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Notice by the Supreme People's Procuratorate of Issuing the Twenty-First Group of Guiding Cases of the Supreme People's Procuratorate [Effective]
最高人民检察院关于印发最高人民检察院第二十一批指导性案例的通知 [现行有效]
【法宝引证码】

Notice by the Supreme People's Procuratorate of Issuing the Twenty-First Group of Guiding Cases of the Supreme People's Procuratorate 

最高人民检察院关于印发最高人民检察院第二十一批指导性案例的通知

The people's procuratorates at all levels: 各级人民检察院:
As decided at the 45th Meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on July 24, 2020, the following four cases (Cases No. 77-80 of the Supreme People's Procuratorate), including a protest case of dispute over damage compensation liability of the shareholder sued, Shenzhen C Investment Enterprise (Limited Partnership), are hereby issued as the twenty-first group of guiding cases for reference purposes. 经2020年7月24日最高人民检察院第十三届检察委员会第四十五次会议决定,现将深圳市丙投资企业(有限合伙)被诉股东损害赔偿责任纠纷抗诉案等四件指导性案例(检例第77-80号)作为第二十一批指导性案例发布,供参照适用。
Supreme People's Procuratorate 最高人民检察院
July 28, 2020 2020年7月30日
Protest case of dispute over damage compensation liability of the shareholder sued, Shenzhen C Investment Enterprise (Limited Partnership) 深圳市丙投资企业(有限合伙)被诉股东损害赔偿责任纠纷抗诉案
(Case No. 77 of the Supreme People's Procuratorate) (检例第77号)
[Keywords] 【关键词】
enterprise asset reorganization; protection of legal personal property of shareholders; creating good business environment; protest supervision 企业资产重整 保护股东个人合法财产 优化营商环境 抗诉监督
[Key Points] 【要旨】
The shareholder of a company shall assume limited liability of the company within the limit of his or its contribution. Where the shareholder does not abuse his or its independent status as legal person of the company for evading debts and seriously impair the interests of the company's creditors, he or it shall not assume joint and several liability for the company's debts. The procuratorial organ shall strictly apply shareholders' limited liabilities and other property rights systems, protect the safety of personal properties of investors according to the law, and make whoever has permanent property be firmly confident. 公司股东应以出资额为限,对公司承担有限责任。股东未滥用公司法人独立地位逃避债务并严重损害公司债权人利益的,不应对公司债务承担连带责任。检察机关应严格适用股东有限责任等产权制度,依法保护投资者的个人财产安全,让有恒产者有恒心。
[Basic Facts] 【基本案情】
Huizhou A Real Estate Development Co., Ltd. (hereinafter referred to as “Company A”) was registered and formed in November 2007 and it was a company developing real estate projects in Huizhou City, Guangdong Province. Company A has borrowed loans for many times. In January 2010, since Company A was insolvent, the Intermediate People's Court of Huizhou City, Guangdong Province accepted the application for bankruptcy of Company A filed by its creditors. After Huizhou B Development Co., Ltd. (hereinafter referred to as “Company B”) provided the bankruptcy reorganization deposits of CNY50 million, the relevant creditors withdrew the application for bankruptcy liquidation in May 2011. In August 2011, Shenzhen C Investment Company (limited partnership) (hereinafter referred to as “Company C”) signed an Investment Cooperation Agreement and a supplementary agreement with Company A, Huizhou D Real Estate Development Co., Ltd. (hereinafter referred to as “Company D”), Chen Jun (with part name withheld, same below), and Company B. They agreed that Company C, with CNY 20 million, acquired 100% of Company A's equities held by Company D, Company C provided Company A with an entrusted loan of CNY148 million, Company A provided guarantee with the state-owned land use rights involved for Company C's creditors' investment, and Company D, Chen Jun, and Company B also provided joint and several liability guarantee. 2007年11月,惠州甲房产开发有限公司(以下简称甲公司)登记设立,为开发广东省惠州市某房产的房地产项目公司。甲公司多次对外借款。2010年1月,因甲公司无力清偿债务,广东省惠州市中级人民法院受理债权人对甲公司提出的破产申请。在惠州乙发展有限公司(以下简称乙公司)提供5000万元破产重整保证金后,相关债权人于2011年5月撤回破产清算申请。2011年8月,深圳市丙投资企业(有限合伙)(以下简称丙企业)与甲公司、惠州市丁房产开发有限公司(以下简称丁公司)、陈某军、乙公司签订《投资合作协议》及补充协议,约定丙企业以2000万元受让丁公司持有的甲公司100%股权,并向甲公司提供1.48亿元委托贷款,甲公司以案涉国有土地使用权等为丙企业的债权投资提供担保,丁公司、陈某军、乙公司亦提供连带责任担保。
