint stoke limit-ed companies within the scope of the prohibition on financial assistance,yet remains silent on whether the prohibition applies to limited liability companies,failing to resolve the long-standing issue of inconsistent judicial standards regarding financial assistance in judicial practice.The agency cost theory provides a reasonable framework for interpreting the exemption from the prohibition on financial assistance for limited liability companies,but it cannot eliminate the endogenous and exogenous risks of financial assistance.Because financial assistance has dual characteristics—both operational and distributive—and overlaps with other capital outflow activities,a solvency test must be introduced to regulate unlawful financial sup-port and thereby prevent risks.Regarding the criteria for determination,the approach follows the princi-ple of priority to the equity test,the balance sheet test as a fallback,and the capital adequacy ratio test as a supplement.Regarding the allocation of rights and responsibilities,decision-making authority over financial assistance should be vested in the board of directors,with a strengthened fiduciary duty,while creditors should be granted a right of avoidance to achieve a balance between financing efficiency and creditor protection.In terms of regulatory coordination,a"substance-over-form"approach is adopted through a"penetrative"review,supplemented by a"transaction purpose test",to distinguish financial assistance from other capital outflow activities such as related guarantees,in order to prevent and control the risks of financial assistance for limited liability companies.