Complier says:
Equity generation opposes one of manages money measures that are choices of a lot of personage of high net value, relatively common also in the life, also be the one big theme of the outbalance in familial money management at the same time. Because concealed name invests caused generation,hold a dispute to grow continuously in last few years, 2 quadrangle of Shanghai were in recently " equity generation holds dispute case to try white paper " in the equity generation that tried 2016 to coming 2012 held dispute case to undertake be combinged in the round, push especially send as follows:
Author | Shanghai court of the 2nd intermediate people
Origin | Shanghai is advanced people court net
Catalog
One, 2012-2016 year equity generation manages dispute case general situation
2, the relevant law risk that equity generation runs dispute case place to cause
3, the judicatory that equity generation holds dispute to try is oriented
Add: Typical case
The Central Committee of Communist Party of China, the State Council released in November 2016 " the opinion that protects property right lawfully about perfecting property right protection " point out, "Must accelerate protection of perfect property right, protect organizations of all sorts of economy of system of ownership and citizen property right effectively lawfully, enhance safety of people property fortune to feel " . Top people court releases " rule about sufficient play function effect is practical the opinion that strengthens property right judicatory to protect " point out, should hold to equal protection, overall protection, protect lawfully, "Want protector authority, creditor's rights, equity already, also should protect intellectual property etc all sorts of aeriform money property right " .
In development of socialist market economy, equity is the main component of property right, of equity be protected lawfully and normative exercise concerns already of the main body interest such as partner, company, creditor cogent safeguard, also the normal operation joys and sorrows with the company is relevant.
Be in in last few years in judicatory practice, because concealed name invests caused generation to hold a dispute to grow continuously,we discover, there is no lack of among them specific identity personnel sets for avoid law discipline " hold dark " the case that then causes dispute. To optimize company processing, the standard invests behavior, hint era runs a risk, jam administrative flaw, the legitimate rights and interests of the market main body such as cogent protection partner, company, creditor, special compose this white paper.
One, 2012 - equity generation managed dispute case general situation 2016
(one) era holds a dispute case amount to grow continuously
Came 2012 2016, the generation that my courtyard careful writtens guarantee manages a dispute case in all 97. Distributing from the year of this kinds of case in light of, era holds a relevant dispute case to show year after year to increase a current. Among them, was 10 2012, was 13 2013, was 20 2014, was 24 2015, was 30 2016, year all increase rate exceeds 30% . Particular case sees figure below:
Graph one: 2012 - 2 quadrangle of Shanghai tried era to hold a dispute case amount to increase a plan 2016
(2) era holds a dispute case to involve a type to distributing
Hold through the generation that to coming 2012 careful writtened guarantee 2016 kind the case undertakes an analysis, the main type of this kinds of dispute includes: ① partner qualification holds issue, main show is concealed name partner requests to show a name, amount of this type case is 61. ② generation holds the effectiveness of a relevant agreement to acknowledge dispute, namely concealed name or court of request of the shareholder that show a name affirm (or deny) the effectiveness that era opposes an agreement, amount of this type case is 6. ③ partner holds issue of exercise partner authority, for instance partner regards concealed name as the right such as authority of know the inside story of exercise of real investor position, amount of this kinds of case is 12. The dispute that ④ partner assumes to debenture Wu, for instance, company creditor requests to show a partner to assume contributive and disloyal responsibility, the partner that show a name publishs concealed name partner, between both sides of involves the partner that show hidden from view and with the dispute between creditor, amount of this kinds of case is 8. ⑤ generation holds a kindness that is made over the 3rd person protects dispute, the equity of the sign that shows a partner to support era for instance undertakes make over or set impawn assures, partner view equity puts in concealed name 's charge when its are all, causes concerned kindness the 3rd person (alienee, pawnee) protective problem, this kinds of case is 7. ⑥ invests the issue of capital quality, tie concealed name than advocating its like one party partner, the fund nature that by shows a partner to throw a company is equity contributive, and the partner that show a name holds this money is loan, this kind of case is 3. Concerned generation manages a dispute case specific type distributings as follows:
Graph 2: Era manages a case specific type distributinging graph
(3) equity generation runs case study
The generation that in me courtyard careful writtens guarantee manages a dispute case in, the account that equity generation manages shows diversification, basically have the following kinds of state: Because avoid law, policy or discipline set,be the main body of specific identity, reach equity by other era is held. For instance official personnel must not be in business for avoid officeholder the regulation that does a business, specific industry has hold the personnel that admittance of course of study restricts sets for avoid restricted, the investor outside the condition is avoid to restrict the investment of admittance domain to set to foreign capital, and use other name investment to become a shareholder company. 2 it is the name is held for era make actually for other law action assure. For instance Jia Xiangyi loan, both sides signs an agreement, the equity of armour under one's name makes over second, of short duration is handed in by second era is held, wait for armour to remand after loan, criterion the under one's name that second is attributed to equity armour. 3 it is to invest for you. For example A has unused fund, entrust B to invest to some company for you. This kinds of dispute often easy cause a department to era holds an issue or entrust dispute of conduct financial transactions to or of leasehold dispute promiscuous. 4 it is to be managing cost. The company controls factitious and managing relevant cost actually (for instance duty Wu cost) or the property income that hides oneself, its equity is handed in by other era is held, dispute is caused after.
