A Co., Ltd. was listed on the Shanghai Stock Exchange in August 2000. The board of directors of the Company held a meeting on March 28th, 20001. The meeting was held as follows: The board of directors of Company A consists of seven directors. The directors present at the meeting were Zhang, Li, Wang and Ding; Director Sun was unable to attend the meeting due to overseas inspection; Director Zhang was entrusted to attend and vote by telephone because he was unable to attend the People's Congress. Director Liu was unable to attend the meeting due to illness, so he entrusted Secretary of the Board Dong to attend and vote on his behalf. At the same time, Xia Mou, supervisor of Company A, attended the meeting. After the board of directors discusses the relevant contents, the minutes of the meeting shall be signed by all directors and supervisors attending the board meeting and filed.
(1) Does the number of directors attending the board meeting comply with the law? And explain why.
(2) Is it valid for Director Liu to entrust others to attend the board meeting? And explain why.
(3) Are there any irregularities in the minutes of board meetings? If yes, please point out.
Analysis (1) The number of directors attending the board meeting is in compliance with the regulations. Because the company law stipulates that the number of directors attending the board meeting must exceed 1/2 before it can be held.
(2) It is illegal for the director to entrust Director Zhang to attend the meeting on his behalf by telephone. Because, if a director is unable to attend the board meeting for some reason, he may entrust other directors to attend in writing. Here, telephone entrustment is not a written entrustment method.
(3) Director Liu entrusted Secretary Dong to attend the board meeting, which did not comply with the law. When a director is unable to attend the board meeting for some reason, he can only entrust other directors to attend, but can't entrust someone other than the director to attend on his behalf.
(4) There are two irregularities in the minutes of the board meeting. First, the minutes of the meeting should be signed by the meeting recorder; II. The minutes of the meeting need not be signed by Xia Mou, the supervisor who attended the meeting.
Case 2
1At the end of 1996, a company in Shandong and a company in the UK invested 60 million yuan to set up a hotel (organized as a limited liability company), with the British holding 50% of the shares. 1At the end of 999, the British company in Britain went bankrupt and planned to transfer its equity to pay off its debts. The British side first sold its 50% equity to the Chinese side for 35 million yuan. The Chinese side thought the asking price was too high and did not accept it. Later, it was introduced that the British side discussed the equity transfer with the development company. After repeated negotiations, a resolution was reached to unconditionally transfer 50% of the equity according to the original investment amount (namely 30 million yuan). The two sides drew up an equity transfer agreement and reported it to the government department. After a company in Shandong learned of this incident, it believed that the British side had no right to transfer its capital contribution to a third party at a low price, and negotiated with the British side and a development company in Jiangsu Province, requesting to terminate the transfer agreement and inherit the British equity on the same terms. The British side believes that the Chinese side (a company in Shandong) was consulted in advance for the equity transfer, and other transferees were sought only when the Chinese side did not accept it; After the transfer agreement is reached, China demands the transferee and refuses it unreasonably. The Chinese side then filed a lawsuit in the court, requesting to confirm that the transfer agreement was invalid.
Resolution (1) The transfer agreement in this case is invalid. According to the relevant laws and regulations of our country, if a party to a joint venture transfers all or part of its capital contribution to a third party, it must obtain the consent of the other party to the joint venture and be approved by the examination and approval authority. In violation of this provision, the transfer agreement is invalid. In this case, the transfer of investment between China and Britain to a third party (a development company in Jiangsu) is invalid without the consent of the other party (a company in Shandong).
(2) legal. According to the relevant laws and regulations of our country, if one party to a joint venture transfers all or part of its capital contribution to a third party, under the same conditions, the other party to the joint venture has the preemptive right. It can be seen that the request of a company in Jiangsu in this case is legal.
(3) no. According to the relevant laws and regulations of our country, the registered capital of the joint venture company shall not be reduced during its existence. Therefore, the British side cannot withdraw its investment to pay off its debts.
Case 3
A textile co., Ltd. was dissolved by a resolution of the shareholders' meeting due to major changes in the market and the inability to achieve the expected economic benefits by continuing to operate. The shareholders' meeting elected five directors (shareholders of the company), including Zhang, Wang, Li, Zhao and Chen, to form a liquidation group. The liquidation group shall notify creditors of the dissolution and liquidation of the company within 10 days of the company's establishment, and make three announcements in the newspaper within 60 days. Creditors A and B declare their claims to the liquidation group two months and three and a half months respectively from the date of the first announcement. Party A, Party B, Party C and Party D have all provided the liquidation group with proof materials about creditor's rights, while creditor E has never declared creditor's rights. After cleaning up the company's property, the liquidation group proposed liquidation plan. The liquidation sequence is as follows: first pay the liquidation expenses, then pay the tax owed, first pay off the loans of creditors A (bank) and B (credit union), then pay off the debts of other creditors C, D and E, and then pay the employees' wages and labor insurance expenses. Because the company's remaining property is not enough to pay all employees' wages and labor insurance expenses after paying off debts, it will be paid in proportion.
What of the above materials do not comply with the provisions of the company law? And explain why.
Analysis (1) Creditor B declared his creditor's rights within 35 days after receiving the notice, and Creditor D declared his creditor's rights three and a half months after the date of the first announcement, which has exceeded the statutory filing date. Creditor e has never declared his creditor's rights, that is, they B, D and E have lost the right to compensation, so it is incorrect for the liquidation group to list them as creditors who can be compensated in the liquidation plan.
Because: The Company Law stipulates that the liquidation group shall notify creditors within 10 days from the date of its establishment and make at least three announcements in the newspaper within 60 days. Creditors shall, within 30 days from the date of receiving the notice, and within 90 days from the date of the first announcement if they have not received the notice, declare their claims to the liquidation group.
(2) In the materials, the company's property is not enough to pay off debts, but the liquidation team still proposed that liquidation plan did not apply to the court for bankruptcy, which did not comply with the provisions of the company law.
Because: after liquidation due to the dissolution of the company, the liquidation team, after clearing the company's property, compiling the balance sheet and list of property, finds that the company's property is insufficient to pay off its debts, and should immediately apply to the court for bankruptcy.
(3) According to the provisions of the Company Law, the liquidation expenses of the company's property should be paid first, and then paid in the following order: employees' wages and labor insurance expenses; Pay the taxes owed; Pay off the company debt. This shows that it is wrong to pay taxes first (after paying liquidation expenses), then pay off the company's debts, and then pay employees' wages and labor insurance expenses.
(4) When paying off debts, B, D and E, who failed to declare their creditor's rights, cannot be compensated, and loans and other creditor's rights of banks and credit cooperatives should be compensated in the same order.