Amount differs decuple equity is made over " contract of yin and yang " , with which should be acc

Equity makes over depositary to be below the circumstance that did not report to client, concluded with equity alienee two money paid for something purchased or received for something sold differ contract of decuple yin and yang, and low shade contract harms client interest apparently, should maintain depositary to conclude contract of yin and yang belongs to exceed one's authority to act as agent. Client rejects contract of admit posthumously shade, shade contract does not produce effectiveness to client.

1, is equity made over in " contract of yin and yang " how is legal effectiveness maintained?

2, is equity made over " contract of yin and yang " how does medium commission act as agent to handle?

3, conclude the contract that has contradiction of much portion content, with which be accurate?

4, entrust processing equity to make over what note is there?

... the detail sees later development

A company is one person limited company, register capital 3 million yuan, liu Mou hold 100% equity of this company. On September 30, 2015, liu Mou issue accredit a power of attorney, entrust Lu Mou all matters concerned of company of A of full-fledged member processing, include but not production of company of be confined to is run, investment, capital construction, legal representative is changed, share is made over etc.

On October 16, 2015, the accredit agent that Lu Mou regards Liu Mou as and Du Mou were signed " equity makes over equipment to forget " , the agreement transfers 100% equity of A company; Both sides was signed on January 23, 2016 " equity makes over agreement " , 100% equity of conventional A company make over Du Mou with 300 thousand yuan of prices, since the day that handles industrial and commercial change to register at both sides one-time pay. On April 6, 2016, lu Mou was signed on behalf of Liu Mou and Du Mou " equity makes over an agreement " , a company 100% equity evaluate makes over Du Mou 3 million yuan, hold this agreement to undertake modificatory registering to door of The Ministry of Commerce and Industry.

Liu Mou thinks this second equity is made over happen below its not witting circumstance. Some and Du Mou ill will collude with Lu to make over A company worth with unreasonable low, harmed Liu Mou's interest, and " equity makes over an agreement " sign after, 3 million yuan of when should agree with this agreement affirmatory equity transfer cost. Liu Mou appeals to Du Mou then to the court, ask Du Mou pays 3 million yuan of equity to transfer a money. In front courtyard careful, du Mou argue says, 3 million yuan " equity makes over an agreement " use at only industrial and commercial put on record register, not be its suffer the true meaning that lets equity pay to reply price to express.

This case controversy focus is 100% equity of A company make over price issue. Liu Mou thinks industrial and commercial put on record the equity value that register is 3 million yuan, du Mou should press this price inshore some pays cost, provide the evidence such as the balance sheet of the tax authority and profit watch for this, stop in order to prove to December 31, 2015 A company possessory rights and interests is aggregate 3, 590, more than yuan 000, with industrial and commercial register 3 million yuan of indication equity to make over paragraph conform to.

The authenticity that Du Mou provides evidence to Liu Mou not dissent, but think forms for reporting statistics and actual condition are abhorrent, actual it is a basis " equity makes over equipment to forget " with what signed on January 23, 2016 " equity makes over agreement " make over with 300 thousand yuan of prices, offerred contract of land sell one's own things, enterprise additionally to invest a project to put on record opinion, asset makes over the evidence such as summary table, because proof A company does not have economic capacity to investment is built and make over enterprise and the asset state when making over.

Liu Mou thinks " equity makes over equipment to forget " with what signed on January 23, 2016 " equity makes over agreement " it is Lu Mou is colluded with with Du Mou make, harmed Liu Mou's interest, make over the price actually to answer with industrial and commercial put on record 3 million yuan when register are accurate; Him Du Mou makes asset makes over summary table, do not approbate; To contract of land sell one's own things, enterprise investment project puts on record opinion authenticity not dissent, prove A company manages in order.

This academy thinks, " equity makes over an agreement " putting on record is equity change merely is fair show pattern, its external although have fair show public letter strength, but its internally effectiveness still answer according to contract principle, follow meaning principle principle, according to the meaning of party expresses and honorring the agreement behavior undertakes checkup, put on record register " equity makes over an agreement " the legal sanction that can not produce reality necessarily.

Procuratorial Lu Mou of Liu Mou and Du Mou all affirm 100% equity of A company are transferred with 300 thousand yuan, showing the evidence that Liu Mou provides to fail to prove to transfer equity with 3 million yuan is consistent meaning expresses both sides, some litigant request does not have reason land according to can be being depended on, do not grant to support.

Reason, court of first instance adjudicates the suit that rejects Liu Mou requests. Liu Mou refuses to obey first instance court decision, mention lawfully appeal.

Party lawfully can the attorney concludes contract, depositary ought to fulfill duty processing to commend work to maintain the interest of client according to the directive of client, depositary ought to trust processing situation of general affairs according to the requirement report of client. Depositary entrusts what general affairs signs the much portion contract with disparate money paid for something purchased or received for something sold with the 3rd person, should follow honest credence principle and fair principle, basis of price of the property according to contract award, cost and trade bilateral cognitive circumstance, the cost that holds a contract integratedly and contract are right the sanction of party.

