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Part Three: Countermeasures and Suggestions for Resolving Corporate Disputes
1. Shareholders should perform their obligations in accordance with the law and correctly exercise shareholder rights
2. Companies should standardize internal governance and improve internal management systems
3. Companies should regulate external behavior , prevent and resolve major risks
4. Civil Code Era Company Law and changes in judicial interpretations
The Civil Code and the Company Law belong to the relationship between general law and special law, new law and old law.
After the Civil Code comes into effect, it will have a certain impact on corporate governance, company resolutions, company liquidation, etc.: For example, it clarifies the powers and relationship between the shareholders’ meeting and the board of directors, clarifies the liquidation obligors of a limited liability company, and clarifies If the company's resolution is invalid or revoked or if the registration is inconsistent, it shall not be used against a bona fide third party, and the third party's option to pursue liability for the founder's establishment actions is clarified.
In order to implement the Civil Code, on December 29, 2020, The Supreme People's Court announced the "Supreme People's Court's Reply on Amending the Supreme People's Court's Reply on Issues such as Whether the State-owned Land Use Rights Allocated to Bankrupt Enterprises Should be Included in the Bankruptcy Property" >29 Decisions on Commercial Judicial Interpretations, etc., and revised some contents of the Judicial Interpretation II of the Company Law, the Judicial Interpretation III of the Company Law, the Judicial Interpretation IV of the Company Law, and the Judicial Interpretation Five of the Company Law. .
1. Reducing the requirement for a company to assume contractual liability during establishment
Article 75, paragraph 2, of the Civil Code “For civil liability arising from the establishment of a legal person to engage in civil activities in its own name, the third party has the right to choose to request the legal person or The new "Judicial Interpretation II of the Company Law" accordingly reduces the requirement that the company bear the "responsibility of the promoters to sign contracts in their own names for the establishment of the company" and deletes the prerequisite "the company shall confirm the contract after establishment, or the company has actually enjoyed the contract" Rights or performance of contractual obligations", returning the choice of the responsible party to the counterparty of the contract is more conducive to protecting the counterparty of the contract.
Only civil activities carried out by the promoters in their own names "for the purpose of establishing a company" may be borne by the company. As for how to judge whether civil activities are carried out "for the purpose of establishing a company", theoretically there are substantive standards and formal standards: the substantive standard is based on whether the civil activities engaged in by the founder are inherent or necessary behaviors to establish the company; the formal standard is based on whether the civil activities performed by the founder are inherent or necessary to establish the company; the formal standard is based on whether the founder Judgment is made on whether the civil activities are carried out in the name of a legal person.
Article 2 of the original "Judicial Interpretation III of the Company Law" focused on formal standards and supplemented by substantive standards. That is: for contracts signed by the promoter in his own name, the promoter shall in principle bear the responsibility; but if the company is confirmed after its establishment or has actually enjoyed the contract rights or performed the contract obligations, the counterparty may require the company to bear the responsibility.
Article 2 of the new "Judicial Interpretation III of the Company Law" deletes the relevant provisions on substantive standards and leaves the choice of the subject of contractual liability to the counterparty of the contract, which is conducive to the protection of third parties' reliance interests and is also consistent with my country's " Article 926 of the Civil Code "If the trustee fails to perform its obligations to the third party due to the principal's reasons, the trustee shall disclose the principal to the third party, and the third party may therefore choose the trustee or the principal as the counterparty. Claim its rights, but the third party shall not change the selected counterparty" is consistent with the third party's right of choice.
2. Update the provisions on the invalidity of the equity holding agreement.
Due to the modification and deletion of the reasons for the invalidity of the contract in the Civil Code, Article 24 of the new "Judicial Interpretation III of the Company Law" also refers to the Civil Code, and the equity proxy agreement is revised and deleted. The amendment is based on the relevant provisions on the validity of the agreement, and only generally stipulates that "if the contract does not have invalidity stipulated in the law, the contract shall be deemed to be valid", and is no longer limited to "if there is no invalidity stipulated in Article 52 of the Contract Law, the contract shall be deemed valid" .
3. Improving related party transaction damages and shareholder representative litigation
Added new instances of citing Article 84 of the Civil Code and adding "related party transaction contracts that are not effective for the company" as shareholder representative litigation.
The situation of a related-party transaction contract that does not have legal effect on the company may be:
① Failure to perform approval procedures in accordance with laws and administrative regulations or failure to meet the conditions for the effectiveness of the contract.
② Article 171 of the Civil Code If the actor does not have the power of agency, exceeds the power of agency, or after the power of agency has been terminated, he still performs agency acts without ratification by the principal, it will not be effective against the principal;
③ Article 7, Paragraph 1, Item 2 of the "Interpretation of the Guarantee System of the Civil Code" stipulates that the guarantee contract will not be effective for the company, specifically : The legal representative of the company violates the provisions of the Company Law on the company's external guarantee resolution procedure and exceeds The authority signs a guarantee contract with the counterparty on behalf of the company. If the counterparty is not in good faith, the guarantee contract will not be effective for the company.
4. Clarify the legal basis for the subject of legal person liquidation obligations
Legal persons stipulated in the Civil Code include for-profit legal persons and non-profit legal persons. For-profit legal persons include limited liability companies, Co., Ltd. and other corporate legal persons, and non-profit legal persons include enterprises. Units, social groups, foundations, social service agencies, etc.
The "Company Law" does not directly stipulate the concept of the subject of company liquidation obligations, but stipulates the liquidation responsibilities of shareholders in the "Judicial Interpretation II of the Company Law". Article 70 of the "Civil Code" adds general provisions on liquidation. Article 2 of the newly revised "Judicial Interpretation II of the Company Law" clearly quotes Article 70 of the "Civil Code" to improve the completeness of the quoted clauses, and also embodies the general principles of the "Civil Code" and the "Company Law" general law and commercial special legal relationship.
The provisions on liquidation entities in the Civil Code and the Judicial Interpretation II of the Company Law are not completely consistent. The latest Civil Code does not list shareholders as liquidation obligors. Article 70 of the Civil Code stipulates that directors, directors and other members of the executive body or decision-making body of a legal person are liquidation obligors.
Articles 18, 19, and 20 of the "Judicial Interpretation II of the Company Law" essentially include shareholders of limited liability companies, controlling shareholders, and actual controllers of joint stock companies in liquidation obligations in the form of judicial interpretations. people. Under the current legal system, the shareholders of a limited liability company are still the liquidation obligors, and the controlling shareholders and actual controllers of the joint-stock company are still the liquidation obligors:
① Paragraph 2 of Article 70 of the Civil Code is reserved for other special laws. The space for special provisions "If laws and administrative regulations provide otherwise, such provisions shall prevail." Although the "Judicial Interpretation II of the Company Law" is not a legal or judicial interpretation at the level of effectiveness and is not completely consistent with the requirements of the "Civil Code", it does not Therefore, the validity of the provisions on liquidation obligors in the "Judicial Interpretation II of the Company Law" is negated.
In fact, Article 21 of the new "Judicial Interpretation II of the Company Law" still stipulates the rights of recovery for shareholders of a limited liability company, controlling shareholders and actual controllers of a joint stock company after assuming liquidation responsibilities.
② tends to narrow the scope of liquidation liability for shareholders of limited liability companies.
First of all, the "Minutes of the Nine People's Meeting" held that regarding the determination of the liquidation liability of shareholders of a limited liability company, the results of some cases have inappropriately expanded the liquidation liability of shareholders.
If a small shareholder can prove that he is "neither a member of the company's board of directors or supervisory board, nor has he appointed anyone to serve as a member of the organization, and has never participated in the company's operation and management", it does not constitute "negligence in performing obligations"; "Perform obligations" but there is no causal relationship with the loss of the company's main property, account books, important documents, etc., the People's Court supports the claim that it should not bear joint and several liability for the company's debts in accordance with the law.