On August 9, 2011, the shareholders of Company A were altered to Company C and Chen Jun, in which the amount of contribution made by Company C accounted for 99.9% of the amount of contributions made by all shareholders. On August 10, 2011, Company C entrusted a branch of China Construction Bank Corporation with lending the loan of CNY148 million to Company A for the operation of a project of Company A and running of Company A, and Company A and Company D provided mortgage guarantee as agreed. On the same day, the entrusted loan of CNY148 million and the income arising from equity transfer of CNY20 million were transferred to Company A. After the aforesaid funds were fully paid, during the period from August 2011 to April 2012, for the purpose of completing such relevant derivative matters in the bankruptcy reorganization procedures as repayment of debts, loans and guarantees during the aforesaid period, according to the contractual stipulations and the instructions of Company B, the creditor Chen Zhong (with part name withheld, same below), and other persons, Company A transferred funds to Company D, Shenzhen E Company, Shenzhen F Company, and other several companies, with the funds amounting to CNY160.5 million in total. 2011年8月9日,甲公司的股东变更为丙企业和陈某军,其中丙企业占股东出资额的99.9%。2011年8月10日,丙企业委托中国建设银行股份有限公司某分行将其1.48亿元款项借给甲公司,用于甲公司某项目运作和甲公司运营,甲公司和丁公司依约提供抵押担保。同日,1.48亿元委托贷款和2000万元股权转让款转入甲公司。款项到位后,2011年8月至2012年4月期间,为完成破产重整程序中债务清偿及期间发生的借款、担保等相关衍生事宜,甲公司依照合同约定及乙公司、债权人陈某忠等人指令,先后向丁公司、深圳市戊公司、深圳市己公司等多家公司转账,款项共计1.605亿元。
On November 1, 2012, Zhu transferred CNY8 million in the creditor's rights of Company A he held to Zhao Xin (with part name withheld, same below) and notified the debtor. On November 5, 2012, Zhao Xin filed a lawsuit with the People's Court of Lanxi City, Zhejiang Province and requested that Company A should repay the debt of CNY8 million and Company C should be jointly and severally liable. 2012年11月1日,诸某某将其持有的对甲公司债权中的800万元转让给赵某新,并通知债务人。2012年11月5日,赵某新向浙江省兰溪市人民法院起诉,要求甲公司归还欠款800万元,丙企业承担连带责任。
In the trial of first instance, the People's Court of Lanxi City held that Company C was an absolute controlling shareholder of Company A. It abused its independent status as the legal person and the limited liability of a shareholder, conducted improper domination and control of Company A, and failed to use the loan in real estate development. Company C's acts of transferring assets and evading debts seriously impaired the interests of creditors of Company A and it should be jointly and severally liable for Company A's debts. Therefore, the People's Court of Lanxi City entered a judgment that Company A should repay Zhao Xin the loan of CNY8 million and Company C should be jointly and severally liable. Company C refused to accept the judgment and appealed to the Intermediate People's Court of Jinhua City, Zhejiang Province. The judgment of second instance rejected the appeal and affirmed the original judgment. Company C filed an application for retrial, which was rejected by the Higher People's Court of Zhejiang Province. 兰溪市人民法院一审认为,丙企业是甲公司的绝对控股股东,其滥用公司法人独立地位和股东有限责任,对甲公司进行不正当支配和控制,且未将贷款用于房地产开发,其转移资产、逃避债务的行为严重损害公司债权人利益,应当对甲公司的债务承担连带责任,遂判决甲公司归还赵某新800万元借款,丙企业承担连带责任。丙企业不服,上诉至浙江省金华市中级人民法院。二审判决驳回上诉,维持原判。丙企业申请再审,浙江省高级人民法院裁定驳回其再审申请。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
