People's Court of Zouping City, Shandong Province
civil judgment
(2020) Lu 1626 Minchu No.3632
Plaintiff: manager of Wang Xi Group Co., Ltd., whose domicile is Zouping.
Legal Representative: H Moumou, representative of the manager of Wang Xi Group Co., Ltd.
Agent ad litem: W Moumou, administrative staff of Wang Xi Group Co., Ltd.
Authorized Agent: Z Moumou, administrative staff of Wang Xi Group Co., Ltd.
Defendant: Hunan Anren Rural Commercial Bank Co., Ltd., domiciled in Chenzhou City, Hunan Province.
Legal Representative: Hou Lingwu, board chairman.
Authorized Agent: L Moumou, lawyer of Hunan Shang You Law Firm.
Litigation record
On August 24th, 2020, our hospital accepted the dispute between the administrator of Wang Xi Group Co., Ltd. (hereinafter referred to as Wang Xi Administrator) and the administrator of Hunan Anren Rural Commercial Bank Co., Ltd. (hereinafter referred to as Hunan Anren Rural Commercial Bank Co., Ltd.), and applied ordinary procedures according to law, and held a public hearing on June 20th, 2020. The plaintiff's manager entrusts agents ad litem W and Z, and the defendant Hunan Anren Rural Commercial Bank entrusts agent ad litem L to attend the proceedings in court. The case has now been closed.
The plaintiff, Manager Wang Xi, filed a lawsuit in our hospital, and made it clear during the trial: 1. It was ordered to cancel the equity pledge guarantee provided by Wang Xi Group Co., Ltd. on July 3, 2009 1.23% of its shares in Shandong Wang Xi Sugar Co., Ltd.; 2. The litigation costs in this case shall be borne by the defendant. Facts and reasons: On February 2, 2020, the Zouping People's Court made a civil ruling of (2020) Lu 1626, ruling to accept the bankruptcy settlement application of Wang Xi Group Co., Ltd. (hereinafter referred to as Wang Xi Group) and made a (2020) Lu 65438. According to the plaintiff's verification, the defendant, as a bond investor of Wang Xi Group, signed the 16 Wang Xi 03 Bond Sales Arrangement and Cooperation Agreement (hereinafter referred to as the "Sales Agreement") with Wang Xi Group on July 20 19, stipulating that Wang Xi Group would undertake the obligation to purchase 300,000 bonds held by the defendant in full before September 20 19. In order to ensure the performance of the Group's bond repurchase obligations, Wang * *, the chairman of the Group, issued a letter of guarantee to the defendant in July 2065438+2009, and assumed joint and several liability for the Group's performance of the aforementioned repurchase obligations; Wang Xi Group signed the Equity Pledge Contract with the defendant, stipulating that Wang Xi Group would provide the defendant with the equity of Shandong Wang Xi Sugar Co., Ltd. (hereinafter referred to as Wang Xi Sugar Co., Ltd.) 1.23%, and registered the equity pledge on July 365438+. Later, the defendant filed a lawsuit with Chenzhou Intermediate People's Court on October 24th, 20 19, demanding that Wang Xi Group pay the bond principal of 30 million yuan, interest of 480,800 yuan, liquidated damages of 396,800 yuan for overdue repayment of principal and interest, and legal costs of 800,000 yuan; At the same time, it is requested to confirm that the equity of Wang Xi Sugar 1.23% pledged by Wang Xi Group enjoys the priority of compensation. The aforementioned lawsuit has been accepted by Chenzhou Intermediate People's Court, with the case number of (20 19) Xiang 10 Minchu 33 1, and the case has not yet been concluded. As the aforementioned resale agreement and the corresponding equity pledge and guarantee are inconsistent with the information obtained by the administrator from the Shanghai Stock Exchange and involve litigation, which is of great significance, the administrator has not confirmed the defendant's creditor's rights. According to Article 31 of the Enterprise Bankruptcy Law of the People's Republic of China, "within one year before the people's court accepts the bankruptcy application, the administrator has the right to request the people's court to cancel the following acts involving the debtor's property: …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… To sum up, in order to perform the duties of administrator according to law, safeguard the legitimate rights and interests of all creditors of Wang Xi Group, and ensure the orderly settlement procedure of Wang Xi Group, the plaintiff filed a lawsuit with the court in accordance with the provisions of Article 21, Item 7 of Article 25 and Item 3 of Paragraph 1 of Article 31 of People's Republic of China (PRC) Bankruptcy Law, requesting the court to make a judgment.
