Time: 20 10-6-29? 9:08:36?
Core Tip: Plaintiff: Xie Mou Defendant: Shanghai King Kong Foundry Co., Ltd. Zhang? 1997 10 In June, the defendant Zhang and Shanghai Lixin Industrial Co., Ltd. (hereinafter referred to as Lixin Company) jointly established Shanghai Jingang Foundry Co., Ltd. (hereinafter referred to as Jingang Company) with a registered capital of US$ 3 million. Lixin Company provides 39.5 mu of land, and Zhang owns 100% of the shares. After the establishment of King Kong Company, Zhang transferred 20% of his shares to the plaintiff, who ...? Plaintiff: Xie Mou?
Defendant: Zhang, Shanghai Jingang Foundry Co., Ltd..
1997 10 In June, the defendant Zhang and Shanghai Lixin Industrial Co., Ltd. (hereinafter referred to as Lixin Company) jointly established Shanghai Jingang Foundry Co., Ltd. (hereinafter referred to as Jingang Company) with a registered capital of US$ 3 million. Lixin Company provides 39.5 mu of land, and Zhang owns 100% of the shares. After the establishment of King Kong Company, Zhang transferred 20% of his shares to the plaintiff, and the plaintiff remitted $392,908.64 to King Kong Company. According to the business license of King Kong Company on June 10, 2000, the registered capital was actually USD 500,000. From June 1999 to March, 2000, the plaintiff and Zhang held many discussions on share repurchase. On March 13, 2000, the board of directors of King Kong Company made two resolutions, A and B (hereinafter referred to as 3? 13), which stipulated the scheme of equity transfer and payment of transfer money. ?
According to the statement in the original trial, if Zhang fails to make capital contribution as agreed in the contract and articles of association, the plaintiff's capital contribution shall be regarded as his personal capital contribution for capital verification. After the plaintiff and the two defendants reached an equity transfer agreement, although they did not go through the registration formalities with the relevant government departments, the plaintiff actually left the company after the resolution was signed, and Zhang also announced the plaintiff's withdrawal to the employees. Since the two defendants never paid the corresponding share transfer money to the plaintiff, they filed a lawsuit to order the two defendants to pay the share transfer money. Defendant Zhang argued that the equity change of a Chinese-foreign contractual joint venture must be approved by the examination and approval authority and registered by the registration authority, and it is invalid only by the resolution of the board of directors. And the resolution of the board of directors itself is illegal. For example, the registered capital of the cooperative company will be reduced if two properties of King Kong Company are priced to pay the equity transfer. Request to dismiss the plaintiff's claim. The defendant King Kong Company argued that this case was an equity dispute between shareholders and had nothing to do with King Kong Company. ?
During the trial, the plaintiff filed an additional lawsuit on June 27, 2000 165438+20001October 27, on the grounds that the two defendants deliberately failed to go to the government department to go through the formalities of equity change, artificially creating obstacles to litigation, that is, requesting the two defendants to go to the relevant government departments to go through all legal procedures caused by the shareholders and equity change involved in this case. In response to the plaintiff's increased claims, the two defendants argued that the failure to complete the formalities of equity change was due to the plaintiff's own reasons, not the defendant's delay. In addition, King Kong Company held a board meeting on February 5, 2000. On March 3, 2000, the board of directors made a resolution to "terminate the implementation of resolutions A and B" (hereinafter referred to as 12? Resolution No.5), so the factual premise of the plaintiff's withdrawal no longer exists, and the court is requested to reject the plaintiff's claim. ?
The court held that 3? Resolution 13 has the dual attributes of board resolution and equity transfer contract. The plaintiff and the defendant Zhang met in 3? When resolution 13 was signed, the equity transfer contract between the two parties was established. Since the plaintiff did not participate 12? 5 Resolution negotiation process, 12? The resolution has no substantial impact on the effectiveness of the equity transfer contract. According to the law, this equity transfer shall be submitted to the examination and approval authority for approval before it can take effect. Because King Kong Company failed to report the change procedures of the cooperation contract according to the resolution, the transfer behavior has not yet taken effect, and the transfer contract has not reached the expected legal effect of the parties. Therefore, the plaintiff's request for the defendant to go through the formalities of equity transfer should be judged first, and other related matters of equity transfer payment should be dealt with after the judgment of first instance takes effect. Accordingly, Defendant Zhang and Defendant Shanghai Jingang Foundry Co., Ltd. shall, within 10 days from the effective date of this judgment, go through the relevant procedures for changing the equity of Plaintiff Xie in Shanghai Jingang Foundry Co., Ltd. to Defendant Zhang. ?
