Today brings you 10 situations in which investors have obtained shareholder qualifications without registration of industrial and commercial change.
1. After the equity transfer contract takes effect, the transferee's shareholder qualification shall obtain it from the date on which the transferor or transferee notify the company of the equity transfer facts.
"Opinions of the Shandong Higher People's Court on Several Issues Concerning the Trial of Company Disputes Cases (Trial)" 35. After the equity transfer contract takes effect, the transferee's shareholder qualification shall obtain it from the date on which the transferor or transferee notify the company of the equity transfer facts. However, it does not apply if the equity transfer contract has special agreements on the transfer of equity , or if the equity transfer contract is invalid, revoked or terminated.
If a shareholder transfers the same equity multiple times, the people's court shall determine that the transferee who has obtained the industrial and commercial change registration is shareholder qualification. If a shareholder transfers the same equity multiple times and has not completed the industrial and commercial registration change procedures, the transfer notice of equity will first arrive at the company's transferee to obtain shareholder qualification.
2. After the equity transfer contract is established and effective, the equity change shall occur when the company recognizes the qualifications of the new shareholder.
"Guangxi High Court | Guidance on Several Issues Concerning the Trial of Company Disputes Cases" 18. [Judgement on the Time of Equity Change]
After the equity transfer contract is established and effective, the equity change shall occur when the company recognizes the qualifications of the new shareholder, except for the equity transfer that stipulates that the approval procedures should be handled. The principle is that equity is mainly used as a relative right, a human right rather than a property right, and must be specifically claimed to the company or other shareholders. Therefore, the equity transferee must alternatively enter the legal relationship between the company and other shareholders. It must go through the knowledge or confirmation of the company and all shareholders, so that the transferee can fully obtain the shareholder membership, fully exercise the equity rights and assume shareholder obligations.
case should be the time when the company confirms the equity transfer as the change time point. The specific time point is generally that the company begins to change the company's shareholder list, change the matters recorded in the company's articles of association, handles industrial and commercial registration, issuing capital contribution certificates to new shareholders, and other changes; or if the new shareholder has actually begun to exercise shareholder rights in individual cases, it can also be regarded as the company's confirmation of the new shareholder membership qualifications, and this is used as the time point for the equity change.
Although the company's change of shareholder register is not the only time point or formal requirement for the effectiveness of equity changes, if the name or name of the equity transferee has been recorded in the change of the company's shareholder register, it can be determined based on this that the transferee has obtained the equity.
3. The parties transfer the equity of a limited liability company between them, and the transferee claims that he has obtained the equity based on the reason that his name or name has been recorded in the shareholder list.
" Minutes of National Court Civil and Commercial Trial Work Conference " 8. [Changes in equity of a limited liability company] If the parties transfer the equity of a limited liability company between them and the transferee claims that he has obtained the equity on the grounds that his name or name has been recorded in the shareholders' register, the people's court shall support it in accordance with the law, except for the transfer of equity that should go through the approval procedures for effective implementation, as stipulated by laws and administrative regulations. If the equity change registration is not registered with the company, the authority shall not be opposed to the bona fide counterparty.
4. The actual investor participates in the company's business management and actually exercises shareholder rights. If other shareholders of the company do not express their objections within a reasonable period, their shareholder qualifications shall be confirmed in accordance with the law.
Key position of referee: Although the parties have not signed a written equity holding agreement, if the rights of the actual investor should be protected based on the circumstances ascertained in the court and the circumstances of the establishment and operation of the company are fully considered, and the comprehensive use of the rules of thumb, the legal relationship of the equity holding relationship can be confirmed, the rights of the actual investor should still be protected. If the actual investor specifically participates in the company's business management and actually exercises shareholder rights, and other shareholders of the company do not express their objections within a reasonable period, their shareholder qualifications shall be confirmed in accordance with the law. Source of the case: Wang Yun sued Qinghai Mount Everest Cordyceps Co., Ltd. and other shareholder qualification confirmation dispute case.
5. When the company's shareholder qualifications are inherited, whether the company issues a capital contribution certificate, whether it is recorded in the shareholder register and conducts industrial and commercial change registration will not affect the acquisition of shareholder qualifications.
Referee Intention: The way to obtain shareholder qualifications of a limited liability company includes original acquisition and successor acquisition. The original acquisition is to obtain shareholder qualifications through capital contributions when establishing the company or obtain the company's shareholder qualifications due to the company's capital increase after the company is established. Successive acquisition means obtaining shareholder qualifications through equity transfer, equity gift, equity inheritance, etc. In this case, Cao Xiaoming and Zhang, as legal heirs of Guangtong Company’s shareholder Zhang Houxiong, may inherit Zhang Houxiong’s shareholder qualification in Guangtong Company after Zhang Houxiong’s death. In addition, Guangtong Company's articles of association do not have any special agreement on the inheritance of shareholder qualifications. Cao Xiaoming and Zhang of course obtained Guangtong Company's shareholder qualifications and enjoyed the right to know. As for whether Guangtong Company issues a capital contribution certificate, whether it is recorded in the shareholder register and conducts industrial and commercial change registration, it does not affect the acquisition of the shareholder qualifications of Cao Xiaoming and Zhang. Case source: Xi'an Intermediate People's Court Case number: (2016) Shaanxi 01 Minzhong No. 7125.