Defendant Hunan Anren Rural Commercial Bank argued that the equity pledge guarantee provided by Wang Xi Group did not belong to the revocable guarantee act stipulated in the bankruptcy law, and requested the court to dismiss the plaintiff's claim. The reasons are as follows: The bonds in this case are repurchase bonds. According to the regulations, if we apply for Wang Xi Group to buy back, Wang Xi Group should buy back; Before we applied to Wang Xi Group for repurchase, bonds were a kind of valuable securities, which could be circulated in trading places. After we put forward the repurchase by Wang Xi Group, Wang Xi Group should pay the corresponding amount immediately. As Wang Xi Group was unable to pay all the repurchase money as agreed, both parties reached an agreement on the repurchase, thus forming a new creditor-debtor relationship. Wang Xi Group's act of providing guarantee for the new repurchase agreement reached by both parties does not belong to the situation of providing guarantee for unsecured creditor's rights as mentioned in the bankruptcy law, and it is irrevocable.
The evidence materials submitted by the plaintiff, Manager Wang Xi, to our court around the litigation request are: evidence 1. (2020) Lu 1626 civil ruling. 1; Evidence 2. (2020) One copy of Lu 1626 1; Evidence 3. Copy of prospectus of Wang Xi Group's 20 16 public offering of corporate bonds (Phase III); Evidence 4. Investigation on securities assets of business department of Yongjun Road in Chenzhou City: Evidence 5. Resale agreement; Evidence 6. One equity pledge agreement and one equity pledge registration; Evidence 7. (20 19) A copy of Xiang 10' s notice of responding to the lawsuit and civil complaint submitted by the defendant to Chenzhou Intermediate People's Court; Evidence 8. Notice, mailing documents and printed email screenshots of the administrator to the defendant to cancel the equity pledge.
After cross-examination, the defendant has no objection to the evidence 1, 2, 6 and 7 submitted by the plaintiff; There are objections to the authenticity, legality and content of Evidence 3, because the plaintiff and the defendant signed a resale agreement, and the agreement shall prevail if it is inconsistent with the agreement. There is no objection to the authenticity and legality of Evidence 4, but there is objection to the content of proof. This evidence proves that the defendant continues to hold part of the bonds of Wang Xi Group in accordance with the Agreement on Resale. There is no objection to the authenticity and legality of Evidence 5, but there is objection to the content of proof. The reason is that on June 7th, 20 19, the defendant applied to sell back the "16 Wang Xi 03 Bond" for 86 million yuan. After both parties agreed to buy back the bond for 56 million yuan, the defendant continued to hold the bond for 30 million yuan. Wang Xi Group repurchased before September 5, 2009+2065438, so the two sides formed a new legal relationship of creditor's rights and debts, which is different from the original bonds in terms of formation time, subject, payment method, term and debt amount. There is no objection to the authenticity and legality of Evidence 8, but there is objection to the content of proof. The reason is that the guarantee does not belong to the revocable guarantee act stipulated in the bankruptcy law, and we do not agree to cancel the equity pledge.
Defendant Hunan Anren Rural Commercial Bank did not submit evidence.
We believe that all the evidence provided by the plaintiff is objective and true, with legal sources, related to the facts to be proved and mutually confirmed, which we confirm and put on record.
