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No. 10 of Ten Model Cases regarding Economic Administration Tried by People's Courts Punished by the Supreme People's Court: Zhou Ketian, Wei Dazhi, Chen Fengjiao, and He Xiangzeng v. China Securities Regulatory Commission (case about administrative penalties)
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最高人民法院发布10起人民法院经济行政典型案例之十:周可添、魏达志、陈凤娇、何祥增诉中国证券监督委员会行政处罚案
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No. 10 of Ten Model Cases regarding Economic Administration Tried by People's Courts Punished by the Supreme People's Court: Zhou Ketian, Wei Dazhi, Chen Fengjiao, and He Xiangzeng v. China Securities Regulatory Commission (case about administrative penalties)
(case about administrative penalties)
最高人民法院发布10起人民法院经济行政典型案例之十:周可添、魏达志、陈凤娇、何祥增诉中国证券监督委员会行政处罚案
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| No. 10 of Ten Model Cases regarding Economic Administration Tried by People's Courts Punished by the Supreme People's Court: Zhou Ketian, Wei Dazhi, Chen Fengjiao, and He Xiangzeng v. China Securities Regulatory Commission (case about administrative penalties) | | 最高人民法院发布10起人民法院经济行政典型案例之十:周可添、魏达志、陈凤娇、何祥增诉中国证券监督委员会行政处罚案 |
| (1) Basic Facts | | （一）基本案情 |
| From 1993, Bao'an Hongji Real Estate Group Co., Ltd. (hereinafter referred to as “Hongji Company”) held such shares as “Wenergy Power,” “Hubei Wushang A,” and “Kunming Department Store A” through other companies. In March 2007, Shenzhen Stock Exchange (“SZSE”) issued a Letter of Regulatory Concern, required the board of directors of Hongji Company to verify and reply matters concerning abnormal fluctuations in share prices. Meanwhile, concerning such event reports of the media as the commentary that the yields of investments in corporate shares of Hongji Company were surprising, SZSE required Hongji Company to publish a Clarification Announcement and specify the relevant situations. When verifying the previous annual reports of Hongji Company, the secretary of the board of directors of the Company identified that the quantity of corporate shares disclosed in such annual reports of the Company was less than that as mentioned in the share reform announcements of other listed companies and the secretary immediately reported the relevant information to the chairman of the board of directors of the Company. On March 19, 2007, Hongji Company issued a Clarification Announcement and claimed that Hongji Company held such shares as “Wenergy Power,” “Hubei Wushang A,” and “Kunming Department Store A” on behalf of other companies, other companies were the actual owners of the aforesaid shares, and such shares it held on behalf of other companies were not its own assets. When issuing the annual reports of 2006, 2007, 2008, and 2009, Hongji Company failed to include the yields of the aforesaid three kinds of shares into the statements and failed to disclose information on the sale of the aforesaid corporate shares that were falsely held on behalf of other companies and information on funds transfer. When the board of directors of Hongji Company deliberated the annual reports of 2006, 2007, and 2008, the attending directors Zhou Ketian, Wei Dazhi, Chen Fengjiao, and He Xiangzeng failed to raise any objection to the matter concerning corporate shares; when it deliberated the annual report of 2009, the attending directors Chen Fengjiao and He Xiangzeng failed to raise any objection to the matter concerning corporate shares. On March 19, 2011, Hongji Company issued the annual report of 2010, in which information on the check of “shares held on behalf of other companies” and funds collection was disclosed. It was said that according to the special auditing report, the equities of the aforesaid three kinds of shares the Company held on behalf of other companies belonged to Hongji Company. In November 2010, the China Securities Regulatory Commission (hereinafter referred to as the “CSRC”) docketed a case for investigation into Hongji Company and in December 2012, it made a decision of administrative penalty, in which it recognized that Hongji Company failed to truthfully disclose matters concerning “shares held on behalf of other companies” in the Clarification Announcement issued on March 19, 2007 and the annual reports of 2006 and 2009. In accordance with the relevant provisions of the Securities Law, the CSRC imposed penalties on the listed company, the chairman of the board of directors, and other liable persons and decided to give a warning to Zhou Ketian, Wei Dazhi, Chen Fengjiao, and He Xiangzeng and impose a fine of 30,000 yuan on each of them. The four persons refused to accept the decision and filed a lawsuit with the court, requesting the court to revoke the penalties imposed on them. | | 1993年开始，宝安鸿基地产集团股份有限公司（以下简称鸿基公司）通过其他公司代持“皖能电力”“鄂武商A”和“昆百大A”等股票。2007年3月，深圳证券交易所发出《监管关注函》，要求鸿基公司董事局核实并回复有关股价异动事项，同时针对媒体有关该公司法人股股票投资收益惊人的评述等事项报道，要求该公司刊登《澄清公告》并明确说明有关情况。时任鸿基公司董事局秘书在核查公司以前年度报告时发现，该公司年度报告中披露的法人股持股数量少于其他上市公司股改公告中提到的该公司持股数量，其随即向董事长报告了有关情况。2007年3月19日鸿基公司发布《澄清公告》，称该公司代其他公司持有“皖能电力”“鄂武商A”“昆百大A”等股票，其他公司是上述股票的实际所有人，代持股份不属于公司资产。发布2006年、2007年、2008年及2009年度报告时，鸿基公司存在未将上述三种股票收益计入报表、未披露上述股票虚假代持法人股出售和资金划转情况等问题。该公司董事局在审议2006年、2007年、2008年年度报告时，参会董事周可添、魏达志、陈凤娇、何祥增未对法人股事项提出异议；在审议2009年年度报告时，参会董事陈凤娇、何祥增未对法人股事项提出异议。2011年3月19日，鸿基公司发布2010年年度报告，披露了对“代持股”的清查情况和资金清收情况，称根据专项审计报告，该公司代其他公司持有的上述三种股票，权益属于该公司。中国证券监督管理委员会（以下简称中国证监会）于2010年11月对鸿基公司进行立案调查，并于2012年12月作出行政处罚决定：认定鸿基公司2007年3月19日《澄清公告》及2006年至2009年年度报告未如实披露其“代持股”问题，依据证券法有关规定，在对上市公司及董事长等责任人员作出处罚的同时，决定对周可添、魏达志、陈凤娇、何祥增给予警告，并分别处以3万元罚款。四人不服诉至法院，请求判决撤销对其的处罚。 |
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