Graph 3: The specified number that era supports equity bid distributings graph
(4) the frontal case that equity generation manages dispute experience to appeal to mark
Undertake an analysis through holding a generation of kind of case to hold equity value to era, most case generation holds share price value to be in hundred thousands of yuan, and mostly dispute charges a position; Also generation of a few case holds share price value to be in millions of yuan even ten million yuan of above. Specific and character, era holds equity value to be 57 in 500 thousand yuan of the following cases, 500 thousand yuan of cases to 1 million yuan are 15, to 10 million yuan the case between is 17 1 million yuan, the case of 10 million yuan of above is 8. See figure below:
2, the relevant law risk that equity generation runs dispute case place to cause
According to the regulation of method of our country company, the partner of finite liability company owns the contributive forehead in the limit of of capture to assume responsibility to the company with its; The partner of Inc. assumes responsibility to the company with the share in the limit of of its subscribe. Accordingly, of partner contributive and what opposing equity scale is the main basis that partner enjoys partner right and assumes corresponding responsibility. Equity generation holds the specific connection that broke through status of contributive person, partner, equity, the influence administers structural stability to trading safety and company. Through be opposite in recent years the analysis that my courtyard hears this kinds of case is visible, equity generation holds behavior to be able to hold both sides to era (concealed name partner and the partner that show a name) , the interest of company and other and exterior main body creates corresponding legal risk.
(one) to concealed name partner namely the risk of real investor
1, partner holds concealed name partner status (show a name) need to agree via other shareholder more than half.
When concealed name status of partner view partner requests to show a name namely when, in be being put in the company to administer a structure " the person adds up to a gender " obstacle. " top people court about applicable < company law of People's Republic of China > the regulation of a certain number of problems (3) " the 25th the 3rd section provision, company of partner of partner position change, requirement signs and issue concealed name contributive certificate, account reachs a requirement to deal with at company rules at shareholder register, account industrial and commercial register, ought to pass more than half of company other shareholder agree. In concealed name partner cannot offer the relevant evidence that shareholder of company other more than half agrees with to fall, although this concealed name the actual and contributive person that partner is experience case equity, its become the partner that show a name to perhaps ask to forensic view account at rules of shareholder register, company, still put in difficulty. (see add case one)
2, partner holds concealed name obstacle of law of existence of exercise partner right.
Stem from the consideration that respects party meaning autonomy, to concealed name partner and the generation that sign between the partner that show a name oppose an agreement, if do not have the invalid condition that law sets, should maintain commonly effective. But, if company other shareholder does not know backside of the partner that show a name is returned beforehand,have concealed name partner exists, witting perhaps hind to this concealed name the identity of partner does not grant to approbate, acting a lot of agreements that oppose an agreement cannot reach the other shareholder at company or company. For example, concealed name partner and agree about what share out bonus at the company between the partner that show a name, but this kind of agreement often disables to company or other shareholder. Concealed name the agreement that partner can oppose an agreement according to era only, the part that asks era holds a person to extract an agreement in the cent in gotten dividend gives concealed name shareholder, and the agreement that cannot oppose a person according to its and generation asks the company shares out bonus to its directly. Be like again, partner still is faced with concealed name cannot the risk that exercise partner know the inside story counterpoises. Some actual and contributive people not account at shareholder register the industrial and commercial perhaps data that register, there is the action that harms its interest in although suspect other shareholder is in a company,be being managed, but below the circumstance that partner is in concealed name to did not show a name, if sue what advocate exercise partner know the inside story counterpoises directly, because its are not had " company method " the main body qualification of the regulation that enjoys right of partner know the inside story, also can be faced with lose a lawsuit risk.
