my country's corporate system, especially in limited liability companies, is not only the equity of capital, but also the human nature determines that the company is based on the trust of all shareholders at the beginning. Once the trust is shaken or there will be differences between shareholders due to drastic changes in the market, it will be aborted if all parties can negotiate properly. However, more often, the controlling shareholder uses the principle of capital majority decision to suppress and exclude small shareholders.
In the case handling practice, the author encountered a large number of controlling shareholders using their voting rights on major matters of the company to make shareholder meeting resolutions that are unfavorable to small shareholders or directly make acts that harm the rights and interests of small shareholders.
Therefore, based on practical work, the author now deals with common types of infringement of the rights and interests of small shareholders? This article is specially written for discussion.
1. Common types of infringement of the rights and interests of small shareholders
1. Deprive minor shareholders of the right to know
2. Use the controlling shareholder status to transfer or transfer assets in disguise
3. Refusing to agree to change the company's legal representative
4. Refusing to distribute profits
5. Force small shareholders to withdraw shares
2. Response suggestions for small shareholders
1. When depriving minority shareholders of the right to know
According to Article 33 of the " of the Company Law of the People's Republic of China", shareholders have the right to review and copy the company's articles of association, shareholders' meeting minutes, board of directors' meeting resolutions, and board of supervisors' meeting decisions, but if they want to inquire about the company's accounting books, they must first make a written request to the company. If the company refuses to provide inquiry within 15 days, the minority shareholders have the right to file a lawsuit with the people's court on the grounds that shareholders' right to know. In general, the court will support the litigation requests of small shareholders.
However, in this type of right to know litigation, the controlling shareholder will delay the litigation cycle and organize the company's accounts. By the time of victory, the controlling shareholder's accounting accounts have generally been reorganized.
Therefore, it is recommended that small shareholders introduce judicial audits to find evidence that is beneficial to them and obtain their own legitimate rights and interests. At the same time, they focus on whether the controlling shareholder uses the controlling shareholder's status to transfer or transfer the company's assets in disguise to their own name, such as whether the controlling shareholder remitted from the company's account to his own account or instructed to remit funds under a certain account to a certain account with reason or contract support, and whether there is a guaranteed loan, etc.
2. The situation of transferring or transferring assets in disguise using the controlling shareholder's status
① It is common for controlling shareholders to misappropriate company funds or lend company funds to others or provide guarantees for others with company property. Small shareholders can have evidence from shareholder meeting resolutions or financial statements. If the controlling shareholder occupies the company's funds, he or she can ask the controlling shareholder to return the company's property. If the company suffers losses, he or she can ask for compensation. The small shareholder can also file a lawsuit with the court to demand compensation from the controlling shareholder.
② External guarantees to the company's controlling shareholder. If both the controlling shareholder and the small shareholder attend the shareholders' meeting, the small shareholder can vote against it, because although the controlling shareholder has the right to attend the shareholders' meeting, the controlling shareholder has no voting rights for the company's meeting resolutions guaranteed by the controlling shareholder. If the small shareholder does not attend the shareholders' meeting, the shareholders' meeting resolution made by the controlling shareholder is invalid, and the controlling shareholder actually harms the legitimate rights and interests of the small shareholder, and the small shareholder may file a lawsuit with the people's court in accordance with the law.
③ When using the convenience of your position to seek business opportunities belonging to the company for yourself or others, or to operate the same business as the company you are in for others, it is difficult for small shareholders to obtain evidence, but it is not unfounded. It is recommended that small shareholders use interpersonal relationships associated with the controlling shareholder, including resources such as classmates, relatives, friends, ex-wife relationship circles, etc., or check whether they have registered a company of the same type on the Industrial and Commercial Information Network. If there is a controlling shareholder who registers a similar enterprise, relevant evidence should be collected as much as possible and filed a lawsuit with the people's court to protect the rights and interests of the small shareholders.