Secondly, , December 29, 2020 " "Notice of the Supreme People's Court on No longer referring to some Guiding Cases" Notice no longer refers to the No. 9 Guiding Case (the key points of the judgment of this case: shareholders of a limited liability company, directors and controlling shareholders of a joint stock company shall, in accordance with the law, when the company is If a company performs liquidation obligations after revoking its business license, it cannot be exempted from liquidation obligations on the grounds that it is not the actual controller or has not actually participated in the company's operation and management). This is also consistent with the provisions of the "Nine People's Minutes" that tighten the liability of shareholders of limited liability companies for liquidation. .
③ From the perspective of rationality and operability:
For a limited liability company, the number of shareholders is usually small and the compatibility is strong. It is reasonable and reasonable to define shareholders as liquidation obligors after the company is dissolved. Operability.
For a joint-stock company,... In fact, after the court ruled that the joint-stock company was dissolved, could the liquidation group be formed in time, who would be the members of the liquidation group, and even after the liquidation group was formed? Whether the company can be liquidated in accordance with the law may only be controlled by the controlling shareholders and actual controllers.
5. Newly added rights and responsibilities related to the liquidation of directors and interested parties
Article 7 of the new "Judicial Interpretation II of the Company Law" "Establishment, The rights holders of "Designated Liquidation Team", Article 9 "Replacement of Liquidation Team Members", "Liquidation Plan and Damage Compensation" are limited to company shareholders or company creditors, seventh, ninth and fifteenth of the new "Judicial Interpretation II of the Company Law" Give corresponding rights to directors and interested parties.
If the liquidation obligor fails to properly perform the liquidation obligations in a timely manner, the company's directors and other interested parties may apply to the court for designated liquidation, replace the members of the liquidation team, and request the liquidation obligor to compensate for losses. The scope of interested parties, in addition to creditors, should also include company shareholders, employees and other entities that may participate in the distribution of legal persons.
Article 70 of the "Civil Code" stipulates the liquidation obligations of directors. The directors, directors and other legal person executive agencies or decision-making bodies of a legal person are directly responsible for the operation of the legal person. It is convenient for their positions to understand the operating status of the legal person and require them to assume the liquidation obligations. , which can effectively prevent the loss of company property and thereby protect the interests of creditors and other stakeholders.
Since directors are listed as liquidation obligors, based on the principle of consistency of rights and responsibilities, the channels for directors to perform their obligations should be expanded to avoid liability for failure to perform liquidation obligations in a timely manner for reasons other than those of the directors. Directors should also be given certain rights.
6. Adjust the rules for internal recovery of liquidation obligors
Article 18 and Article 20 Paragraph 1 of "Judicial Interpretation II of the Company Law" stipulate that the liability of the liquidation obligor for the company's debts is an external liability. Each subject bears joint and several liability.
Article 21 of the "Judicial Interpretation II of the Company Law" stipulates the sharing of responsibilities within the liquidation obligors, and each main system shall bear responsibilities in proportion.Taking into account the different functions and roles of each liquidation obligor in the company, for the civil liability arising from the failure to perform liquidation obligations in accordance with the law, each liquidation obligor should share the civil liability according to the degree of fault; for a liquidation obligor who has no fault, as long as it can be proved that he has not If the person is at fault, he will be exempted from liability for the omission.
The new "Judicial Interpretation II of the Company Law" limits the entities that can request compensation based on fault after assuming civil liability to: shareholders of a limited liability company and joint stock limited companies who should bear liability in accordance with the provisions of Article 18 and Article 20, paragraph 1. The directors, controlling shareholders, and actual controllers of the company, but not all shareholders of limited liability companies, directors, controlling shareholders, and actual controllers of joint stock companies, the scope of internal accountability is also first clearly limited to those who should bear liquidation obligations. The subject corresponds to the provisions on the subject of obligations in Article 70 of the Civil Code and Article 2 of the new Interpretation II of the Company Law.
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Part 4: Typical cases
1. Company establishment, company capital and shareholder capital contribution
Case 1: silent shareholder without signing an equity holding agreement The determination of qualifications requires comprehensive consideration of whether There is a consensus on the holding of shares, whether the shareholders' rights have actually been exercised, whether other shareholders are aware of it, etc.
- Feng Mou v. a dairy company and other shareholders' qualification confirmation dispute case
Judge's opinion:
Confirmation of shareholder qualifications is the exercise of rights by shareholders, the company The basis for efficient operation and proper handling of shareholder qualification confirmation disputes are of great significance for the company system to play its due role.
In shareholder qualification confirmation disputes, there are a large number of dormant shareholders of limited liability companies who require the company to confirm their shareholder identities, that is, the problem of making dormant shareholders visible. Article 24 of the Third Judicial Interpretation of the Company Law provides a basis for handling this type of disputes. The identification of shareholder qualifications between dormant shareholders and apparent shareholders is an internal relationship of the company and does not involve external relationships such as the company's creditors. If dormant shareholders require confirmation of their shareholder qualifications, they must meet substantive requirements.
On the one hand, if there is a legal and effective equity holding agreement between the dormant shareholder and the apparent shareholder, and the dormant shareholder actually exercised his shareholder rights, and the company and other shareholders of the company are aware of this and have not raised any objection, they should The shareholder qualifications of the dormant shareholder shall be confirmed;
On the other hand, if there is no equity holding agreement between the dormant shareholder and the manifest shareholder, the method and consideration of the equity acquisition of the manifest shareholder, the concealment of the shareholder shall be considered Based on factors such as whether the shareholders actually exercise their shareholder rights, whether the company and other shareholders of the company are aware of the equity holdings, a comprehensive judgment is made on whether the dormant shareholders and the apparent shareholders have an agreement on the equity holdings, and then the shareholder qualifications are determined.
Typical meaning:
In the absence of an equity holding agreement, the evidence in the case should be used to determine whether the silent shareholder has shareholder qualifications
….In this case, the court found that the transferee did not make a reasonable decision on the free transfer of the equity transfer agreement involved in the case. Explain that there is no evidence to prove that he has actually exercised his shareholder rights. Other shareholders are aware of the equity holding relationship. A certain dairy company’s self-confessed statement in a separate defense document has confirmed that Feng is an actual shareholder of a certain dairy company. The determination of the shareholder qualifications of dormant shareholders when signing an equity holding agreement is of typical significance.
Case 2: If the shareholder cannot prove that there is a legitimate reason for his transfer of the capital contribution into the company account after capital verification, it should be deemed to constitute an escape of the capital contribution
- Judgment of an enterprise development consulting company v. Liu shareholder’s capital contribution dispute case
Viewpoint:
Shareholder investment is a legally required procedure for establishing a limited liability company. Shareholder investment constitutes the company's registered capital, which is the basis for a limited liability company to carry out production and business activities and assume external responsibilities.
In practice, in order to circumvent the law and evade legal responsibilities, there are shareholders who make false capital contributions, withdraw capital contributions, transfer property and other illegal behaviors when the company is established and during production and operation activities. This violates the principle of capital maintenance and increases the company's At the same time, shareholders still retain their shares and equity after withdrawing their capital, making the company "empty shell", which will seriously affect the company's normal operations and directly infringe the legitimate rights and interests of the company itself and other shareholders who are not at fault.
Article 12 of the "Third Judicial Interpretation of the Company Law" not only lists the specific manifestations of capital withdrawal, but also stipulates the safety clause of "other circumstances".
In practice, , the behavior of shareholders transferring capital contributions into the company account for capital verification and then transferring it out is a relatively typical behavior that erodes the company's capital. This article excludes "the behavior of transferring capital contributions into the company account for capital verification and then transferring out" from the The formal requirements for capital contribution were deleted due to the provisions on capital verification in the Company Law, in order to maintain the formal uniformity of the law.
In practice, after the establishment of the company, if a shareholder transfers the capital contribution into the company account for capital verification and then transfers it out without legal procedures, thus harming the interests of the company, the company may be punished in accordance with Article 12, Item (4) of the Judicial Interpretation III of the Company Law. The regulations determine that shareholders have withdrawn their capital contributions.
Regarding the distribution of the burden of proof, it is a basic principle for whoever claims to give evidence , but in special circumstances, individual procedural fairness, the parties' evidentiary conditions and ability to produce evidence must be considered.