According to the statements of the parties and the evidence confirmed by examination, our court finds the following facts: in July 2006, Wang Xi Group publicly issued "16 Wang Xi 03 Bond". According to the prospectus of this bond offering, the face value of this bond is 65,438+000 yuan, which is issued at face value. The form of bonds is real-name registration bookkeeping corporate bonds, and the guarantee method is unsecured bonds; The term of the bond is 5 years, and the issuer will adjust the coupon rate option and the investor's option to sell back at the end of the third year. After the issuer announces whether to adjust the coupon rate and the adjustment range of the current bonds, investors have the right to register during the investor resale registration period of the third interest-bearing year of the current bonds, and sell all or part of the current bonds back to the issuer at face value, or choose to continue to hold the current bonds; Within five trading days from the date of the announcement of whether to adjust the coupon rate and the adjustment range of the current bonds issued by the spontaneous pedestrians, the bondholders may declare the resale in a specified way. After confirmation, the bondholder's resale declaration is irrevocable, and the total face value of the corresponding corporate bonds will be frozen. Failing to declare within the reporting period of resale, it shall be deemed as giving up the option of resale, continuing to hold the bonds of the current period, and accepting the above decision on whether to adjust the coupon rate of the bonds of the current period and the adjustment range; If the investor exercises the put-back option, the redemption date of some bonds put back for sale is 2065438+August 5, 2009. The defendant, Hunan Anren Rural Commercial Bank, purchased the above-mentioned Wang Xi Group bonds with a face value of 86 million yuan. 2065438+On June 27th, 2009, Hunan Anren Rural Commercial Bank applied for the resale of its 86 million yuan through the Shanghai Stock Exchange system. After that, Wang Xi Group repurchased 56 million yuan bonds held by the defendant, and the remaining 30 million yuan bonds could not be repurchased on schedule due to financial difficulties of Wang Xi Group. After negotiation, on July 30, 2009, Hunan Anren Rural Commercial Bank (Party A), the plaintiff, reached a resale agreement with Group (Party B) and Wang * * (Party C), with the agreement: 1 Hunan Anren Rural Commercial Bank completed the cancellation of the resale declaration of the underlying bonds with an amount of 30 million yuan before July 30 19, and cooperated with the resale of the underlying bonds. 2. On the premise that Hunan Anren Rural Commercial Bank completed the declaration of canceling the resale, Wang Xi Group arranged sufficient funds before September 5, 20 19, and appointed a third party to adjust the latest interest rate (annual interest rate of 7.8%) according to the resale period, and fully bought the remaining 300,000 "16 Wang Xi 03" bonds held by Hunan Anren Rural Commercial Bank after the resale cancellation; 3. On the premise that Hunan Anren Rural Commercial Bank has completed the cancellation of the resale declaration, Wang * * agrees to provide Hunan Anren Rural Commercial Bank with irrevocable joint and several guarantees for the performance of the obligations agreed in this contract, including but not limited to the principal and interest of bonds and liquidated damages. 4. On the premise that Hunan Anren Rural Commercial Bank has completed the cancellation of the resale declaration, Wang Xi Group agrees to provide Hunan Anren Rural Commercial Bank with the pledge guarantee, including but not limited to bond principal and interest, liquidated damages, etc., with its equity of Shandong Wang Xi Sugar Co., Ltd. 1.23% (corresponding to the registered capital of Wang Xi Sugar Co., Ltd. of 45 million yuan). Defendant Hunan Anren Rural Commercial Bank applied to China Securities Depository and Clearing Co., Ltd. and Shanghai Stock Exchange on July 3, 2065438, and was approved. On the same day, Wang * * issued an irrevocable letter of guarantee to the defendant Hunan Anren Rural Commercial Bank, promising to undertake irrevocable joint guarantee for the Group to fulfill the above repurchase obligations. Wang Xi Group signed the Equity Pledge Agreement with Hunan Anren Rural Commercial Bank, and provided pledge guarantee for fulfilling the repurchase obligations of the above agreement with its 65,438+0.23% equity of Shandong Wang Xi Sugar Co., Ltd. (corresponding to the registered capital of Sugar Co., Ltd. of 45 million yuan), and handled the pledge registration number: (Bin) Foreign Equity Registration Word (2065,438+09) No.00. Later, Hunan Anren Rural Commercial Bank filed a lawsuit with the Intermediate People's Court of Chenzhou City, Hunan Province on June 20 19, demanding Wang Xi Group to cash the principal of the bond of 30 million yuan, interest and liquidated damages. The case number is (20 19) Xiang 10, and 33 1 in the early Republic of China has not yet been concluded.
In addition, it was found that our hospital ruled on February 2, 20201to accept Wang Xi Group's application for bankruptcy settlement and appointed an administrator. On April 16, 2020, our hospital ruled to recognize the settlement agreement of Wang Xi Group and terminate the settlement procedure of Wang Xi Group, which is currently in the implementation stage of the settlement agreement. The administrator believes that the above-mentioned equity pledge guarantee provided by Wang Xi Group for the defendant belongs to the property guarantee provided by the people's court for unsecured debts within one year before accepting the bankruptcy application, and should be revoked according to the relevant provisions of Article 31 of the Enterprise Bankruptcy Law of the People's Republic of China, so the case is put on file.