Acceptance and Examination: Company C alleged that Company A transferred money for specific purposes other than transfer of assets, it did not abuse its independent status as legal person of Company A and the limited liability of a shareholder, and it should not be jointly and severally liable. In February 2016, it filed an application for supervision with the People's Procuratorate of Jinhua City, Zhejiang Province. The People's Procuratorate of Jinhua City accepted the application and conducted examination. 受理及审查情况。丙企业主张,甲公司对外转款均有特定用途,并非转移资产,丙企业并不存在滥用公司法人独立地位和股东有限责任的行为,不应承担连带责任,遂于2016年2月向浙江省金华市人民检察院申请监督。该院予以受理审查。
By centering on whether Company C abused its independent status as legal person of Company A and its limited liability as a shareholder to evade debts of Company A, the procuratorial organ consulted the original case files; verified the relevant industrial and commercial registration information and inquired of key witnesses in this case. The relevant evidence may prove that the transfer of money to other enterprises by Company A during the period from August 2011 to April 2012 had good causes other than malicious transfer of assets for evading debts. 围绕丙企业是否存在滥用公司法人独立地位和股东有限责任逃避公司债务的问题,检察机关依法调阅原审案卷;核实相关工商登记信息,并对本案关键证人进行询问,相关证据可以证实甲公司于2011年8月至2012年4月期间的对外转款均具有正当事由,而非恶意转移资产,逃避债务。
Supervision Opinion: The People's Procuratorate of Jinhua City instituted a protest to the People's Procuratorate of Zhejiang Province for this case. The People's Procuratorate of Zhejiang Province held upon examination that Company C did not dominate and control Company A's capital expenditures. After Company C acquired Company A's equities, Company A was still managed by the personnel dispatched by Company D, which was a former shareholder of Company A, and there was no change in the management team of Company A; Company A transferred money many times to Company D and other companies all for specific purposes other than malicious transfer of assets; and there was no overlapping or confusion of personnel, business, and financial affairs between Company C and Company A. Therefore, the final judgment was erroneous in both fact-finding and application of law to determine that Company C evaded debts by using its independent status as legal person and the limited liability as a shareholder. On November 25, 2016, the People's Procuratorate of Zhejiang Province instituted a protest to the Higher People's Court of Zhejiang Province. 监督意见。金华市人民检察院就本案向浙江省人民检察院提请抗诉。浙江省人民检察院经审查认为,丙企业并未支配控制甲公司的资金支出,在丙企业受让股权后,甲公司仍然由原股东丁公司派人进行管理,公司管理人员未发生变化;甲公司向丁公司等公司多次转款均具有明确用途,而非恶意转移资产;丙企业与甲公司、丁公司等企业之间不存在人员、业务、财务的交叉或混同。因此,终审判决认定丙企业利用法人独立地位和股东有限责任逃避债务,属于认定事实和适用法律错误。2016年11月25日,浙江省人民检察院依法向浙江省高级人民法院提出抗诉。
Supervision Results: On January 31, 2018, the Higher People's Court of Zhejiang Province entered a civil judgment (No. 116 [2017], Retrial, Civil Division, HPC, Zhejiang), according to which the payments from the entrusted loan receivable and the income arising from transfer of equities had reasonable grounds and the evidence presented failed to prove that Company C abused its independent status as legal person of Company A and its limited liability as a shareholder to evade debts. The Higher People's Court of Zhejiang Province ruled to set aside the sentence in judgments of first instance and second instance that Company C should be jointly and severally liable for the debts involved and reject Zhao Xin's claims against Company C. 监督结果。2018年1月31日,浙江省高级人民法院作出(2017)浙民再116号民事判决,认定案涉委托贷款以及股权转让款的对外支付有合理解释,现有证据不足以证明丙企业有滥用公司法人独立地位和股东有限责任逃避债务的行为,判决撤销一、二审判决有关丙企业对案涉债务承担连带责任的判项,驳回赵某新对丙企业提出的诉讼请求。
[Guiding Significance] 【指导意义】