Specifically in the case of withdrawing capital, the degree of shareholder control over the company can be considered as one of the factors. When shareholders control the company, shareholders have a more advantageous ability to prove that the funds between shareholders and the company should be verified. The burden of proof is on the reasonableness of transactions and capital transfers from the company. If a shareholder cannot provide evidence to prove that there are legitimate reasons for transferring capital out of the company, it shall be deemed as a withdrawal of capital.
Typical meaning:
Shareholders bear the burden of proof that they have justifiable reasons for transferring the capital contribution into the company account after capital verification.
….In this case, Liu made a profit only a few dozen days after the establishment of the company and Liu’s capital contribution. In the form of repayment, 500,080 yuan was paid to Li, a person outside the case. The court held that Liu, as the company's sole shareholder and legal representative at the time, had a superior ability to produce evidence, but he did not submit evidence to prove the rationality of his transfer, so it determined that Liu had withdrawn capital.
Case 3: investors petition for return of capital contributions. If all parties have expressed intention to increase capital, and the subscriber has completed its capital increase obligations but has not obtained shareholder qualifications, the judgment should support its appeal
- An investment company sued a certain Mining Company, Li et al. New Capital Subscription Dispute Case
The referee’s opinion:
After the investor has subscribed for capital, if the investor returns without obtaining shareholder qualifications, the company may be required to return the subscription money or file a lawsuit to confirm the shareholder qualifications . This involves the identification standards for shareholders to obtain shareholder qualifications during the company's capital increase. According to Article 43 of the Company Law, increasing registered capital requires a special resolution by the shareholders' meeting, and then the company and the subscriber sign a capital increase agreement.
And when the subscriber obtains shareholder qualifications, it should also be analyzed based on the legal relationship .
First of all, from the analysis of the expression of intention requirements, a consistent expression of intention must be formed between shareholders and stock subscribers, and between stock subscribers and the company. Generally speaking, valid shareholders' meeting resolutions and capital increase agreements can be directly used as evidence to prove that the intention is consistent. In the absence of a shareholders' meeting resolution, but the subscriber has actually participated in the company, enjoyed and exercised shareholder rights, and other shareholders have not raised any objections, it should also be considered that a consensus has been formed among the shareholders.
Secondly, from the analysis of object requirements, the subscriber’s investment must constitute the company’s registered capital .
The object of equity is the share of investment reflected in the company's registered capital. If you want to become a shareholder as an investor, you must convert your paid-in or subscribed capital into the company's registered capital. Otherwise, if the investor's capital contribution is not reflected in the company's registered capital, then the equity object corresponding to the capital contribution has not yet been created, and the corresponding equity cannot exist.
The essence of a company's capital increase is that the subscriber invests in the company to increase the company's registered capital. However, the shareholders' meeting resolution and the capital increase agreement themselves cannot lead to an increase in registered capital. Only when the company completes the industrial and commercial change registration procedures for the capital increase in accordance with the capital increase agreement can the increase in registered capital be completed and the subscriber's capital contribution converted into the company's capital accordingly. capital.
In the case of a company's capital increase, the acquisition of shareholder qualifications should be analyzed from the above two aspects.
Typical meaning:
The investor’s contractual purpose of becoming a shareholder has failed, and his request for return of capital contribution should be supported
In this case, the investor fulfilled its obligation to increase capital in accordance with the contract, but the company failed to register the industrial and commercial change, issue a capital contribution certificate, etc. , requesting a court to order the company to return the capital contribution on the grounds that it constitutes a serious breach of contract.
Regarding the nature of the 10 million yuan, although the "Phase I Capital Increase Subscription Agreement" stipulates that the target company and its shareholders promise that after the three-party cooperation period ends, they will unconditionally repurchase the equity and interests of the investment entity at the agreed rate of return. However, considering that the three parties have made detailed arrangements in the contract regarding the use of investment funds, project progress, profit targets, profit distribution, right to know, etc., it is believed that the purpose of the investment subject is to become a shareholder and enjoy the rights of shareholders by subscribing for the new capital of the target company. Equity, the "Phase I Capital Increase Subscription Agreement" is the true expression of the investment subject's intention, and the 10 million yuan is an investment rather than a loan. If the contractual purpose of the current investment entity has been frustrated, the target company shall return the investment funds and bear liability for breach of contract in accordance with the contract.
Case 4: Company's creditors request shareholders who have not performed or failed to fully perform their capital contribution obligations to bear supplementary compensation liability for the portion of the company's debt that cannot be paid within the scope of uncontributed capital and interest, which should be supported.
- A venture capital company sued an investment company Fund company, Qian, a certain real estate company and other loan contract dispute cases
Judgment opinion:
"Judicial Interpretation III of the Company Law" Article 13 Paragraph 2 stipulates that the company's creditors request shareholders who have not performed or failed to fully perform their capital contribution obligations The people's court shall support the company that assumes supplementary compensation liability for the portion of the company's debt that cannot be paid within the scope of the capital and interest that has not been contributed. The court did not support it.
According to the above provisions, shareholders' failure to perform or fully perform their capital contribution obligations violates the company's capital maintenance principle and poses a greater threat to the interests of creditors. When a shareholder fails to perform or fails to fully perform its capital contribution obligations, the creditor has the right to request the shareholder to bear supplementary compensation liability for the portion of the company's debt that cannot be paid within the scope of the capital and interest that has not been contributed.
The core content of this supplementary liability system is to give the company's creditors the right to direct claims against shareholders who have not fulfilled their capital contribution obligations.The legal basis is creditor's subrogation rights, but there are some limitations in the details of the system (such as establishment requirements, exercise methods, etc.) Its particularity makes it difficult to completely copy the general rules in civil law.
As the supplementary liability of , the uninvested shareholder compensation liability of has the following characteristics:
1. Legal nature of liability
As far as the reasons for the occurrence of liability are concerned, the creditor-debt relationship originally occurred between the company and the creditor, and did not originally involve the liability of shareholders. Only when the company cannot pay off its debts, in order to protect the interests of creditors, will the non-contributing shareholders be held liable;
2. Supplementary liability
As far as the order of liability is concerned, the company is the real debtor and is in the first place. Capital shareholders are in a complementary position. This means that only when the company cannot pay off its debts can creditors claim compensation from uninvested shareholders for the unpaid portion;
3. Limitation of liability
The scope of liability of uninvested shareholders to all creditors can only be based on shareholders The scope of unfulfilled investment obligations is limited to .
From an interpretative perspective, shareholders who have not contributed capital are only liable for supplementary compensation to creditors. enjoys the right of first-suit defense. The creditors of the company must first file a lawsuit or arbitration against the company. They can only claim their rights against the company when the company has no property to enforce. .
However, in practice, when creditors file lawsuits for repayment of corporate debts, most shareholders who have not contributed capital will be directly treated as co-defendants together with the company. Doing so will not only protect the interests of creditors, but also help save litigation costs and avoid the occurrence of contradictory rulings.
Regarding the defense opinion of the non-invested shareholders that the debtor is operating normally and has sufficient ability to repay the debt, it should be considered that the debtor's actual solvency is a matter of performance of the judgment. According to the nature of the supplementary liability, this should be used as a defense matter for in the liability determination stage. cannot be established.
Typical meaning:
Creditors have the right to request shareholders to bear supplementary compensation liability for the part of the company's debt that cannot be paid within the scope of uncontributed capital and interest.
... In this case, the court held that the capital contribution obligation of a real estate company had expired, and it subsequently transferred the equity. It cannot be exempted from its own capital contribution obligations. The actual solvency of the debtor is a matter of performance of the judgment. According to the nature of the supplementary liability, a real estate company cannot use this as a defense at the liability determination stage.