The court held that
We believe that according to Article 31 of the Enterprise Bankruptcy Law of the People's Republic of China, within one year before the people's court accepts the bankruptcy application, the administrator has the right to request the people's court to cancel the following acts involving the debtor's property: (1) transfer the property without compensation; (2) Trading at an obviously unreasonable price; (3) Providing property guarantee for debts without property guarantee; (four) to pay off the outstanding debts in advance; (5) Abandoning creditor's rights. The purpose of the above-mentioned cancellation right stipulated in the bankruptcy law is mainly to ensure the maximization of the debtor's property, to avoid the debtor's sudden transfer of property through free or low-price transactions, or to avoid the debtor's priority in paying off individual creditors based on personal preferences and harming the overall interests of creditors. In this case, the bond "16 xiwang03" issued by Wang Xi Group is unsecured. On June 27th, 20 19, the defendant applied to buy back the 86 million yuan bonds he held through the Shanghai Stock Exchange system. After Wang Xi Group repurchased 56 million yuan, both parties repurchased the remaining 30 million bonds on July 27, 20 19. Wang Xi Group provided the pledge guarantee for Wang Xi Group to fulfill its repurchase obligations with its equity of 1.23%, and registered the pledge. The pledge guarantee occurred within one year from the date when the court ruled to accept the bankruptcy settlement application of Wang Xi Group on February 2, 2020, that is, one year before the people's court accepted the bankruptcy application. Wang Xi Group provided property guarantee without property guarantee for its original debt, which met the revocation conditions stipulated in Item (3) of Article 31 of People's Republic of China (PRC) Bankruptcy Law. The Wang Xi Group manager's request for revocation was established and supported by our court. The defendant argued that the bonds in this case were resold bonds, and after we applied for resale, Wang Xi Group should buy them back and pay the relevant money. As Wang Xi Group could not pay all the repurchase money as agreed, the two parties reached a resale agreement, thus forming a new creditor-debtor relationship. Wang Xi Group's act of providing guarantee for the new resale agreement reached by both parties does not belong to the case of providing property guarantee for debts without property guarantee as mentioned in the Bankruptcy Law and should not be. In our court's opinion, Wang Xi Group's debt of providing equity pledge guarantee in the resale agreement is the repurchase of RMB 30 million "16 Wang Xi 03 Bond" held by the defendant. The bond was originally unsecured, and the defendant applied for resale, but Wang Xi Group could not repurchase it on schedule, and the defendant's creditor's rights still belonged to unsecured creditor's rights, but Wang Xi Group provided it with equity pledge guarantee, which occurred within one year before our court accepted its bankruptcy settlement application. The defendant's excuse does not conform to the facts and legal provisions, and this court will not accept it.
To sum up, support the plaintiff's claim. Accordingly, according to Articles 1 and 31 of the Enterprise Bankruptcy Law of the People's Republic of China, the judgment is as follows:
Judgement result
Revoke the equity pledge guarantee provided by Wang Xi Group Co., Ltd. for Hunan Anren Rural Commercial Bank Co., Ltd. on July 3, 2065438 with its equity of Shandong Wang Xi Sugar Co., Ltd. 1.23%.
The acceptance fee of this case is 100 yuan, which shall be borne by the defendant Hunan Anren Rural Commercial Bank Co., Ltd. ..
If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties, and appeal to the Intermediate People's Court of Binzhou City, Shandong Province.
After this judgment comes into effect (if the parties appeal, the effective judgment of the Court of Appeal shall prevail), the parties with obligations shall fulfill their obligations as specified in the effective legal documents on schedule, and shall not interfere with or evade execution by transferring, concealing, destroying property or overspending. This clause is an enforcement notice. After the execution of this case is put on file, the people's court may take compulsory measures against the property of the person subjected to execution according to law, and take compulsory measures such as being included in the list of people subjected to execution due to dishonesty, restricting consumption, fines, detention, etc. If a crime is constituted, criminal responsibility shall be investigated according to law.
Document tail
Presiding Judge Li Haixia
People's juror Sun Naixi
People's juror Liu Qiang
2020122 October
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