6. The company's articles of association can also determine that investors obtain shareholder qualifications
The company's articles of association are the autonomous documents of the company's organization and its actions, and the main legal basis for determining shareholder rights and obligations:
1. The act of shareholder signing the articles of association stated in the company's articles of association indicates that the perpetrator has the true intention of being a shareholder of the company:
A. The company's articles of association are an important basis and standard for determining shareholder qualifications: Generally speaking, only the subject recorded in the articles of association can obtain shareholder qualifications; those who are not recorded as shareholders in the company's articles of association do not have shareholder qualifications.
B. When a dispute arises between shareholder qualifications and shareholders, the company's articles of association can be used as evidence; but the company's articles of association do not have the effect of presuming shareholder qualifications.
2. When the company's articles of association registered by the industrial and commercial are inconsistent with the company's articles of association that have not been registered by the industrial and commercial:
A. If the qualifications of the promoter's shareholders are disputed, the records of the registered company's articles of association shall prevail;
B. If the qualifications of the shareholders are disputed, the records of the new articles of association shall prevail.
7. The capital contribution certificate can also prove the shareholder qualification of the investor
1. The confirmation of shareholders of limited liability company must meet the following conditions:
A. Subscribe to the company's capital contribution;
B. is loaded into the company's shareholder list;
C. is recorded as a shareholder in the company's articles of association and signed and sealed on the company's articles of association;
D. Obtain the capital contribution certificate issued by the company;
E. It is listed as a shareholder in the company's documents registered by the industrial and commercial administrative organs.
But only the investment certificate issued by the company is issued, and investors cannot prove that they are shareholder qualifications.
8. Implicit shareholder can obtain shareholder qualifications after obtaining the consent of more than half of the other shareholders.
According to Article 24 of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) (Note: Article 25 before the amendment of Company Law in 2014), "If the actual investor requests the company to change the shareholders to issue a capital contribution certificate without the consent of more than half of the company's other shareholders, it is recorded in the shareholder register, recorded in the company's articles of association and registered by the company registration authority, the people's court will not support it." That is, if the actual investor wants to achieve the signature of the hidden shareholder, it must obtain the consent of more than half of the other shareholders of the company. If more than half of the other shareholders do not agree to the actual investor's signature, even if the actual investor has already contributed the capital, he still cannot obtain the shareholder qualification.
9. If an implicit shareholder always attends the shareholders' meeting in his own name and exercises the corresponding voting rights, the court will determine that the investor has shareholder qualifications.
Referee summary: After Hu Xiaoqiang became a hidden shareholder, he has been recognized by the company. In the first trial, the company and Wu Gongjian made it clear that Hu Xiaoqiang had become a shareholder of the company and had regarded Hu Xiaoqiang as a shareholder of the company to participate in the company's distribution and do the finances, so other shareholders of the company have also agreed. As the assignee, the company's behavior and dividends are recognized. There is reason to believe that the company's internal procedures have been in place, that is, the procedures to obtain the consent of more than half of the company's shareholders have been in place. Hu Xiaoqiang asked the company to issue a capital contribution certificate and carry out the corresponding equity change registration procedures, and the appeal was rejected and the original judgment was upheld. Source of the case: Dispute Case of Confirmation of Shareholders with Yiwu Deyun Freight Transportation Co., Ltd. [(2014) Zhejiang Jinshang Zhongzi No. 1885]
10. If the company recognizes its shareholder identity as a shareholder for the act of distributing dividends to hidden shareholders, it shall be deemed that it has been approved by the consent of other shareholders, and the hidden shareholder can obtain shareholder qualifications.
Judgement Summary: Although the provisions of Article 24, paragraph 3 of Article 24, paragraph 3 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)" are based on the consideration of the human nature of the limited liability company, it applies to situations where the relationship between the hidden shareholder and the prominent shareholder is not known and recognized by the company and other shareholders. At this time, the internal relationship between the hidden shareholder and the prominent shareholder is of course not binding on the company. If the relationship between the hidden shareholder and the prominent shareholder has been known and recognized by the company and other shareholders, or the company has recognized its shareholder identity by allowing it to participate in the company's business management or distribute dividends to the hidden shareholders, it does not need to obtain the consent of more than half of the other shareholders. Source of the case: Appeal case of shareholder qualification confirmation dispute between Jinhua Tinggui Breeding Co., Ltd. and Wu Zhongshang [(2016) Zhejiang 07 Minzhong No. 4622]
In summary, in internal company disputes, investors can obtain shareholder qualifications without industrial and commercial change registration.
Source | Legal Business Home Qi Jingzhi Lawyer