Case 5: In a case where Company is the person subject to execution, the People’s Court has exhausted all enforcement measures and has no property available for execution. If it has reasons for bankruptcy but does not apply for bankruptcy, the shareholders’ unexpired capital subscriptions shall expire at an accelerated rate
——Guo A certain person v. Li, Feng, and a certain technology company execution objection v. case
The referee’s opinion:
Under the registered capital subscription system, the law clearly stipulates two situations in which shareholders’ capital contributions accelerate the expiration, including the Enterprise Bankruptcy Law "Company bankruptcy situations stipulated in Article 35 of "Company Law Judicial Interpretation 2" and forced liquidation situations stipulated in Article 22, paragraph 1, of company dissolution.
In addition, when there is a valid judgment and the company's creditors apply for execution, if the company has exhausted the execution measures and has no property for execution, and has reasons for bankruptcy but does not apply for bankruptcy, the result will be the same as the Enterprise Bankruptcy Law "The company's assets as stipulated in Article 2 are insufficient to pay off all debts or the company obviously lacks the ability to pay off all debts. Therefore, in this case, the shareholders' capital contributions that have not expired can be made according to the provisions of Article 35 of the Enterprise Bankruptcy Law. Accelerated expiry.
However, in this case, in terms of the balance between the interests of individual creditors of the company and the interests of the overall creditors, considers that it is not a "bankruptcy proceeding" after all, so it favors individual creditors, that is, creditors whose accelerated maturities belong to the company. But this does not prevent other creditors from applying for bankruptcy of the company, nor does it prevent the company itself from applying for bankruptcy. Once bankruptcy is filed, shareholders whose capital contribution period has not yet expired should accelerate the expiration of their capital contributions and return them to the debtor's property to achieve fair repayment of all creditors.
Typical meaning:
If the company has exhausted all enforcement measures and has no property for execution and has reasons for bankruptcy, but does not apply for bankruptcy, the shareholder’s capital contribution shall be expedited.
…. In this case, the court held that if there is an effective judgment and the company’s creditors apply, In the case of execution, if the company has no property for execution after exhausting the execution measures and has reasons for bankruptcy but does not apply for bankruptcy, the result will be the same as that stipulated in Article 2 of the "Enterprise Bankruptcy Law". The company's assets are insufficient to pay off all debts or it is obvious that The lack of solvency is exactly the same. Therefore, in this case, in accordance with the provisions of Article 35 of the "Enterprise Bankruptcy Law", the unexpired capital subscriptions of shareholders will expire at an accelerated rate.
The "Minutes of the Nine People's Meetings" have stipulated this: "Under the registered capital subscription system, shareholders enjoy term benefits in accordance with the law. Creditors use the company's inability to pay off due debts as an excuse to request shareholders whose capital contribution period has not expired to pay within the scope of their unfinished capital contribution. The people's court will not support the company's supplementary compensation liability for debts that it cannot repay. However, the following circumstances are excluded:
(1) In cases where the company is the person subject to execution, the people's court has exhausted all enforcement measures and has no property available for execution. Reasons for bankruptcy, but do not apply for bankruptcy;
(2) After the company’s debts are incurred, the company’s shareholders (general meeting) resolves or otherwise extends the shareholder’s capital contribution period.
2. Company operation and corporate governance
Case 6: Review of the validity of investment resolutions related to intangible assets such as "star value" and "human capital"
- Li and a film and television company's dispute over the validity of company resolutions
The referee's opinion:
A limited liability company can exclude "the same company" through unanimous agreement of all shareholders. The "equal share rights" applies, and it can also be agreed that part of the capital contribution of one shareholder will be reflected in the form of capital reserve and will not be included in the company's statutory capital.
The "Company Law" does not have mandatory provisions on the proportion of capital contributed by shareholders of a limited liability company to the company's equity, nor does it clearly stipulate "same shares have the same price." The main manifestations of the principle of "same shares and same rights" are:
1. Same shares have the same price;
2. The same shares should correspond to the same voting rights;
3. The same shares should correspond to the same self-interest rights;
4. on every share The voting rights and income should be corresponding.
Article 34 of the "Company Law" is the provisions of the "Company Law" on the dividend rights and pre-emptive subscription rights of shareholders of limited liability companies. It clarifies that the dividend rights and pre-emptive subscription rights of shareholders of limited liability companies are based on "same shares, same rights" While being the principle, "agreement of all shareholders" can be used as an exception, which fully respects the autonomy of all shareholders; similarly, under the premise that the "Company Law" does not clearly stipulate "same price for the same shares" for limited liability companies, all shareholders The shareholders' joint agreement on capital contribution arrangements does not violate the mandatory provisions of the Company Law, nor does it violate the legislative intention of the Company Law to fully respect the autonomy of all shareholders in a limited liability company.
There is no direct provision on the capital reserve fund of a limited liability company in the Company Law, nor is there a mandatory requirement that shareholders’ investment in the company must be fully included in the company’s capital. The corporate accounting system stipulates that the portion of the paid-in capital contribution that exceeds the share of registered capital shall be included in the capital reserve .
The capital reserve fund in a joint-stock company mainly represents the premium obtained by the company from issuing shares exceeding the par value of the shares, while in a limited liability company it corresponds to the difference between the investor's investment and the registered capital. All shareholders of the company may agree to include shareholders' contributions in excess of the amount of subscribed capital into the capital reserve fund.
At the same time, all shareholders agreed on the rights and obligations of some shareholders based on their "star value", "human capital", "labor input", "technical support" and other intangible assets as stipulated in the cooperation agreement between shareholders. In this "intangible" In the case where the rights and obligations related to "assets" are not regarded as the company's statutory capital, the investment in "intangible assets" between shareholders does not necessarily depend on whether it can be transferred or whether it has been valued through intangible assets evaluation.
Typical significance:
Review of the validity of investment resolutions related to intangible assets such as "star value" and "human capital"
1. The application of the principle of "same shares, same rights", limited liability companies can except by unanimous agreement of all shareholders.
2. "Same shares, same price" does not restrict all shareholders of a limited liability company from agreeing that part of the capital contribution of one shareholder will be reflected in the form of capital reserve and will not be included in the company's statutory capital.
3. The content of the external investment resolution made by the board of directors of a listed company within the authority specified in the articles of association regarding the investment amount and equity ratio falls within the scope of the company’s autonomy based on business judgment and should not be based on the absolute amount of external investment and equity ratio. The asymmetry of proportions negates the effectiveness of the company's board of directors' resolutions, and the minority shareholders' claim that the board of directors' resolutions are invalid based on the "fairness principle" lacks factual and legal basis.
4. There is no mandatory requirement in the Company Law that shareholders’ investment in the company must be included in the company’s capital. All shareholders have stipulated in the cooperation agreement between shareholders the relevant rights and obligations of some shareholders based on their "star value", "human capital", "labor input", "technical support" and other intangible assets. In the case where the rights and obligations are not regarded as the legal capital of the company, the investment in "intangible assets" between shareholders does not necessarily depend on whether it can be transferred or whether it has been evaluated and valued by intangible assets.
Case 7: Although the signature is forged, the resolution that can prove to be the true expression of the shareholder's intention does not therefore become invalid
- Xue sued a cultural development company in a dispute over the validity of company resolutions
Judge's opinion:
Although the resolution signature is forged , but the resolution of the shareholders' meeting that has been ratified by the shareholders or is known and approved by the shareholders does not therefore become invalid.
The resolution of the shareholders' meeting is essentially an expression of intention made by the shareholders' meeting, the power authority of the company, on behalf of the company. It is a group legal act. The intention is often expressed by shareholders signing on the resolution to form an expression of intention. However, the perpetrator forged a written document signed by another person to form a resolution, which is enough to cause the resolution to fail to form an expression of intention or have no expression of intention, and lacks the requirements for establishment.
However, the reason why the resolution of the shareholders' meeting is invalid should be that the resolution of the shareholders' meeting is not the true expression of intention of the company's shareholders, and the non-signature is not signed by the shareholder himself. That is, the signature of the shareholder on the resolution is only a way to express the intention of the resolution. Forged signatures or Failure to sign does not automatically render the resolution invalid.
If the shareholders subsequently ratify the resolution or the resolution of the shareholders' meeting is made with the knowledge and consent of the shareholders, and is made in accordance with the expression of the group's will, then the only defense reason for the resolution being that the signature is forged or not signed cannot be established.