1. The limited liability system for companies shall be strictly applied and the safety of personal property of shareholders shall be protected according to the law. Personality independence of companies and limited liabilities of shareholders are basic principles in the Company Law. Denying the independent personality of a company and asking a shareholder that abuses its independent status as legal person of the company and limited liability of a shareholder to assume joint and several liability for the company's debts is an exception of the limited liability of a shareholder. In specific cases, the properties and debts of shareholders and the company shall be differentiated according to the law upon comprehensive judgment and prudent application according to specific legal facts and legal relations, so as to maintain the independence of market players and normal economic order. 1.严格适用公司有限责任制度,依法保护股东的个人财产安全。公司人格独立和股东有限责任是公司法的基本原则。否认公司独立人格,由滥用公司法人独立地位和股东有限责任的股东对公司债务承担连带责任,是股东有限责任的例外。在具体案件中应依据特定的法律事实和法律关系,综合判断和审慎适用,依法区分股东与公司的各自财产与债务,维护市场主体的独立性和正常的经济秩序。
2. When examining a case where a shareholder impairs the interests of creditors of the company, the procuratorial organ shall strictly differentiate the limit between a company's proper financing guarantee and illegal acts of maliciously transferring the company's assets to evade debts and impair interests of the company's creditors. Where the shareholder of a company does not maliciously transfer the company's assets by taking advantage of the right to operate for seeking personal gains, nor does it impair the interests of creditors of the company, such shareholder shall not be jointly and severally liable for repaying debts of the company according to the law. 2.检察机关在审查股东损害公司债权人利益的案件时,应当严格区分企业正当融资担保与恶意转移公司资产逃避债务损害公司债权人利益违法行为的界限。如果公司股东没有利用经营权恶意转移公司资产谋一己之私,没有损害公司债权人利益的,依法不应当对公司债务承担连带偿还责任。
3. The procuratorial organ shall actively exercise its supervisory duties and promote the legalized construction of business environment. Limited liability of a company is a landmark in the modern enterprise legal system with the aim to resolve market risks in a scientific manner and encourage creation of wealth by investment. Property rights are the foundation of market-oriented economy, the footstone of social civilization, and the momentum for social development. Investors could not avoid market risks, but it is necessary to build a “firewall” for entrepreneurs' personal and family property risks and enterprises' property risks. Where an enterprise is formed with legal capital contributions and operates legally, even though the enterprise is shut down, the bottom line for shareholders' personal and family properties can still be held so that whoever has permanent property is firmly confident, the business environment can be improved, the enthusiasm of entrepreneurs for investment and business startup can be protected, and legal safeguard can be provided for improving the market order. 3.检察机关应积极发挥监督职责,推动法治化营商环境建设。公司有限责任是具有标志性的现代企业法律制度,旨在科学化解市场风险,鼓励投资创造财富。产权是市场经济的基础、社会文明的基石和社会向前发展的动力,投资者无法回避市场风险,但需要筑牢企业家个人和家庭与企业之间的财产风险“防火墙”,对于依法出资和合法经营的,即使企业关闭停产,也能守住股东个人和家庭的合法财产底线,真正让有恒产者有恒心,优化营商环境,保护企业家的投资创业热情,为完善市场秩序提供法治保障。
[Relevant Legislation] 【相关规定】
Article 20 of the Company Law of the People's Republic of China 中华人民共和国公司法》第二十条
Articles 200 and 208 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法》第二百条、第二百零八条
Case of enforcement supervision over erroneously putting A Animal Husbandry Company on the list of persons subject to enforcement 某牧业公司被错列失信被执行人名单执行监督案
(Case No. 78 of the Supreme People's Procuratorate) (检例第78号)
[Keywords] 【关键词】
loan disputes among enterprises; dishonest persons subject to enforcement; impairing normal operation of an enterprise; supervision over violation of law in enforcement 企业借贷纠纷 失信被执行人 妨碍企业正常经营 执行违法监督
[Key Points] 【要旨】