Lu Mou holds the accredit trust deed that Liu Mou signs, with respect to the equity sell one's own things of A company and alienee Du Mou concluded two equity that transfer six to one of money paid for something purchased or received for something sold make over a contract. Depositary Lu Mou ought to maintain the interest of client, the account that will sign contract of two cost wide gap, purpose and the circumstance that fulfil a contract actually have a report to client. But existing evidence cannot prove Lu Mou ever with respect to afore-mentioned circumstances inshore some report, or Liu Mou is right this know the inside story and not dissent.

In addition, although some mixes depositary Lu,what alienee Du Mou all says to be fulfilled actually is 300 thousand yuan equity make over a contract, but the company of price basis A that provides from its " asset makes over summary table " in light of account, evaluate of access of land of A company main assets 1.5 million yuan, and A company obtains pair of price that this land access pays to be 2.17 million yuan before this, belong to be worth under the asset appraise that purchases cost, and Du Mou proves without evidence all this land access are in A company the reasonable particulars of a matter that gets the existence when allowing equity to devalue, and the receivable Zhang money of A company makes bad Zhang processing 854 thousand yuan also lack proper basis.

This academy still notices, although depositary Lu Mou and client Liu Mou fasten mother and daughter to concern, but divorce suit mentions to Liu Mou's father namely after the equity that Lu Mou transfers A company in acting Liu Mou, and Lu Mou still holds the position of senior administrator in A company after transferring equity for you, lu Mou makes over a whether real pay to 300 thousand yuan of equity, the allegation in other case also antilogy, du Mou also fails to offer sufficient evidence to proved to pay 300 thousand yuan equity actually to transfer a money. To Du Mou, its make over a contract to signing the equity of two prices great disparity is known perfectly well, du Mou ought to know as person of competence of completely civil action and foreknow trade accordingly risk and legal consequence, reason Du Mou does not belong well-meaning and opposite person.

Integrated afore-mentioned analysises, the act that Lu Mou signs 300 thousand yuan equity to make over a contract had been surmounted entrust attributive, harmed the legal interest of client, the equity that Liu Mou has authority to be opposite 300 thousand yuan makes over a contract not to grant admit posthumously, this contract does not produce effectiveness to Liu Mou.

3 million yuan when acting to Lu Mou Liu Mou signs equity makes over a contract, liu Mou gives approbate, requirement Du Mou is fulfilled according to 3 million yuan price pay obligation, du Mou is made over in 3 million yuan equity sign on the contract affirm, the basis that this contract registers as equity change is referred to industrial and commercial mechanism put on record, have fair show effectiveness, and the account of the accountant forms for reporting statistics such as the balance sheet that provides a tax authority according to company of the A before case experience equity is made over, the possessory rights and interests of A company (asset is decreased indebted) for 3, 592, 182.8 yuan, can the asset value circumstance when equity of experience of on record of confirm A company is made over. Du Mou calls account of relevant accountant forms for reporting statistics disloyal opinion, lack factual basis, this academy does not grant to collect a letter, 3 million yuan equity transfers cause the contract ought to have sanction to Du Mou. Show case experience equity to had been changed register to Du Mou under one's name, liu Mou makes over a contract in 3 million yuan of equity the equity consign obligation below has been fulfilled end, du Mou ought to inshore some pays equity to transfer pair of cost 3 million yuan.

The place on put together is narrated, liu Mou advocates 3 million yuan equity makes over a paragraph to have contract and factual basis. First trial court has to fastening those who contend for a contract to maintain by accident, should grant to correct.

Final, 2 careful court adjudicates cancel first instance adjudicates, sentence your Du Mou inshore some pays 3 million yuan of equity to transfer cost.

Afore-mentioned typical case involved pair of equity to make over " contract of yin and yang " the cognizance of effectiveness, we make a few illuminate to this:

1, equity is made over in " contract of yin and yang " legal effectiveness

"Contract of yin and yang " it is the contract that shows party concludes with respect to same item much portion content differs, what the agreement restrains bilateral party internally is " shade contract " , "Shade contract " the true meaning that also is bilateral party expresses; Agree external is " in relief contract " , "In relief contract " it is to undertake commonly industrial and commercial when registering, use, in order to achieves dodge a tax or other and special goal.

As a result of " in relief contract " actual the hypocritical meaning that is both sides expresses, accordingly " in relief contract " do not produce effectiveness to both sides, "Shade contract " effective, need to be judged separately according to its content; But if bilateral party concludes " contract of yin and yang " it is to conceal illegal destination with legal form, conclude the behavior of the contract disables not only, what conclude " contract of yin and yang " all also be attributed to invalid.