3, era holds equity to be made over or by impawn, well-meaning the 3rd person name of precede over concealed partner bears protection.
Partner is in concealed name to show a name lawfully before, its partner status and rights and interests are not known by alien place, reason cannot defy well-meaning the 3rd person. In practice, do sth without authorization of the partner that show a name in order to make over, set impawn or with equity of other way punish when, should get the have no way of the 3rd person that allow the equity generation between partner holds the witting partner that show a name and concealed name when the relation, obtain a principle according to kindness, the 3rd person can obtain kindness get the equity that allow (or exercise counterpoises character) . Although concealed name partner can hold an agreement to ask era holds a person to recoup a loss according to era, but if era holds a person to do not have liquidity, risk can by this concealed name partner is assumed. (see add case 2)
4, when the partner that show a name becomes person be executived, to protect creditor, era holds equity to be able to serve as belongings be executived.
In equity era runs a course in, if show a shareholder,because of oneself debt experience appeals to, when becoming person be executived because of losing a lawsuit then, the share that generation of place of the partner that show a name holds is regarded as very likely to carry out belongings to be frozen, auction. Right now, the share that partner cannot hold an agreement to advocate for the basis era is held with era does not belong to concealed name to be carried out of the partner that show a name belongings. If this equity is auctioned to clinch a deal, contest buys a paragraph to should show the creditor of a partner as executive belongings liquidate above all. Although concealed name partner can hold compensatory equity loss to the partner that show a name, but because show a shareholder,do not have liquidity very likely and offset corresponding loss hard.
(2) the risk that runs a person to showing a partner to take the place of namely
1, when creditor requests partner to assume responsibility to debenture Wu lawfully, the partner that show a name is faced with assume risk of pay off responsibility.
Basis " company method " the provision that explains with relevant judicatory, when the company needs to assume liability external and company assets can't repay, if partner has to the company false and contributive or smoke escape contributive, creditor can ask this partner assumes responsibility of compensatory pay off inside contributive and disloyal limits; When if the ministry issues person shareholder,creating a company contributive and disloyal, criterion creditor can ask initiator partner is right inside disloyal and contributive limits debenture Wu assumes pay off responsibility jointly each other. The partner that show a name is in external register in the industrial and commercial information that register for company shareholder, if should show a partner place to hold share to exist of contributive and disloyal case (real possibility is concealed name investor is not real contributive or smoke time contributive) , criterion company creditor but the basis is industrial and commercial the shareholder information that register, the requirement shows a shareholder (era holds a person) pay off responsibility is assumed to debenture Wu inside contributive and disloyal limits. The partner that show a name with its only era holds a person to serve as counterplea without contributive obligation, get forensic support hard. (see add case 3)
2, meeting of the shareholder that show a name faces the risk that quits a company hard.
With before shareholder requirement shows the name that state hidden from view renown, need to agree with likeness via other shareholder more than half, if the partner that show a name does not wish to continue to take the place of again hold, be about to exit a company to perhaps let concealed name partner shows a name, also should get the limitation of this condition. If other shareholder does not know to equity generation maintains status beforehand, after the event is not willing again real investor shows a name, should take the place of hold a person to still be exited hard. Additional, when generation of a few equity holds consultative agreement to be accomplished in certain condition, the partner that show a name reachs change of equity of its under one's name concealed name partner under one's name. But in practice, whether to make presence to relevant condition bigger dispute, the partner that show a name cannot finish quote, also meet those who cause the shareholder that show a name exit difficulty. (see add case 4)
(3) the risk to company and outside person
1, bring a case to court of company easy be involved in is tired.