In practice, common situations include shareholders approving the resolutions of the shareholders' meeting, and shareholders performing corresponding obligations based on the resolutions of the shareholders' meeting.
Typical significance:
Issues on the validity of shareholders’ meeting resolutions not signed by the person
In this case, the time when Xue received money from others and his statement about it, changes in the company's industrial and commercial registration information, the company's operation and management, and equity holdings , the special family relationship between the two parties, the time when the lawsuit was filed, and the signatures in previous shareholders' meeting resolutions, etc., it can be seen that even if the signature on the shareholders' meeting resolution was not signed by Xue himself, he still has a certain influence on the equity transfer content in the shareholders' meeting resolution. He knows and agrees with it, so he only fails to claim that the resolution is invalid and should not be supported.
Case 8: failed to reasonably perform the reminder procedure, and the delisting resolution made in violation of legal procedures was not established
- A food and beverage company sued a trading company for the dispute over the validity of company resolutions
Judge's opinion:
The validity of the shareholder's delisting resolution should be determined based on Determine whether there has been a serious violation of investment obligations, whether the reminder procedures have been fulfilled, and whether the resolution procedures are legal.
Paragraph 1 of Article 17 of the "Judicial Interpretation III of the Company Law" stipulates that if a shareholder of a limited liability company fails to perform its capital contribution obligations or withdraws all capital contributions, and is urged by the company to pay or return the capital, but fails to pay or return the capital within a reasonable period, If the company removes the shareholder's qualifications by resolution of the shareholders' meeting, and the shareholder requests confirmation that the removal is invalid, the People's Court will not support it.
This article stipulates three applicable conditions and procedures for the delisting of a limited company.
First, it only applies to situations where there is a fundamental violation of investment obligations, that is, complete failure to invest and withdrawal of all investment . Failure to perform part of the investment obligations does not qualify as a delisting situation.
Of course, shareholders are the best guardians of the company’s interests. If other reasons for delisting are unanimously stipulated or resolved in the company’s articles of association or previous company resolutions, and have been foreseen and recognized by the relevant shareholders, it falls within the scope of corporate autonomy. The court It is not appropriate to dismiss its effectiveness simply.
Second, the company has fulfilled the preliminary procedures for reminders. Even if shareholders have met the statutory reasons for delisting, the company still has to make up for unfulfilled obligations to shareholders through reminders, which usually include specific circumstances of serious violations of capital contribution obligations and making corrections within a reasonable period. Capital contribution obligations, consequences of not eliminating the reasons for delisting, shareholders’ rights to explain and defend themselves to the company, etc. The shareholder's obligation to make up for capital contribution only needs to meet the triggering condition for elimination of delisting: "failure to fulfill capital contribution obligations or withdrawal of all capital contributions."
Third, convene a shareholders’ meeting through legal procedures and form a shareholders’ meeting resolution.The current company law does not have special provisions on shareholder delisting resolutions. If there is no special provision in the company's articles of association, the resolution must be passed by the company's shareholders representing more than half of the voting rights.
However, regarding whether the expelled shareholder has voting rights , you can refer to the provisions of the "Company Law" on the restrictions on the voting rights of affiliated shareholders. The expulsion resolution is similar to the resolution of external guarantee. The content of the resolution has a direct interest relationship with the expelled shareholder, so restrictions on expulsion can be considered. shareholders' voting rights, but it should be noted that the rights of the removed shareholders to receive meeting notices and participate in the meetings should not be excluded.
Although shareholders who have not contributed capital do not have the right to vote on whether to remove themselves from the company, they have the right to participate in the meeting and defend the reasons for their failure to contribute capital. The company cannot not notify shareholders to participate in the review process of the meeting on the grounds that they have an interest in the matters to be considered at the meeting but do not have the right to vote.
Typical meaning:
Standardizes the application of the shareholder removal system
... Judicial intervention must comply with the company's autonomy, and the company's removal of shareholders must be based on the resolution of the shareholders' meeting; judicial intervention is a supplement to the company's autonomy, and the company must not dispose of the shareholders' equity at will. , strict prerequisites and pre-procedures are effective barriers to prevent the delisting system from being abused, and the entities and procedural requirements related to delisting are indispensable; at this time, timely judicial intervention is needed to restore the efficiency of corporate governance...
Case 9: In principle, the shareholders’ request to inspect the original accounting documents will not be supported.
- Cai v. a machine tool company over the shareholder’s right to know case. Judge’s opinion:
In principle, shareholders have no right to request to inspect the original accounting documents, but they have evidence. Prove that the accounting books are untrue and incomplete, except for those that require inspection.
Among the company’s specific documents and materials, accounting books should be a type of operating information. Accounting vouchers and accounting books are both related and relatively independent, and are not the same concept. The Company Law only limits financial accounting reports and accounting books to financial information that shareholders can consult, and does not involve original accounting documents.
During the drafting process of the judicial interpretation of the "Fourth Judicial Interpretation of the Company Law", the issue of whether the scope of shareholders' right to know should include accounting documents was touched upon. However, in the final adopted article, the issue that shareholders can access accounting documents was deleted. Provisions on Credentials.
In practice, it is not uncommon for disputes involving shareholders to request access to original accounting documents. Whether this falls within the scope of shareholders' right to know is often the core issue in disputes in cases.
The setting of the scope of the right to know involves the balance between the rights of shareholders and the interests of the company. The exercise of the right to know by shareholders should have reasonable limits and must not harm the interests of the company and other shareholders. Therefore, when determining the reasonableness standard for shareholders’ right to know claims in individual cases, there is no Materials expressly provided for by law should be handled with caution, and interpretation should not be expanded beyond the provisions of the law.
Unless the company's articles of association, shareholders' meeting resolutions and other relevant provisions clearly give shareholders the right to inspect the original accounting documents, the original accounting documents should be treated differently from the accounting books, with non-support as a principle and support as an exception.
According to the first paragraph of Article 15 of the Accounting Law, “accounting book registration must be based on audited accounting vouchers.” That is to say, the accounting books are produced based on the original vouchers, and the accounting vouchers are the basis of the accounting books. Therefore, usually, querying the accounting books can satisfy the shareholders' request to understand the company's financial information. At this time, it is often not possible to consult the original accounting vouchers. necessity.
However, sometimes it is difficult for accounting books to reflect the company's financial information in detail, truly and completely, and it is also difficult for shareholders to make objective judgments on the company's operating conditions and the management activities of senior executives based solely on accounting books. At this time, allowing shareholders to review the original vouchers and compare them with the accounting books will be more conducive to shareholders to make suggestions and inquiries and exercise their right to know.
In short, since the current legal provisions do not involve original accounting vouchers such as accounting vouchers, shareholders' requests to review the original accounting vouchers will generally not be supported. However, shareholders must review the accounting books if they have evidence to prove that the accounting books are untrue and incomplete. Except for original accounting documents.
Typical meaning:
For documents not stipulated by law, the limits of the scope of shareholders’ right to know
… In this case, the original accounting documents are not necessary materials for shareholders to understand the company’s financial status. Shareholders can completely consult the company’s financial accounting report To exercise the right to know and the accounting books, if the shareholder fails to provide evidence to prove that the financial accounting report and accounting books are untrue or incomplete and requires access to accounting vouchers, the shareholder's request for access to the original accounting vouchers may not be supported.
Case 10: defective investment shareholders have the right to know, and successor shareholders also have the right to know the information before they joined the company
- Wang Mou v. a mechanical engineering company shareholder's right to know dispute case
Judge's opinion:
The company cannot Neither shareholders with defective capital contributions can be denied the right to exercise their statutory right to know, nor can shareholders who join the company be denied the right to know the information that existed before they joined the company.
Shareholders should have shareholder status when filing a right-to-know lawsuit, which mainly includes shareholders who have been registered with the industrial and commercial registration and have publicity effect, and shareholders who have not been registered with the industrial and commercial registration but are clearly recorded in the company's shareholder list. Shareholders' right to know is an inherent right of shareholders mandated by law and is not affected by whether they actually contribute capital.
