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Peng Lijing v. Liang Xiping, Wang Baoshan and Hebei Gold Coast Real Estate Development Co., Ltd. (A Case about Disputes over Equity Transfer)
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彭丽静与梁喜平、王保山、河北金海岸房地产开发有限公司股权转让侵权纠纷案
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【法宝引证码】
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- Type of Dispute：
Civil--＞Tort
- Legal document：
Judgment
- Judgment date：
11-27-2008
- Procedural status：
Trial at Second Instance
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Peng Lijing v. Liang Xiping, Wang Baoshan and Hebei Gold Coast Real Estate Development Co., Ltd. (A Case about Disputes over Equity Transfer)
(A Case about Disputes over Equity Transfer)
彭丽静与梁喜平、王保山、河北金海岸房地产开发有限公司股权转让侵权纠纷案
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Peng Lijing v. Liang Xiping, Wang Baoshan and Hebei Gold Coast Real Estate Development Co., Ltd.
(A Case about Disputes over Equity Transfer) | | 彭丽静与梁喜平、王保山、河北金海岸房地产开发有限公司股权转让侵权纠纷案 |
[Judgment Abstract] | |
【裁判摘要】 |
1. Where a couple set up a company with contribution made commonly by them, the registered capital consists of assets owned by each of them and they bear liability proportionately. Hence, a couple is to submit a certificate of division of assets when they register a company. Where no division of assets has occurred, it shall be recognized that the company is established by the couple with their commonly-owned assets. During the existence of their marriage, the shares under the name of the husband or the wife are part of the assets commonly owned by the couple. As owners-in-common, both have equal rights to possess, use, profit from and dispose of the assets. | |
一、夫妻双方共同出资设立公司的，应当以各自所有的财产作为注册资本，并各自承担相应的责任。因此，夫妻双方登记注册公司时应当提交财产分割证明。未进行财产分割的，应当认定为夫妻双方以共同共有财产出资设立公司，在夫妻关系存续期间，夫或妻名下的公司股份属于夫妻双方共同共有的财产，作为共同共有人，夫妻双方对该项财产享有平等的占有、使用、收益和处分的权利。 |
2. Under Article 17, Paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues regarding the Application of the Marriage Law of the People's Republic of China, where a husband or wife makes decisions on the material disposition of commonly-owned assets not due to daily needs, both parties are to negotiate and reach consensus. Where others have reason to believe that the disposition made by the husband or the wife is based on the common expression of the intent of both parties, the other spouse may not, on the ground that he or she did not agree or had no knowledge, make a defense against a third party acting in good faith. The act of transferring commonly-owned shares is a type of material disposition of commonly-owned assets and requires both parties to reach consensus via negotiation and sign the names of both parties on the equity transfer agreement, the resolution of the board of directors, and the amendment of the articles of association. | |
二、根据最高人民法院《关于适用＜中华人民共和国婚姻法＞若干问题的解释(一)》第十七条第二款的规定，夫或妻非因日常生活需要对夫妻共同财产做重要处理决定，夫妻双方应当平等协商，取得一致意见。他人有理由相信夫或妻一方做出的处理为夫妻双方共同意思表示的，另一方不得以不同意或不知道为由对抗善意第三人。因此，夫或妻一方转让共同共有的公司股权的行为，属于对夫妻共同财产做出重要处理，应当由夫妻双方协商一致并共同在股权转让协议、股东会决议和公司章程修正案上签名。 |
3. With respect to shares commonly owned by a couple, the issue of the effectiveness of an equity transfer agreement entered into by the husband or the wife and a third party shall be analyzed comprehensively according to multiple factors including the facts of the case, whether the other spouse is aware of the transfer, or whether the transferee is acting in good faith. If it can be determined that the other spouse is aware of the transfer and the transferee is acting in good faith, the equity transfer agreement is binding on each spouse. | |
三、夫妻双方共同共有公司股权的，夫或妻一方与他人订立股权转让协议的效力问题，应当根据案件事实，结合另一方对股权转让是否明知、受让人是否为善意等因素进行综合分析。如果能够认定另一方明知股权转让，且受让人是基于善意，则股权转让协议对于另一方具有约束力。 |
Supreme People's Court | |
最高人民法院 |
Civil Judgment | |
民事判决书 |
No.219 [2007], Final, Civil Division II, SPC | |
(2007)民二终字第219号 |
BASIC FACTS | |
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Appellant (Plaintiff in the Original Instance): Peng Lijing, female, Han Chinese, born on November 24, 1975, residing at Room 1-403, 56 Xinhua West Road, Xinhua District, Shijiazhuang, Hebei Province. | |
上诉人(原审原告)：彭丽静，女，汉族， 1975年11月24日出生，住河北省石家庄市新华区新华西路56号1— 403室。 |
Attorney: Shi Jianzhong, lawyer of Beijing X.H. Law Firm. | |
委托代理人：时建中，北京市鑫河律师事务所律师。 |
Appellee (Defendant in the Original Instance): Liang Xiping, male, Han Chinese, born on April 24, 1971, residing at Room 2-302, Building 58, Berlin Residential Area, Xinhua District, Shijiazhuang, Hebei Province. | |
被上诉人(原审被告)：梁喜平，男，汉族，1971年4月24日出生，住河北省石家庄市新华区柏林小区58栋2— 302室。 |
Attorney: Gao Yang, lawyer of Hebei Jiangzhong Law Firm. | |
委托代理人：高洋，河北姜钟律师事务所律师。 |
Appellee (Defendant in the Original Instance): Wang Baoshan, male, Han Chinese, born on June 28, 1955, residing at Room 5-303, Dormitory of Hebei Economic and Technical Cooperation Office, Qiaoxi District, Shijiazhuang, Hebei Province. | |