Real investor holds a contract to form right obligation to concern through concluding equity takes the place of with the partner that show a name, be based on this kind of agreement, other shareholder of the real investor, partner that show a name, company, company, exterior creditor between direct or produced all sorts of daedal legislation impacts secondhand, then can cause a series of dispute. In the concealed name of different type investment law concerns in, investment still can involve concealed name representative, partnership, fiducial wait for legal impact. In practice, no matter be concealed name,shareholder requirement affirms its equity, still ask the company deals with industrial and commercial change to register, the company avoids to involve hard appeal to tired. In this kinds of case that in me the courtyard hears, the nearly 6 companies that become case general bid serve as the accused, the nearly 4 companies that become case general bid label the 3rd person. Accordingly, to the company, when partner equity generation opposes action, avoid lawsuit of meeting be involved in hard.
2, the trustful meeting between the limited company partner that joins a gender to be a foundation with the person is destroyed, the stability that goes against a company develops.
Finite liability company is had " the person adds up to a gender " feature, the understand one another between partner and accredit are the company is able to manage the base that reachs development to put add and premise normally, and break or affect a company " the person adds up to a gender " behavior, bring about company development probably to be immersed in predicament. Accordingly, to carry each other credit between partner, a lot of companies are in before holding water, all can be opposite through the agreement between partner the contributive, condition of partner or limits tries demarcate. After the company holds water, still can wait for internal document to adding partner, equity newly to be made over external through company rules with " the person adds up to a gender " relevant item gives regulation. The equity generation that stems from all sorts of purposes opposes action, often be to understanding between partner one kind with accredit is destroyed. To the company, be like other shareholder beforehand generation of not witting equity holds item, the partner that show a name did not disclose the information of actual and contributive person to other shareholder already, yi Wei announces equity generation to hold consultative clause to agree, once show a partner to ask to exit company or concealed name,shareholder requirement affirms partner qualification, it is especially when actual and contributive person and other shareholder lack are trustful, contradiction can be highlighted, have the caustic stability at the company and development thereby.
3, it is profitless that equity generation is held at trading safety is mixed trade efficiency.
The safety that trade issue trades and efficiency, it is the important safeguard that upholds healthy market order. Classics is industrial and commercial the partner qualification that register, contributive circumstance, hold the information such as a scale, merit arrives " creed of trade issue outward appearance " with " fair show public letter principle " protection, safeguard the market to trade thereby order and promotion trade efficiency. Partner and the equity generation between the partner that show a name hold concealed name relation, concealed the true condition with contributive equity, increased to trade the complexity of behavior, created the asymmetry that makes easy news, bring about trading exterior appearance opposite party to trade to understanding the financial condition state of the other side needs to pay the more manpower, energy, cost such as financial capacity, affect trading safety and trading efficiency then.
3, the judicatory that equity generation holds dispute to try is oriented
Although invest way as a kind,equity generation opposes action, OK and contented investor conceals the identity to be planted in order to get some the purpose of yield, but will look from experience record issue, market main body or ought to balance advantages and disadvantages, careful appreciate equity " concealed body art " , once experience appeals to relevant right,often get judicatory is ensured hard.
(one) judicatory does not encourage equity generation to oppose action
The own action that although equity generation holds behavior to fasten party,leaves in market economy condition, law holds behavior to did not prohibit to general equity generation, but equity generation holds behavior to hold person, real investor to wait to all can bring jural risk to era, party needs balance advantages and disadvantages when executive equity generation opposes action, careful generation is held. Equity generation holds behavior to make the nominal partner that the company registers and real investor abhorrent, in the market the meeting in trading makes trade the object produces a miscarriage of justice to the information of the company; Once era holds behavior to be announced, to company business credit also can produce an effect, these go against the market the construction of sincere letter system. The court does not encourage equity generation to oppose action commonly when mastering judicatory measure.
(2) the effectiveness that opposes an agreement to era adopts area of inside and outside to divide a principle
An issue is held in era in, the court meets what divisional generation supports the effectiveness of inside and outside of a behavior fasten commonly. This kind distinguishs covered two levels, it is divisional generation opposes an agreement the effectiveness of the effectiveness between consultative party and other to the company shareholder. The agreement that era opposes an agreement to consultative party (real investor and generation hold a person) between it is effective commonly, but if the company is other,partner opposes an action to era not know the inside story, acting hold an agreement to often produce effectiveness hard to company other shareholder, also produce effectiveness hard to the company. 2 it is the responsibility that divisional generation holds a behavior and partner to should be lost external. Although era holds a consultative agreement to assume contributive obligation by real investor, perhaps agree the partner that show a name is not in charge of without exception to the debt of the company, but if this are acting held share is contributive and disloyal, the creditor of the company still can ask the partner that show a name assumes responsibility inside contributive and disloyal limits. Outskirt cent principle is a when the court tries experience generation to hold an issue important principle inside.