Where the property against which seizure, impoundment, freeze or any other measure has been taken is sufficient to repay the debts as determined in an effective legal document, the court of enforcement shall not put a person subject to enforcement on the list of dishonest persons subject to enforcement. Where the court of enforcement has put a person subject to enforcement on the list of dishonest persons subject to enforcement in violation of law, the procuratorial organ shall issue a procuratorial proposal in a timely manner and supervise the court's correction of credit disciplinary measures illegally taken against the person subject to enforcement, so as to maintain normal business order and improve the business environment. 查封、扣押、冻结的财产足以清偿生效法律文书确定的债务的,执行法院不应将被执行人纳入失信被执行人名单。执行法院违法将被执行人纳入失信被执行人名单的,检察机关应当及时发出检察建议,监督法院纠正对被执行人违法采取的信用惩戒措施,以维护企业的正常经营秩序,优化营商环境。
[Basic Facts] 【基本案情】
Zhang Kui (with part name withheld, same below) is the legal representative of Shanxi Linfen A Animal Husbandry Co., Ltd. (hereinafter referred to as “A Animal Husbandry Company”). There were disputes over private lending between Qiao and A Animal Husbandry Company and Zhang Kui. On September 16, 2016, the People's Court of Yaodu District, Linfen City, Shanxi Province entered a judgment, according to which Zhang Kui and A Animal Husbandry Company should repay Qiao the loan principal of CNY180,000 and the interest of CNY61,400, which was calculated at the agreed monthly rate of 2% from February 1, 2016 to the date when the judgment took effect. 张某奎系山西省临汾市某牧业有限公司(以下简称某牧业公司)法定代表人。乔某与某牧业公司、张某奎因民间借贷产生纠纷。2016年9月16日,山西省临汾市尧都区人民法院判决张某奎、某牧业公司归还乔某借款本金18万元及利息6.14万元,自2016年2月1日起至判决生效之日止,按约定月息2分的利率承担该借款利息。
After the judgment took effect, Qiao filed an application with the People's Court of Yaodu District for enforcement. The People's Court of Yaodu District entered a ruling on enforcement, according to which the bank deposits of the persons subject to enforcement Zhang Kui and A Animal Husbandry Company, CNY281,280, should be frozen, one flat under the name of Zhang Kui was seized, and it was decided to put A Animal Husbandry Company and Zhang Kui on the list of dishonest persons subject to enforcement. After the ruling on seizure was entered, the court of enforcement failed to serve it upon the parties. 判决生效后,乔某向尧都区人民法院申请强制执行。尧都区人民法院作出执行裁定,冻结被执行人张某奎、某牧业公司银行存款281280元,查封张某奎名下房产一套,同时还决定将某牧业公司、张某奎纳入失信被执行人名单。该查封裁定作出后,执行法院未送达当事人。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
Acceptance: The People's Procuratorate of Yaodu District, Linfen City, Shanxi Province discovered that enforcement in the case of dispute over private lending between Qiao and A Animal Husbandry Company and Zhang Kui was illegal and it docketed the case for examination. 受理情况。山西省临汾市尧都区人民检察院发现乔某与某牧业公司、张某奎民间借贷纠纷一案执行行为违法,并予以立案审查。
Examination and Verification: Upon examination of enforcement files, the procuratorial organ found that: (1) The properties of the persons subject to enforcement that were frozen or seized were sufficient to pay off debts determined in the effective legal instrument and the persons subject to enforcement did not fall under statutory circumstances for being put on the list of dishonest persons subject to enforcement; and (2) the ruling on seizure entered by the court failed to be served upon the parties. The procuratorial organ also learned that after A Animal Husbandry Company was put on the list of dishonest persons subject to enforcement, the granting of bank loans to it was suspended, and the business of A Animal Husbandry Company got into trouble.
......
 审查核实。经审查执行案卷,检察机关发现:一是被执行人被法院冻结、查封的财产足以清偿生效法律文书确定的债务,不符合纳入失信被执行人名单的法定情形;二是法院作出的查封裁定书未向当事人送达。同时,检察机关了解到,某牧业公司被纳入失信被执行人名单后,银行贷款被暂停发放,经营陷入困境。
......

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