Although the Third Judicial Interpretation of the Company Law restricts the rights of shareholders with defective capital contributions, the rights restricted are mainly property rights. Since defects in capital contributions will inevitably affect the operating income of a company based on capital, defective capital contributions are Restricting the property rights of shareholders is a necessary measure to urge their investment and balance their rights and obligations with those of actual investors.
However, the right to know, as a type of shareholder’s personal rights, is one of the most basic and basic rights of shareholders. Even if the investment is defective, shareholders who have completed industrial and commercial registration or are in the shareholder register will not lose their status as shareholders, so they are informed. Rights should not be deprived due to defects in investment. Whether
is actually and fully funded is not within the scope of judicial review. For shareholders with defective capital contributions, the law also gives the company the right to pursue responsibilities related to failure to contribute capital or insufficient capital contribution. As for the time frame within which shareholders enjoy the right to know, it should be determined that shareholders have the right to know the relevant company information before joining the company after they join the company.
First of all, the "Company Law" does not prohibit this; secondly, the establishment of shareholders' right to know is to enable shareholders to fully understand the company's information, management activities and risk status, thereby supervising company management and protecting the legitimate rights and interests of shareholders. Only when shareholders have a full grasp of the company's operating conditions and a comprehensive understanding of the company's history can they effectively exercise other shareholders' rights and perform shareholder obligations;
Finally, company operations are an overall, dynamic, and continuous process. If the company's decisions are rejected, Subsequent shareholders' access to company information before joining the company may result in incomplete relevant information obtained by shareholders, thereby reducing the institutional value of shareholders' right to know.
Typical meaning:
A company cannot refuse shareholders with defective capital contributions to exercise their statutory right to know, nor can they deny shareholders the right to know information before joining the company after they join the company.
The legal restrictions on the rights of defective shareholders should mainly be the right to request profit distribution and new shares. Property rights such as preemptive subscription rights and rights to request the distribution of remaining property, as long as they are shareholders listed in the shareholder list or industrial and commercial registration, they still enjoy the status of shareholders.
If a limited company uses the shareholder's defective capital contribution and non-participation in the company's operations as a defense, it should not be supported. Even if the company has made a resolution to remove shareholders , before the industrial and commercial change registration, if the shareholders do not approve and the effectiveness of the resolution to remove shareholders has not yet been determined, it is still inappropriate to assume that the shareholders have lost their status as shareholders and do not enjoy the right to know.
In addition, if subsequent shareholders of the company are denied access to and copy of company information before joining the company, it may result in incomplete relevant information obtained by shareholders, thus reducing the institutional value of shareholders' right to know. Therefore, the company's early information is also related to the interests of shareholders, and shareholders should have the right to know.
3. Company equity transfer and external guarantee
Case 11: Judicial determination of the effectiveness of anti-dilution and other special clauses in the private equity fund investment agreement
- An investment company v. Lin’s equity transfer dispute case
Judge’s opinion:
1. shareholder The internal agreement on the order of profits distributable to shareholders falls within the scope of internal autonomy of the company and is not necessarily invalid. The agreement between the investor and the company's shareholders that "the investment company shall give priority to distribution to shareholders before other shareholders" is a unanimous expression of intention among the shareholders regarding the order of distribution, and does not violate the provisions of Article 186 of the Company Law. Should be valid.
2. Private equity fund agreements usually stipulate restrictive clauses on equity such as equity resale rights, anti-dilution, and liquidation priority rights. These are unanimous expressions of intention among shareholders and should not be deemed to be binding unless they violate other mandatory laws and regulations. invalid.
3. A gambling agreement is not invalid just because the signing party includes the target company. The rights and obligations of the target company in the gambling agreement should be determined on a case-by-case basis.
4. triggers the repurchase condition in the gambling clause, and the transferor shareholder shall bear the repurchase obligation. However, the target company or the transferor shareholder cannot be directly determined to bear breach of contract liability to the investor for this reason.
Typical meaning:
The validity of the special terms of the gambling agreement and its impact on the repurchase obligation
…. The arrangement of special terms presented in the private equity investment transaction agreement is not without controversy in the field of judicial trials. According to the ideas and concepts of the "Minutes of the Nine People's Conference" in reviewing gambling clauses, the effectiveness of special clauses cannot be denied in general. The People's Court should review the specific content and implementation of relevant special clauses on a case-by-case basis in accordance with the "Company Law" and other relevant provisions to see whether they violate the "Company Law" and other relevant provisions. Company Law and other mandatory provisions.
In judicial practice, it is necessary to be careful not to apply the concept or only use the title to mean it. It is necessary to pay attention to the review of the specific rights and obligations agreement and the essence of the legal relationship, and beware of "variations".
In short, judicial intervention in the field of contracts is not to break the original relationship, but to reflect as much as possible the respect for existing commercial relationships, the encouragement and tolerance of commercial transaction models, and the maintenance of the autonomy of the parties, the spirit of the contract, and the market order. .
Case 12: The right to terminate the equity transfer agreement should be exercised within a reasonable period
- Li v. Feng et al. Equity Transfer Dispute Case
The referee’s opinion:
The right invalidation rule, as a derivative rule of the principle of prohibiting the abuse of rights, is included in the contract The exercise of the right of rescission plays the role of limiting the period of exercise of the right of rescission.
The right to terminate a contract is a formation right, which can cause a civil legal relationship to be created, changed or eliminated according to the will of one party. The exercise of this right will cause major changes in the contractual relationship. If the party with the right to terminate does not exercise the right to terminate for a long time, This will leave the contractual relationship in a state of uncertainty for a long time, affecting the enjoyment of rights and the performance of obligations of both parties to the transaction. Therefore, from the perspective of balancing interests and maintaining transaction security, it is necessary to limit the exercise period of the right to terminate.
It is noteworthy that paragraph 2 of Article 564 of the Civil Code stipulates that "if the law does not stipulate or the parties have not agreed on a time limit for the exercise of the right to terminate, the person with the right to terminate shall not exercise it within one year from the date when the person with the right to terminate knows or should know the reason for the termination. , or if the other party fails to exercise it within a reasonable period after being urged by the other party, the right will be extinguished. "This provision elevates judicial experience to legislation, and further improves the issue of the time limit for the exercise of the right to terminate a contract in the Civil Code.
Typical meaning:
The equity transfer contract stipulates a reasonable period for exercising the right to terminate the equity transfer
…. In this case, combined with the principle of prohibiting the abuse of rights, the reasonable periodfor exercising the right to terminate the equity transfer contract is determined asshould not exceed the expiration of the payment period for the consideration for equity transfer. Certain period .
Case 13: investors enjoy fixed income, do not participate in the company's operations, and repurchase at zero consideration when the creditor's rights are realized, which should be a guarantee for equity transfer rather than equity transfer
- A hotel company v. an investment company in a private lending dispute case
Referee's opinion:
Determination of "famous stocks and real debt" : The investor enjoys fixed income and does not participate in the company's operations, and the combination of repurchasing the equity at zero consideration upon maturity can be determined as a loan relationship and equity transfer guarantee rather than equity. transfer.
The equity transferee and the transferor agree that after the transferee transfers the equity, the underlying equity held by it will still be managed by the transferor shareholder. If the transferee receives equity income, it should pay it to the transferor shareholder, regardless of whether the transferor shareholder receives it or not. For equity income, profits and income should be paid to the transferee regularly, on time and in fixed amounts. The two parties agree that when the transferee borrows money, the transferor shareholder will repurchase the equity at zero consideration.
At this time, the equity transferee has no true intention to purchase the subject equity involved in the case and bear the corresponding equity risks. The true purpose of the transaction between the two parties is to provide "equity transfer guarantee" for the relevant loans. At this time, the relationship should be based on the lending relationship. Provisions are made for trial rather than the equity transfer relationship. For the trial of equity transfer guarantee cases, the validity of the equity transfer should be judged in accordance with the provisions of the "Ninth People's Conference Minutes" and the "Interpretation of the Guarantee System of the Civil Code".