(3) the generation that provides to avoid law discipline holds a behavior to give keep within limits
To concealing oneself special status painstakingly, regulation of avoid law discipline undertakes taking the place of holding behavior, court besides handle a case lawfully besides, the information that in returning meeting general case, obtains suggests to wait for means to be mirrorred to relevant section through judicatory. Use era to hold a form to participate in to official personnel for example be in business do a business, specific industry superintends personnel, intermediary personnel to use era to hold a formal generation to hold the share of the company that superintend or serves a target, avoid concerns the legal discipline provision that the identity keeps apart, the personnel outside the condition holds a formal hold churchyard to belong to foreign capital to limit the share of the company of admittance domain through era, etc. Once discover these problems,we are in in judicatory, besides won't support real investor to become the partner that show a name lawfully besides, still will control the information that orgnaization feedback obtains in the case to relevant law discipline, undertake handling according to discipline lawfully by relevant function branch.
Add: Typical case
Zhao Mou tells Jin Mou of Zhao of company of ZL science and technology, the 3rd person, the 3rd person qualification of Yang Mou partner affirms issue desk
[juridical point]
Party agrees with one party name contributive (the investment that show a name) , other one party is actual and contributive (concealed name invests) , this agreement does not produce effectiveness to other shareholder of company and company, concealed name if investor advocates " show a name " , need more than half of classics company other shareholder to agree.
[basic details of a case]
Appellant (first trial accuser) : Zhao Mou
Appellee (first trial the accused) : Company of ZL science and technology
First trial the 3rd person: Zhao Jin Mou
First trial the 3rd person: Yang Mou
Zhao Mou is the actual and contributive person of 40% equity of company of ZL science and technology, this scale equity by Jin Mou of Zhao of the 3rd person for you hold. The equity generation that Zhao Mou signs according to its and Zhao Jin Mou opposes an agreement, sue a view to think to the court company of science and technology of its hold ZL the equity of 40% , namely the actual and contributive person that Zhao Mou is this scale equity, before to the company the mechanism that register is dealt with, company of requirement ZL science and technology narrates equity change to register.
In the cognizance process of this case, zhao Jin Mou confirms experience proposal the equity of 40% is his hold of acting Zhao Mou, zhao Mou is the actual and contributive person of this scale equity. The other shareholder of company of ZL science and technology namely Yang Mou of the 3rd person states different idea Zhao Mou becomes firm partner clearly in front courtyard careful, company of ZL science and technology also does not agree to deal with partner to change the procedures that register.
[juridical result]
Court of first instance makes civil court decision after classics cognizance: To Zhao Mou company of requirement ZL science and technology will register the 40% equity of company of ZL science and technology in under one's name of Zhao Jin Mou to deal with industrial and commercial change to register change the name of owner in a register to request to the lawsuit of Zhao Mou under one's name, do not grant to support.
After adjudging, company of ZL science and technology refuses to obey, to Shanghai court of the 2nd intermediate people mentions appeal. Court of the 2nd intermediate people makes Shanghai civil judgment: Reject appeal, maintain original judgement.
[juridical reason]
Become effective judgment thinks, party agrees with one party name contributive (the investment that show a name) , other one party is actual and contributive (concealed name invests) , this agreement does not produce effectiveness to the company. Actual and contributive person must not hold exercise partner right to the company, can mention to counterpoise truly above all only lawsuit. " top people court about applicable < company law of People's Republic of China > the regulation of a certain number of problems (3) " the 25th the 3rd section provision, company of partner of partner position change, requirement signs and issue concealed name contributive certificate, account reachs a requirement to deal with at company rules at shareholder register, account industrial and commercial register, ought to pass more than half of company other shareholder agree. In concealed name partner cannot offer the relevant evidence that shareholder of company other more than half agrees with to fall, although this concealed name the actual and contributive person that partner is experience case equity, to its requirement company handles the litigant request that industrial and commercial change registers partner, the court supports hard.