3. Refusal to agree to change the legal representative of the company
Change the legal representative of the company is formally the convening of the shareholders' meeting should comply with the provisions of the "Company Law of the People's Republic of China" or the company's articles of association.In essence, it should comply with the provisions of the " Company Law " that "must be approved by shareholders representing more than two-thirds of the voting rights."
In practice, even if the above two conditions are met, according to the current management process of the my country Market Supervision Administration, the requirements are generally strict when it involves changes in sensitive matters of the company. Before the change is completed, the small shareholder will go to the corresponding administrative authority to explain in writing. Even if the matters that the controlling shareholder wants to change comply with the provisions of the Company Law, the market supervision and management department generally does not make changes. Although this objective phenomenon does not comply with the provisions of the Company Law, it has indeed helped small shareholders to a certain extent.
4. Refusal to distribute profits
. Article 37, paragraph 6 of the Company Law stipulates that "the shareholders' meeting reviews and approves the company's profit distribution plan and the loss-making plan." When distributing profits, the company must comply with the statutory procedural requirements and the shareholders' meeting shall pass the resolution to distribute profits. Only when the company's net profit distribution is at the same time, that is, the objective existence of net profit and formal requirements, that is, the resolution of the shareholders' meeting to distribute net profit, can the company's net profit distribution behavior take effect, and the shareholder's right to claim dividend distribution becomes a real right. In practice, the company's financial director is generally familiar to the controlling shareholder, and small shareholders generally cannot know whether profits are generated. Although the Company Law stipulates that small shareholders can file a lawsuit with the People's Court on the grounds that "company surplus distribution disputes", the People's Court also uses profit distribution as the internal governance of the company to reject the small shareholder's lawsuit request as the premise of distribution through the shareholders' meeting resolution, which will make it impossible for small shareholders to achieve the purpose of distributing profits.
Therefore, it is recommended that small shareholders should clarify the distribution method of profits at the beginning of the company's establishment, and shareholders agreed that the company should provide shareholders with the official seal financial statements (balance sheet, income statement, cash flow statement) or other financial statements (if there are two sets of accounts) within a certain period of time (quarters or months). In this case, the financial statements that have been provided or other possible accounts are inconvenient to change, and it is difficult for the controlling shareholder to re-do the accounts in a short period of time. If the opportunity to increase the cost in a short period of time is reduced, small shareholders can use this as evidence or bargaining chips to solve the actual distribution of interests. If the minority shareholder fails to have any evidence involving the company's finances, it is recommended to protect his legitimate rights and interests with the right to know.
5. Under the form of forcing small shareholders to withdraw shares
Co., Ltd., the controlling shareholder can fully control the company. The controlling shareholder uses the principle of capital majority decision of the shareholders' meeting. The opposition of the small shareholder is ineffective. The controlling shareholder can increase costs or increase debts to reduce the company's net assets, or continue to distribute dividends, etc. to achieve the purpose of acquiring the equity of the small shareholder at a low price.
Although Article 74 of the Company Law stipulates that small shareholders can propose the right to acquire shares to the controlling shareholder, according to the provisions of this article, the formal requirements are very strict. When the conditions are not met, it is difficult for small shareholders to file a lawsuit for the acquisition of shares. Even if the lawsuit is filed, the equity price can no longer meet the expectations of small shareholders.
Therefore, small shareholders may file a lawsuit with the people's court or report to the relevant departments through different circumstances such as the situation where the controlling shareholder harms the interests of the company, damages the rights and interests of the small shareholders, and pays less taxes to be paid. They may negotiate with the controlling shareholder in the litigation or before reporting, in order to obtain the transfer of equity for a reasonable price.
If the minority shareholder insists on not transferring the company's equity, the controlling shareholder has no way to deprive the minority shareholder of the rights. In practice, some companies deliberately "spite" the situation because the small shareholders do not cooperate with the controlling shareholder's wishes, which eventually leads the company to liquidation.
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-