Risk of backdating a contract The risk of backdating a contract

1) There are certain legal risks. For the performance process before the contract is signed, due to the existence of large uncertainties, the rights and obligations of both parties are not clear, and the boundaries of legal liability are unclear, which is easy to cause legal disputes, and once a dispute arises, it is difficult to obtain evidence and it is more difficult to solve, and the pre-control role of the contract cannot be reflected, and there are greater legal risks. (2) There are certain management risks.

The re-signing of the contract violates the company's contract management regulations, resulting in the decline of the quality and efficiency of contract management, and disrupting the normal management order of the enterprise. (3) There is a risk of internal control audit of the enterprise. In the basic management system and internal control management process, the company clearly stipulates the project management process, the drafting, approval, signing, performance and other management links and processes of the contract, and stipulates the responsibilities and management authority of the relevant departments of contract management.

Regardless of whether the backdated contract causes actual harmful consequences to the company, it violates the company's internal control management system and process, resulting in deviations or loopholes in the implementation of the internal control system, which should be avoided. (4) There is a risk of distortion of financial information. If the written contract is not signed, it will affect the timely accounting management of the financial department, and the cost, accounts payable, balance sheet and other accounting statements of the financial department cannot truthfully display the project-related expenses, resulting in the accounting information can not truly reflect the operating conditions and cost status of the enterprise, forming the distortion of the accounting information of the enterprise, which is easy to cause business risks such as cost loss and decision-making errors.

The risk of backtracking the contract is that the parties have already performed the contract before the contract is formally concluded, so there may be a risk that the other party will not recognize the contract and the parties will perform it. However, if the parties perform the main obligations of the contract and the other party accepts it, the contract is formed.

Legal basis] Article 490 of the Civil Code, if the parties conclude a contract in the form of a written contract, the contract shall be established when both parties sign, affix their seals or press their fingerprints. The contract is formed when one of the parties has fulfilled its primary obligations and the other party has accepted it before signing, stamping or fingerprinting.

When laws or administrative regulations stipulate or the parties agree that a contract shall be concluded in written form, and the parties do not use the written form but one party has performed its main obligations and the other party accepts it, the contract shall be established.

Legal analysis: (1) There are certain legal risks. For the performance process before the contract is signed, due to the uncertainties that are greater than those of the banquet family, the rights and obligations of both parties are not clear, and the boundaries of legal responsibilities are not clear, which is prone to legal disputes.

(2) There are certain management risks. (3) There is a risk of internal control audit of the enterprise.

Legal basis: Article 90 of the Labor Contract Law of the People's Republic of China If an employer violates the provisions of this Law by extending the working hours of an employee, the labor administrative department shall give a warning, order correction of the draft error, and impose a fine.

The risks of backdating the contract include that the rights and obligations of both parties are not clear, the contract is difficult to perform, and it is difficult to provide evidence in the event of a dispute; The re-signing of the contract violates the company's contract management regulations; There is a risk of internal control audit of the enterprise; There is a risk of distortion of financial information. In addition, it is easy to lead to business risks such as distortion of corporate accounting information.

Article 464 02 of the Civil Code of the People's Republic of China [Definition of Contract and Legal Application of Identity Relationship Agreement] A contract is an agreement between the subjects of civil trousers to establish, modify and terminate civil legal relations. Marriage, adoption, guardianship, and other agreements related to status relationships shall be governed by the laws and regulations on such status relationships; Where there are no provisions, the provisions of this Part may be applied by reference on the basis of their nature.

Ways to prevent the risk of backdating contracts: 1. Familiar with relevant laws and regulations; 2. Investigate the basic situation of the parties to the contract in advance; 3. Carefully review the basic terms of the contract; 4. Pay attention to whether the content of the rights in the contract is fair and whether the signature and seal are consistent and hidden.

[Legal basis].

Article 143 of the Civil Code provides that a civil juristic act that meets the following conditions is valid: (1) the actor has the corresponding capacity for civil conduct; (2) The expression of intent is true; (3) Do not violate the mandatory provisions of laws and administrative regulations, and do not violate public order and good customs. Article 470:The content of a contract is agreed upon by the parties and generally includes the following clauses:

1) The names and addresses of the parties; (2) the subject matter; (3) Quantity; (4) Quality; (5) Price or remuneration; (6) The time limit, place and method of performance; (7) Liability for breach of contract; (8) Methods of dispute resolution. The parties may conclude a contract with reference to the model texts of various types of contracts. Article 490 If the parties conclude a contract in the form of a written contract, the contract shall be concluded when both parties sign, affix their seals or press their fingerprints.

The contract is concluded when one of the parties has fulfilled the main obligation of prudent sailing before signing, stamping or fingerprinting, and the other party has accepted it.

The risks of backdating the contract include that the rights and obligations of both parties are not clear, the contract is difficult to perform, and it is difficult to provide evidence in the event of a dispute; The re-signing of the contract violates the company's contract management regulations; There is a risk of internal control audit of the enterprise; There is a risk of distortion of financial code filial piety information. And it is easy to lead to business risks such as distortion of corporate accounting. Article 464 of the Civil Code of the People's Republic of China 02 [Definition of Contract and Legal Application of Identity Relationship Agreement] The draft is also an agreement between civil subjects to establish, modify and terminate civil legal relations.

Marriage, adoption, guardianship, and other agreements related to status relationships shall be governed by the laws and regulations on such status relationships; Where there are no provisions, the provisions of this Part may be applied by reference on the basis of their nature.

Legal analysis: (1) There are certain legal risks. For the performance process before the contract is signed, due to the large uncertainties, the rights and obligations of both parties are not clear, and the boundaries of legal liability are unclear, which is prone to legal disputes.

(2) There are certain management risks. (3) There is a risk of internal control audit of the enterprise.

Legal basis: Labor Contract Law of the People's Republic of China

Article 37 A worker may terminate a labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

Article 82 Where an employer fails to conclude a written labor contract with a worker for more than one month but less than one year from the date of employment, it shall pay the worker twice the monthly wage.

If an employer violates the provisions of this Law by failing to conclude an indefinite-term labor contract with a laborer-bearing employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should be concluded.

Article 90 Where a worker terminates a labor contract in violation of the provisions of this Law, or violates the confidentiality obligation or non-competition restriction stipulated in the contract, causing losses to the employer, he shall be liable for compensation.