Song Mou accuses Wang Mou, Li Mou requests to affirm equity makes over a contract invalid issue desk
[juridical point]
Partner is in concealed name to show a name lawfully before, its partner status and rights and interests are not known by alien place. Here the circumstance falls, do sth without authorization of the partner that show a name in order to make over, set impawn or with equity of other way punish, should suffer make have no way of the 3rd person witting show a partner and concealed name when the equity generation between partner maintains a relationship, obtain a principle according to kindness, the 3rd person can obtain kindness get the equity that allow (or exercise counterpoises character) .
[basic details of a case]
Appellant (first trial accuser) : Song Mou
Appellee (first trial the accused) : Wang Mou
Appellee (first trial the accused) : Li Mou
Wang Mou fastens the registering partner of some trading company, hold this company the equity of 24% . The contributive agreement that Song Mou and Wang Mou sign carries bright, what Wang Mou runs this company the equity of 24% is Song Mou actually contributive. June 2012, wang Mou agrees without Song Mou, sign equity to make over an agreement with Li Mou, transfer this equity of 24% Li Mou, the other shareholder of this company also not dissent, industrial and commercial change was dealt with to register after. In Feburary 2013, for the actual and contributive person that Song Mou is this 24% equity with its, sue to the court, advocate the equity between Wang Mou and Li Mou makes over an agreement to disable.
[juridical result]
The court decision after classics of court of first instance is tried rejects Song Mou's lawsuit to request. After adjudging, song Mou refuses to obey, mention appeal. Court of the 2nd intermediate people makes Shanghai civil judgment: Reject appeal, maintain original judgement.
[juridical reason]
Become effective judgment thinks, partner is in concealed name to show a name lawfully before, its partner status and rights and interests are not known by alien place. Here the circumstance falls, do sth without authorization of the partner that show a name in order to make over, set impawn or with equity of other way punish when, should get the have no way of the 3rd person that allow the equity generation between partner holds the witting partner that show a name and concealed name when the relation, obtain a principle according to kindness, the 3rd person can obtain kindness get the equity that allow (or exercise counterpoises character) . Although concealed name partner can hold an agreement to ask era holds a person to recoup a loss according to era, but if era holds a person to do not have liquidity, risk can by this concealed name partner is assumed. In this case, because Song Mou fails to offer card to suffer the department when allowing equity to know perfectly well a transferor according to proving Li Mou is in,Wang Mou is nominal partner, actual and contributive person is Song Mou, the appeal of reason Song Mou cannot support. Song Mou only can the agreement according to its and Wang Mou, request Wang Mou to recoup the loss that be made over because of equity and suffers separately. Accordingly, forensic court decision rejects Song Mou to request to affirm equity makes over the lawsuit with invalid agreement to request.
Cai Mou accuses B builds case of dispute of contract of business of company, Fang Mou
[juridical point]
The partner that show a name is in external register in the industrial and commercial information that register for company shareholder, if should show a partner place to hold share to exist of contributive and disloyal case (concealed name investor is not real contributive or smoke time contributive) , criterion company creditor but the basis is industrial and commercial the shareholder information that register, the requirement shows a shareholder (era holds a person) pay off responsibility is assumed to debenture Wu inside contributive and disloyal limits. The partner that show a name with its only era holds a person to serve as counterplea without contributive obligation, get the court supports hard.
[basic details of a case]
Appellant (first trial the accused) : B builds a company
Appellee (first trial accuser) : Cai Mou
B builds company and company of engineering of case alien S to sign agreement, bilateral each are contributive 1 million yuan, plan to establish company of T environmental protection, b builds company head period only contributive 500 thousand yuan. December 2013, b construction company is other sign investment agreement with Fang Mou, conventional B builds a company to invest 1 million yuan of capital of company of T environmental protection, assume actually by Fang Mou 50% , namely Fang Mou is contributive 500 thousand yuan, fang Mou participates in a company to administer with the name of B construction company and enjoy profit to allocate. After the agreement is signed, fang Mou did not build B of consign of 500 thousand yuan of contributive money the company, also did not invest this money company of T environmental protection. After company of T environmental protection holds water, because of financial insolvency external contract money, creditor Cai Mou sues requirement B to build a company to owe Cai Mou's debt to assume responsibility to company of T environmental protection inside not contributive limits. B builds company argue to call this part equity is Fang Mou actual hold, should by Fang Mou contributive assume responsibility.