Equity is made over medium " contract of yin and yang " except avoid besides tax end, still put in the case that has other and special objective. For example the contract of yin and yang that the Lu Mou in this case and Du Mou conclude, the money paid for something purchased or received for something sold of in relief contract instead the money paid for something purchased or received for something sold of contract of prep above shade, balance is as high as even decuple, of very apparent in relief contract conclude the purpose is not to avoid duty. And the real asset value of A company agrees basically with money paid for something purchased or received for something sold of in relief contract, the person must let suspect Lu Mou and Du Mou conclude the purpose of shade contract is low is made over below this kind of circumstance by Lu Mou actual pilot belongings. Besides, actual in also exist conclude costly in relief contract abandons with forcing company other shareholder preferential the situation that buys right.

If equity is made over,conclude contract of yin and yang is to avoid duty, criterion this kind of behavior can bring about contract of yin and yang to all be attributed to invalid. But if be other possibility harms company shareholder, or other the case of interest of the 3rd person, do not affect the effectiveness of shade contract necessarily. If evidence proves party of contract both sides is baleful,collude with harm interest of the 3rd person, criterion because shade contract is disobeyed " contract law " fiftieth set 2 times and disable.

2, equity is made over " contract of yin and yang " medium commission acts as agent

If equity makes over matters concerned,handle by depositary, when effectiveness of contract of yin and yang is being maintained below this kind of circumstance, want to consider afore-mentioned cognizance factors not only, combine the effectiveness that entrusts acting action to maintain even.

Depositary should entrust item according to the demonstrative processing of client, and should report processing circumstance and result to client. If depositary has no right,representative or exceed one's authority act as agent, transcend the action after dealership is stopped, pass only by procuratorial admit posthumously, be assumed by procuratorial ability civil liability. Without the behavior of admit posthumously, assume civil responsibility by behavior person.

If depositary and equity alienee conclude contract of yin and yang, must be the directive according to client concludes contract. If client did not indicate depositary to conclude contract of yin and yang, criterion trustee this action belongs to representative of exceed one's authority. Client has authority to choose whether contract of admit posthumously yin and yang. If reject admit posthumously, criterion contract of yin and yang does not produce effectiveness to client, contract responsibility is assumed by depositary; If entrust admit posthumously of person selected choose among them one of, only client chooses the contract of admit posthumously to produce effectiveness to its.

The Lu Mou in this case serves as Liu Mou's depositary, be commissioned handles share to make over matters concerned. Although Liu Mou did not make clear the specific cost that equity transfers, lu Mou has certain freedom to operate a space, but should be a bottom line in order to be helpful for Liu Mou's interest at least. Lu some privately will assess value more than yuan 300 equity evaluate 300 thousand yuan, make equity value shrink very one of, this one behavior already was the interest that harmed Liu Mou badly, do not belong to limits of Liu Mou accredit apparently. And equity transfers a process in, lu Mou is not inshore the processing situation that some report trusts item, also violated the obligation of depositary. Accordingly, lu Mou makes over equity evaluate 300 thousand yuan Du Mou's behavior to attribute action of representative of exceed one's authority. Show Liu Mou to deny 300 thousand yuan shade contract, already was to reject admit posthumously clearly this representative action, 300 thousand yuan shade contract is opposite reason Liu Mou does not produce effectiveness. And Liu Mou chooses admit posthumously 3 million yuan in relief contract, criterion Du Mou should fulfil the obligation that pays cost by this contract.

1, conclude the contract that has contradiction of much portion content, with which be accurate?

The contract that if party concludes,has contradiction of much portion content, can consider to talk things over conclude compensatory agreement, the kind that undertakes to contradictory content specification, agreement, effectiveness decides complementing will solve.

2, the note that entrusts processing equity to make over

Above all, ying Zaiming entrusts item. The commission of accredit a power of attorney item should specific and clear, xu Zaiming entrusts the equity name of processing, amount, if can decide those who transfer cost, ying Zaiming, may in order to carry bright the acceptable range interval that transfers cost.

Next, ying Zaiming entrusts attributive. For example the negotiation that accredit representative equity makes over, or the contract concludes etc.

Finally, during Ying Zaiming acts as agent. Proposal beforehand appraise processing entrusts item place to need time, during bright representative carries on accredit a power of attorney. After lest entrust item,processing ends, depositary still this accredit client is engaged in hold the item of interest of other client having damage.

" general rule of civil code of People's Republic of China "

The 66th does not have dealership, surmount dealership or the behavior after dealership is stopped, pass only by procuratorial admit posthumously, be assumed by procuratorial ability civil liability. Without the behavior of admit posthumously, assume civil responsibility by behavior person. Oneself know other is denied with him name carries out civil action and be not being made denotive, regard as agree.

Procuratorial nonperformance duty and give what be caused to damage by agent, ought to assume civil responsibility.

Agent is colluded with with the 3rd person, damage by procuratorial interest, by acting support of the people the 3rd person bears joint liability.

The 3rd person knows behavior person does not have dealership, surmount dealership or dealership already was stopped still carry out civil action to be caused to other with behavior person damage, bear joint liability by the 3rd person and travel humanness.

" contract law of People's Republic of China "

The 401st depositary ought to the requirement according to client, the report trusts processing situation of general affairs. When entrusting contract termination, depositary ought to report the result that commends work.