After the verdict, none of the parties appealed. After the judgment came into effect, the defendants Zhang and King Kong Company went to the examination and approval authority to go through the formalities of equity change, and the examination and approval authority changed the investor of the defendant King Kong Company to Lixin Company and the defendant Zhang. ?
Regarding the payment of equity transfer, the court held that: 3? 13 resolution is that the board of directors of the defendant king kong company is the plaintiff's equity.
All parties shall abide by the agreement reached on the transfer. King Kong Company is willing to pay the equity transfer payment with its specific property, which is a debt, but its liability for related debts should be limited, that is, only the agreed property. Judging from this: 1. Defendant Zhang should pay the equity transfer amount of US$ 400,000, RMB 3,365,438+065,438+0, 600 yuan to Plaintiff Xie within ten days from the effective date of this judgment. 2. Defendant Jingang Company shall be jointly and severally liable for the debts of Defendant Zhang mentioned in the preceding paragraph within the scope of the specific property agreed by both parties (Room 404, No.7, Lane 65, Jinshajiang Road, Shanghai, and the ground floor storefront room at No.69, Jinshajiang Road, Shanghai). The specific performance method is: 1. The defendant Shanghai Jingang Foundry Co., Ltd. transferred its property located at Room 404, No.7, Lane 65, Jinshajiang Road, Shanghai to the plaintiff Xie Mou, and the price of the property was RMB 42 1, 145 yuan; 2. The defendant Shanghai Jingang Foundry Co., Ltd. sold the storefront on the first floor of No.69 Jinshajiang Road in Shanghai, and the proceeds were used to pay off the debts owed by the defendant Zhang in the first paragraph of this judgment. Third, the plaintiff Xie's remaining claims are not supported. [opinion]?
This case mainly involves the following legal issues:
1. Regarding whether the partner who has not paid the capital contribution enjoys the equity, some people think that the defendant Zhang in this case does not enjoy the equity of the cooperative enterprise before actually paying the capital contribution, nor does he enjoy the right to transfer the equity that has not been paid to others, so the defendant Zhang's transfer of the equity to the plaintiff is an invalid civil act. ?
According to the theory of company law, the shares held by shareholders can be either the proportion or quantity of shareholders' investment in the company converted from the shares actually paid by the original mode of investment, or the proportion or quantity promised by the agreed shareholders who have not actually contributed. Since the liability for capital contribution of Chinese-foreign contractual joint ventures is different from the paid-in capital system stipulated by the judicial organs, after the application for the establishment of Chinese-foreign contractual joint ventures is approved by the examination and approval authorities, the partners may temporarily not pay their capital contribution and apply to the administrative department for industry and commerce for registration and obtain a business license before setting up the enterprises. The capital contribution can be paid in full after the business license is issued, or it can be paid in installments, and the parties to the venture shall fulfill their obligations of paying in full or providing conditions to the partners within the time limit stipulated in the contractual joint venture contract. This system makes the establishment of Chinese-foreign cooperative enterprises easier, and the capital operation after the establishment is more convenient and flexible, which is conducive to attracting foreign investment. But correspondingly, the question of whether the non-funded partners enjoy the equity arises. Although Zhang, the defendant in this case, did not pay the consideration of his subscribed capital contribution before transferring the equity, the court did not find that Zhang's transfer of the equity to the plaintiff was an invalid civil act. The reason is: 1. After King Kong Company was established according to law, the relevant contracts, articles of association, business licenses, approval certificates and other registration documents with publicity effect all recorded that the defendant Zhang was a partner and shareholder of the company. Defendant Zhang, as a legal shareholder, enjoys shareholder qualification and corresponding share rights. In fact, the defendant Zhang also exercised shareholders' rights, including the right to vote, the right to income and the right to know. And the behavior of the management company it is engaged in should be recognized as the behavior on behalf of the defendant King Kong Company. If it is determined that the defendant Zhang does not enjoy the equity on the grounds that he has not contributed capital, all the actions made by the defendant Zhang on behalf of the company should be considered as invalid civil acts, and the confusion of social and economic order caused by this understanding can be imagined. 2. Paragraph 1 of Article 20 of the Detailed Rules for the Implementation of the Law of People's Republic of China (PRC) on Chinese-foreign Cooperative Enterprises stipulates that "all parties to a contractual joint venture shall, according to the production and operation needs of the contractual joint venture and in accordance with the provisions of relevant laws and administrative regulations, stipulate in the contractual joint venture contract the time limit for each party to invest in the contractual joint venture or provide cooperation conditions". Laws and administrative regulations have no restrictions on the rights enjoyed by partners who have not paid their capital contribution before the expiration of the capital contribution period stipulated in the contract. Therefore, it is obviously lack of legal basis to determine that defendant Zhang does not enjoy equity on the grounds that he did not contribute within the investment period stipulated in the contract. 3. The defendant Zhang's transfer of the equity to the plaintiff did not violate the mandatory provisions of laws and administrative regulations, and it was approved by the examination and approval authority and the approval certificate was renewed. The industrial and commercial registration information has also been recorded accordingly, which meets the legal conditions for equity transfer and should be valid. ? Two or three or so? What is the legal effect of the 13 agreement?