[juridical result]
Court of first instance builds a company to be inside limits of not contributive 500 thousand yuan of principal and interest via B adjudicating after cognizance the money that defaults Cai Mou to company of T environmental protection assumes responsibility of compensatory pay off. After adjudging, b builds a company to refuse to obey, mention appeal. Court of the 2nd intermediate people makes Shanghai civil judgment: Reject appeal, maintain original judgement.
[juridical reason]
Industrial and commercial structure of the company shareholder information that register, equity and contributive circumstance, the department trades to just learn the proper way of company information relatively, occupy do business with reliance. Basis " company method " the provision that explains with relevant judicatory, when the company needs to assume liability external and company assets can't repay, if partner has to the company false and contributive or smoke escape contributive, creditor can ask this partner assumes responsibility of compensatory pay off inside contributive and disloyal limits; When if the ministry issues person shareholder,creating a company contributive and disloyal, criterion creditor can ask initiator partner is right inside disloyal and contributive limits debenture Wu assumes pay off responsibility jointly each other. The partner that show a name is in external register in the industrial and commercial information that register for company shareholder, if should show a partner place to hold share to exist of contributive and disloyal case (real possibility is concealed name investor is not real contributive or smoke time contributive) , criterion company creditor but the basis is industrial and commercial the shareholder information that register, the requirement shows a shareholder (era holds a person) pay off responsibility is assumed to debenture Wu inside contributive and disloyal limits. In this case, although B builds company argue to weigh the equity of not contributive to company of T environmental protection part,fasten Fang Mou actual hold, but creditor is witting to this have no way, the shareholder that the industrial and commercial information that register shows namely contributive obligor is B construction company. Company of reason B construction serves as the partner that show a name with its it is acting only hold a person to serve as counterplea without contributive obligation, the court does not grant to support.
Huang Mou, Luo Mou accuses qualification of shareholder of company of S paper model affirms issue desk
[juridical point]
If the partner that show a name does not wish to continue to take the place of again hold, be about to exit a company to perhaps let concealed name partner shows a name, ought to agree through more than half of company other shareholder. If other shareholder does not know to equity generation maintains status beforehand, after the event is not willing again real investor shows a name, should take the place of the litigant request of partner of change of the demand that hold a person gets supportive hard.
[basic details of a case]
Appellant (first trial accuser) : Huang Mou
Appellant (first trial accuser) : Luo Mou
Appellee (first trial the accused) : Company of S paper model
2012, company of S paper model holds water, register capital 5 million yuan, among them, huang Mou identifies capture contributive 1 million yuan, oppose a scale 20% . Of the same age, luo Mou and Huang Mou are signed " a power of attorney " , agree Huang Mou holds 20% equity of company of model of some S paper, for Luo Mou actual and all, luo Mou entrusts Huang Mou full-fledged member to handle; Agree, if generation of company of S paper model is made over, when cancelling the case that company of other perhaps influence manages normally, equity sum returns Huang Mou general to still give Luo Mou, huang Mou quits company of S paper model. Hind, huang Mou, Luo Mou because benefit of market of company of S paper model not beautiful, accuse to the court the request affirms Luo Mou is the actual partner of 20% stock of company of model of hold S paper, company of S paper model deals with formalities of industrial and commercial change for Luo Mou.
[juridical result]
The court decision after classics of court of first instance is tried rejects the lawsuit of Huang Mou, Luo Mou to request. After adjudging, huang Mou, Luo Mou refuses to obey, mention appeal. Shanghai makes civil court decision after cognizance of classics of court of the 2nd intermediate people: Reject appeal, maintain original judgement.
[juridical reason]
Become effective judgment thinks, concealed name is formed to invest law to concern between Luo Mou and Huang Mou, but this agreement ties bilateral and in-house agreement, produce legal sanction between Luo Mou and Huang Mou only, do not have legal effectiveness to company of S paper model. Below the circumstance that without company of S paper model other shareholder majority agrees, the appeal that Huang Mou, Luo Mou requests to affirm Luo Mou is shareholder of company of S paper model should not get supportive. In addition, bilateral " a power of attorney " agreed Huang Mou returns the premise condition that still invests a money, namely the company appears make over, the case that cancels company of other perhaps influence to be managed normally, show both sides to all fail the case that company of model of paper of quote proof S puts in afore-mentioned agreements. Accordingly, the court requests not to grant to support to the lawsuit of Huang Mou, Luo Mou.
Pick from: Counsel atelier