Typical meaning:
"Famous stocks and real debts" are the standards for the identification of equity transfer guarantees
.... In equity transfer guarantees, a dispute that often arises is that the parties agree that when the loan is not repaid within a certain period, When a breach of contract occurs, the transferee will directly enjoy the equity, and whether it is valid. In this regard, we should refer to the relevant spirit of transfer guarantees in the "Minutes of the Ninth People's Congress" and the "Interpretation of the Guarantee System of the Civil Code".
Case Fourteen: Listed companies’ external guarantees are not applicable to the exception of resolution-free guarantee
- A financial leasing company sued an environmental protection joint-stock company, Wang Moumou, a third party, a machinery company, and a bank branch for a guarantee contract dispute case
Referee’s opinion:
The exception that a company’s external guarantee does not require an agency resolution does not of course apply to listed companies. If the counterparty fails to enter into a guarantee contract based on the internal resolution disclosed by the listed company, and the listed company claims that it does not assume guarantee liability, it should be supported.
This is because there are obvious differences between listed companies and non-listed companies in terms of providing guarantees for others:
First, the social impact of illegally signing guarantee contracts is different, and the affected stakeholders are different. If listed companies provide external guarantees in violation of regulations, it will affect the interests of shareholders and hinder the healthy development of my country's securities market. The rights and interests of small and medium-sized investors in listed companies will be threatened. Non-listed companies are not public companies and generally will not have a significant impact on society;
Second, there are different regulations on whether guarantee contracts require public disclosure. All matters in which listed companies provide guarantees for others must be publicly disclosed. For unlisted companies, in view of the relative nature of the contract, external guarantees provided by unlisted companies will not affect the interests of other people, so there is no requirement for disclosure.
Therefore, considering that listed companies are public companies, external guarantees provided by listed companies will affect the interests of shareholders and potential shareholders. If they provide illegal guarantees, they will affect the healthy development of the securities market. Therefore, the company’s external guarantees do not require an exception from the agency resolution. It does not certainly apply to public companies such as listed companies.
Articles 8 and 9 of the "Interpretation of the Guarantee System of the Civil Code" that will be implemented in 2021 have made new provisions on the issue of external guarantees by listed companies. This judicial interpretation should prevail for this issue.
Typical meaning:
... Therefore, regarding the issue of external guarantees of listed companies, this judicial interpretation should now prevail.
IV. Responsibilities of shareholders, directors and senior managers
Case 15: Directors’ actions that do not cause direct damage to the interests of shareholders are not deemed to have harmed the interests of shareholders
- An investment center sued Liu, Ma, Gao, Case of liability dispute between Zhou and a third party, a cultural development company, for harming the interests of shareholders
Judgment opinion:
According to Article 4 of the "Company Law", shareholders of a company shall enjoy the rights of asset income, participation in major decisions and selection of managers and third party rights. The shareholders stipulated in Article 14 shall receive dividends, etc. according to the proportion of their paid-in capital contribution. The shareholders of the company can only enjoy the rights to receive dividends, distribute residual property and other equity rights in accordance with the provisions of the company law and the company's articles of association, that is, the company's property and the shareholder's property are separated.
Only when directors and senior managers violate the provisions of laws, administrative regulations or company articles of association and carry out actions that directly harm the interests of shareholders, shareholders can sue to protect their legitimate rights and interests.
Therefore, even if a director’s violation of the company’s articles of association may lead to an increase in the company’s debts, there are many reasons why the debts cannot be repaid, and even if the debts cannot be repaid, it will only constitute a loss for the company and only indirectly damage the interests of shareholders, and is not related to shareholders. There is no direct causal relationship between one's own property rights.
Shareholders require directors to compensate for their losses based on the "equity ratio" they enjoy in the company. This is confusing the subject of the "loss" and violates the basic principle that shareholders only bear "limited liability" with their capital contributions, and should be rejected.
Typical meaning:
A lawsuit in a dispute that damages the interests of shareholders requires direct damage to the interests of shareholders
This case is a typical case in disputes that damages the interests of shareholders. If a shareholder files a lawsuit on the grounds that his own interests are damaged, he first needs to pay attention to distinguishing between damage to the interests of shareholders and There are two situations in which the company's interests are damaged. If the interests of shareholders suffer indirect losses due to damage to the company's interests, in principle, the company should be the plaintiff to file a lawsuit for liability disputes that damage the company's interests. In exceptional circumstances, shareholders can file a shareholder representative lawsuit.
Only when the interests of shareholders are directly harmed, shareholders can file a lawsuit in their own names for harming the interests of shareholders. If the company's interests are harmed and shareholders directly equate the company's property damage to the company's shareholders' loss of interests based on their own equity ratios, this will not be supported.
Case 16: Determination of the liability of company’s senior managers for breach of non-compete obligations
- A case of liability dispute between a heating company sued Li for harming the company’s interests
Referee’s opinion:
If a company’s senior managers violate their non-compete obligations, when When tort liability and breach of contract liability coincide, the court shall explain to the plaintiff and require it to clarify the basis of the right of claim; if it still cannot be determined after the explanation, the people's court shall determine it; after the basis of the right of claim is determined, the people's court shall determine the composition of the liability according to the determined The essentials shall be reviewed and shall not be confused with another responsibility.
According to the source of obligations, the non-compete obligations borne by senior managers are divided into the obligations stipulated in the Company Law and the obligations stipulated in the labor contract. Tort liability for harming the company's interests and liability for breach of contract for violating the labor contract.
Therefore, from the analysis of the elements and differences between the two types of liability, during the existence of the labor relationship, if a senior manager enters into a non-competition clause with the company and the agreed non-competition behavior is a non-competition behavior stipulated in the "Company Law" , Certain violations of non-competition obligations by senior managers during their employment can conceptually constitute breach of contract and infringement for the company, thus giving rise to Articles 23 and 24 of the Labor Contract Law and the Company Law. Articles 147, 148(5), and 149 are in conflict with each other.
Whether the basis of the claim for requiring senior managers to bear liability for breach of non-competition obligations is based on breach of contract liability or tort liability, should first clarify the basis of the claim. After the basis of the claim is determined, the People's Court shall review it in accordance with the corresponding liability elements. It must not be confused with another liability; finally, if the company requires senior managers to bear liability for breach of contract based on the labor relationship agreement on non-competition, it should follow the prerequisites for labor dispute arbitration procedures.
Typical meaning:
When company executives violate non-compete obligations, the basis of claims should be clearly defined when responsibilities conflict.
...There is a difference between the non-compete obligations in the "Company Law" and the non-competition obligations in the "Labor Contract Law":
1. The nature of obligations is different.
The non-competition obligation in the "Company Law" is a legal obligation; The binding subjects are limited to directors and senior managers; in the "Labor Contract Law", it is limited to senior managers, senior technical personnel and other persons with confidentiality obligations of the employer;
3. The content of the obligations is different.
Competition in the "Company Law" The content of non-competition obligations is clearly stipulated by law; the content of non-competition obligations in the Labor Contract Law is negotiated between the employee and the employer, and the content of the obligations can be negotiated and agreed upon without violating the provisions of laws and administrative regulations;
4. The validity period of obligations is different.
The "Company Law" stipulates that the validity period of non-competition obligations is during the obligor's term of office; in labor relations, it can be agreed that it can be continued during the existence of the labor relationship or after the termination of the labor relationship. be agreed upon;
5. The forms of liability after breach of obligations are different.
Violation of the provisions of the Company Law on non-competition obligations is reflected in the tort liability of the obligor to the company; in the Labor Contract Law, non-competition obligations are contractual obligations, so Its liability form is embodied in liability for breach of contract.
In specific cases, on the one hand, attention should be paid to determining whether there is competition and cooperation based on the circumstances of the case. On the other hand, attention should be paid to examining the respective constituent elements of tort liability and breach of contract liability. At the same time, special attention should be paid to the pre-arbitration procedures for labor disputes. Require.