3? 13 agreement has the dual attributes of board resolution and equity transfer contract. As mentioned above, the effect of the equity transfer contract meets the following conditions: 1, with the written consent of the other party; 2, the approval of the examination and approval authority. Both the plaintiff and the defendant Zhang are in 3? When resolution 13 was signed, the equity transfer contract between the two parties was established. Other partners of the defendant King Kong Company participated in 3? 13 consent can be regarded as consent to the equity transfer contract. However, in this case, the defendant King Kong Company did not submit the relevant application documents to the examination and approval authority until the plaintiff sued, which made the contract ineffective. In the course of litigation, the plaintiff and the defendant Zhang did not disagree on the fact of equity transfer.
Discussion, corresponding to 3? There is no dispute about the fact that the 13 agreement went through the relevant examination and approval procedures, so it can be concluded that the plaintiff and the defendant Zhang are in 3? The intention of equity transfer in 13 agreement is true. If the legal effect of the equity transfer contract is directly denied, it is neither in line with the true intention of the parties nor conducive to the security and stability of market transactions. Moreover, the reason why the equity transfer contract in this case failed to produce the expected legal effect was because the defendant King Kong Company failed to press 3? 13 agreement to declare the change of the cooperation contract, before the examination and approval authority makes a decision on whether to agree to the equity transfer, it is not in line with the legislative spirit of the contract law to determine that the equity transfer contract has no legal effect. ?
From the point of view of contract performance, the plaintiff since 3? 13, he withdrew from the operation and management of King Kong Company, and actually delivered his shareholder rights including voting rights, income rights and right to know to the defendant Zhang. It can be said that the plaintiff's contractual obligations have been fulfilled. The equity transfer contract itself does not violate the prohibitive provisions of the law. If it is submitted for approval normally, the contract can be fully performed. If we deny the legal effect of the contract just because of the lack of examination and approval procedures, it obviously violates the legal principles of honesty and fairness and is not conducive to maintaining the development of social and economic order. Third, about the issue of prior judgment?
Article 139 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that "when the people's court hears a case, if some facts are already clear, it may make a judgment on that part first". After finding out some facts of the equity transfer contract in this case, considering that the payment of equity transfer money should be based on the fact that the equity transfer takes effect, the court made an advance judgment on the plaintiff's request for the defendant to go through the formalities of equity transfer. After the first judgment came into effect, the defendants Zhang and King Kong Company went through the formalities of equity change at the examination and approval authority, and the examination and approval authority changed the investor of the defendant King Kong Company to Lixin Company and the defendant Zhang. According to Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of People's Republic of China (PRC) (I), if the parties go through the approval procedures before the end of the debate in the court of first instance, the contract shall be deemed valid. After the equity transfer contract comes into effect, the court will hear and make a ruling on the payment of equity transfer money. ?
A contract whose entry into force is the examination and approval and registration procedures is blocked by the debtor in the form of inaction and cannot take effect. The resulting serious interest imbalance has long plagued the judicial circles in China. This kind of omission violates the basic principle of contract law-the principle of good faith, and its subjective malice is very obvious. However, for a long time, there has been a great controversy about the nature of this behavior and the legal responsibility that the actor should bear. The conclusion is often that the contract has not come into effect, and the protection of the other party's interests is weak, so it is impossible to punish the parties who violate the principle of good faith. In this case, the way of first-instance judgment has made a useful exploration to solve the above problems and provided valuable judicial practice experience.