In this case, although the agreement signed by Mr. Li stipulates that he shall not violate the non-competition clause within one year after leaving his job, the company has determined that it is in accordance with the provisions of the Company Law regarding senior managers' fault in performance of duties that cause damage to the company. If Li is liable for compensation, the court should examine whether he has implemented agreed and statutory prohibited behaviors or preparatory behaviors that violate non-competition obligations during his employment, and will not review his behavior after leaving the company.
Senior managers of the company will not assume their duties of loyalty and diligence as stipulated in the Company Law as senior managers after their resignation, and their relevant behaviors may only violate the agreements between the two parties in the labor contract.
Case 17: determined that the company's senior managers violated the requirements of loyalty and diligence and had subjective gross negligence
- A dispute between a human resources company and Wu for damage to the company's interests
Judge's opinion:
The attribution of the cause of infringement action In principle, the behavior of executives who violate their duties of loyalty and diligence and cause damage to the company does not fall into the special torts applicable to the no-fault liability principle stipulated in my country's Tort Liability Law. Therefore, it is appropriate to apply the fault liability principle. The determination that
violated the obligations of loyalty and diligence and harmed the interests of the company requires that senior managers have intentional or gross negligence.
As long as the senior executives have exercised appropriate and reasonable care for their actions in their hearts, played a management role in accordance with the company's daily operating mode, conscientiously implemented company decisions according to the company's decisions, and believed in good faith in the actions, opinions and information provided by other company personnel. If the information is true and credible, and the actions taken based on it are in the interests of the company, even if there is some negligence, the court should not interfere too much with the company's internal actions.
Only by combining the specific circumstances of the case and measuring it based on a combination of subjective and objective standards, and when it is obviously gross negligence and intentional, can it be directly determined that the behavior of an executive constitutes a violation of the obligations of loyalty and diligence.
Of course, the duty of care of executives should be higher than the general duty of care and the duty of care of ordinary employees, and their management powers should belong to the special duty of care. For matters that have a significant impact on the company's production and operation and involve large amounts of money, senior executives' duty of care should be higher.
Typical significance:
The subjective elements of an executive’s breach of loyalty and diligence obligations and harming the interests of the company
… This case clarifies the constituent elements of this type of infringement, especially the subjective elements of the executive’s infringement, which is typical.
5. Company dissolution and liquidation
Case 18: The statute of limitations for liquidation and repayment liability begins when the creditor knows or should know that the company cannot be liquidated
- A management company sued shareholders Dong and Sun for damage to the company's creditors' interests, a dispute over liability
Judicial opinion:
If a creditor claims that the liquidation obligor bears joint and several liability for repayment, the statute of limitations shall run from the time when the creditor knows or should have known that the company cannot be liquidated, and the liquidation obligor shall bear the burden of proof.
Paragraph 2 of Article 16 of the Minutes of the Nine People's Meetings stipulates that a company's creditors require shareholders of a limited liability company to assume joint and several liability for the debts of the company based on paragraph 2 of Article 18 of the Judicial Interpretation II of the Company Law. , the statute of limitations period is calculated from the date when the company's creditors know or should know that the company cannot be liquidated.
If the company has not undergone compulsory liquidation or bankruptcy liquidation, the creditors will directly sue the liquidation obligor to bear the liability for liquidation and repayment. If after review, there is indeed a situation that cannot be liquidated, and the liquidation obligor uses statute of limitations to defend, the liquidation obligor should provide evidence to prove the creditor. When it becomes known or should have become known that the liquidation obligor has failed to perform its liquidation obligations, resulting in the company being unable to liquidate, the statute of limitations shall begin to run from that point on.
If the liquidation obligor fails to provide evidence as to the point at which the creditor knew or should have known that the company could not be liquidated, and the creditor states that it did not know until the shareholder made it clear during the first instance hearing that the company could not be liquidated, the statute of limitations for litigation shall run from the time of the first instance hearing.
Typical significance:
Clear the starting point of the statute of limitations for liquidation and repayment liability and the burden of proof
…..The "Minutes of the Nine People's Meetings" stipulate that if shareholders are required to bear joint and several liability for the company's debts, the statute of limitations period shall begin when the company's creditors know or should know It is calculated from the date when the company becomes unable to liquidate. After the release of the "Minutes of the Nine People's Meetings", the judgment standards for this issue were unified.
In addition, regarding the issue of the burden of proof, the judgment in this case provides a trial idea , which holds that the liquidation obligor should provide evidence to prove when the creditor knew or should have known the fact that the liquidation obligor failed to perform its liquidation obligations, resulting in the company being unable to liquidate. The statute of limitations is calculated from the date when liquidation cannot be carried out...
Case 19: The standard for determining excessive shareholder control over the company in the denial of legal personality of a company
——Review of a case involving a wire company suing a shareholder of an electrical equipment company for harming the interests of the company's creditors
Judge Viewpoint:
If the parent company excessively controls its wholly-owned subsidiaries, transfers customer resources to itself without consideration, and harms the interests of creditors, it should bear joint and several liability for the debts.
If a parent company wholly owns a subsidiary, it shall fully respect the independent will of its subsidiary and protect the interests of the subsidiary's creditors.
In judicial practice, it is used to take advantage of the absolute control over a subsidiary to transfer the subsidiary's important customer resources to its own name without consideration during the shareholding period, resulting in a decline in the subsidiary's solvency, thereby harming the subsidiary's creditors. If the creditor's rights are paid, it can be determined that the parent company has abused the independent status of the company's legal person and the limited liability of shareholders, seriously harming the interests of the company's creditors, and it should bear joint and several liability for the debts.
This situation meets the constitutive requirements of excessive shareholder control over the company in the denial of corporate personality. The judge should accurately apply the ruling on excessive shareholder control:
First, the shareholder exercises dominant and absolute control over the subsidiary company; Second, this This kind of control behavior does not have a legitimate purpose and involves subjective fault; third, there is a causal relationship between the shareholder control behavior and the damage to the subsidiary company's creditor's rights.
Typical meaning:
Determination of shareholders’ excessive control over the company in the denial of corporate legal personality
….. The key to determining excessive control is whether the shareholders have exercised undue influence through their control over the company, causing the company to lose its independent will and interests. It has become a tool for shareholders to seek profits and seriously harmed the interests of the company's creditors. For example, in this case, the company's shareholders used their absolute control over the subsidiary to sell important customers of the subsidiary without consideration during the short period of stockholding without the consent of the shareholders' meeting. Transferred to one's own name, resulting in a decline in the subsidiary's solvency, thereby damaging the subsidiary's creditor's repayment, which meets the requirements for excessive control.
Case 20: has not exhausted the remedies, and will not support a lawsuit filed to dissolve the company at the early stage of the conflict between shareholders
- An economic and trade company sued a consulting company for company dissolution case
Judge's opinion:
Company as a market operating entity Playing a vital role, it is even more important to maintain the stability of market transactions. The dissolution of a company means the end of the company's operating entity, so we should be more cautious. Unless it is absolutely necessary, we must not dissolve the company at will.
"What cannot be solved through other means" is a prerequisite for judicial dissolution. When conflicts begin to arise between shareholders, they should first be resolved through methods such as corporate autonomy. Problems that arise in the company's operations should first be resolved through consultation, civil litigation or administrative regulations.
Moreover, the determination of deadlock at the shareholders' meeting has duration requirements. The state in which the shareholders' meeting cannot be convened and effective shareholders' meeting resolutions cannot be made must last for more than two years.
After new shareholders join the company, it is inevitable that they will have conflicts with the original shareholders in terms of business philosophy. It is inevitable that short-term or occasional inability to hold normal meetings and make effective resolutions will not be possible. Such short-term or accidental operating difficulties should be avoided. It is a normal state of the company. Just because the company's shareholders meeting cannot convene a meeting within a short period of time or make effective resolutions cannot constitute a deadlock.
Therefore, if the remedies are not exhausted and the shareholders file a lawsuit to dissolve the company at the early stage of conflicts, they should not be supported.
Typical meaning:
Criteria for identifying "cannot be resolved through other means" in company deadlock
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