被上诉人(原审被告)：王保山，男，汉族，1955年6月28日出生，住河北省石家庄市桥西区省经协办宿舍5-303室。 |
Attorney: Gao Xiuping, lawyer of Hebei Xinye Law Firm. | |
委托代理人：高秀萍，河北新业律师事务所律师。 |
Attorney: Fan Yunping, lawyer of Hebei Zhengda Xiangshi Law Firm. | |
委托代理人：范云平，河北正大祥实律师事务所律师。 |
Appellee (Defendant in the Original Instance): Hebei Gold Coast Real Estate Development Co., Ltd., domiciled at: 12th floor, Xiqing Apartment, 25 Hongqi Avenue, Shijiazhuang. | |
被上诉人(原审被告)：河北金海岸房地产开发有限公司。住所地：石家庄市红旗大街25号西清公寓12层。 |
Legal Representative: Wang Baoshan, executive director of the Company. | |
法定代表人：王保山，该公司执行董事。 |
Attorney: Liu Shibin, lawyer of Beijing Shuangli Law Firm. | |
委托代理人：刘士斌，北京市双利律师事务所律师。 |
For the disputes over equity transfer with the appellees, Liang Xiping, Wang Baoshan and Hebei Gold Coast Real Estate Development Co., Ltd. (hereinafter referred to as “Gold Coast Company”), the appellant, Peng Lijing appealed the Civil Judgment (No.18 [2007], First Instance, Civil Division II, HPC, Hebei Province) to this Court. This Court legally formed a collegial panel consisting of chief judge Jin Jianfeng, judge Wang Dongmin and acting judge Yin Yuan to try this case, with court clerk Zhao Suijun keeping the court record. So far, the trial of this case has been concluded. | |
上诉人彭丽静为与被上诉人梁喜平、王保山、河北金海岸房地产开发有限公司 (以下简称金海岸公司)股权转让侵权纠纷一案，不服河北省高级人民法院(2007)冀民二初字第18号民事判决，向本院提起上诉。本院依法组成由审判员金剑锋担任审判长，审判员王东敏、代理审判员殷媛参加的合议庭进行了审理，书记员赵穗军担任记录。本案现已审理终结。 |
PROCEDURAL POSTURE | |
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Upon trial, the court of the original instance found that: on November 7, 2005, the plaintiff, Peng Lijing, and the defendant, Liang Xiping, together as Party A, entered into a contract with the defendant, Wang Baoshan, and Wang Junshi, together as Party B, on the transfer of equities of Gold Coast Company and relevant matters. In particular: 1. Business status of the company: 1.1 Gold Coast Company was established on January 27, 2005 with registered capital of 8 million yuan. Liang Xiping and Peng Lijing made contributions of 6.4 million yuan and 1.6 million yuan and held shares of 80% and 20% respectively. 1.2 On February 5, 2005, Hebei Army Reserve Infantry Division (hereinafter referred to as “Reserve Division”) transferred its land in the Gaozhuang barracks area in the form of transfer of land by bidding, and Gold Coast company won the bid. On March 8 of the same year, Gold Coast company concluded a Military Land Transfer Contract with the Reserve Division. On March 8 of the same year, the General Logistics Department of the People's Liberation Army approved the Reserve Division to transfer the lots, Jingji No. 2819, No.2766 and No.2767, located at Gaozhuang Village, Huolu Town, Luquan City, Hebei Province, totally 277,014.3 sq.m. (38,232 sq.m. of demolished houses) to Gold Coast company through an Official Reply on Issues concerning the Transfer of Some Land by the Hebei Army Reserve Infantry Division (No. 568 [2005] of the General Logistics Department of the People's Liberation Army). While the transfer formalities were still being handled, Gold Coast Company paid land transfer fees and deposits of 8,640,300 yuan to the Bureau of Land Management of the General Logistics Department of the People's Liberation Army, the Joint Logistics Department of Beijing Military Region and the Reserve Division, and still needed to pay land transfer fees of 20,432,400 yuan. Gold Coast Company should be responsible for dealing with the removal of lessees (residents) and other remaining issues. 2. Equity value and equity shares: 2.1 Party A, Liang Xiping and Peng Lijing, had invested enormous human and financial resources to obtain the project. Upon consultation, both parties agreed that the value of equities held by Liang Xiping and Peng Lijing, the original shareholders of Gold Coast Company, should be 61.2 million yuan (including the land transfer fees and deposits of 8,640,300 yuan already paid to the army earlier and the land transfer fees of 20,432,400 yuan still to be paid to the Reserve Division), which should be transferred to Party B, Wang Baoshan and Wang Junshi. 2.2 Of the total equity value of 61.2 million yuan, Liang Xiping held 80%, 48.96 million yuan, and Peng Lijing held 20%, 12.24 million yuan. 3. Equity transfer: 3.1 Within 20 days after the conclusion of the contract, Party A, Liang Xiping, and Party B, Wang Baoshan, should start to perform the formalities for the transfer of 80% of the equities (Wang Baoshan may not pay the equity transfer fees at the moment and should pay under Article 7.1); Party A should assist Party B, Wang Baoshan, in handling the industrial and commercial registration modification of Gold Coast Company, at the expense of Party B, Wang Baoshan. The legal representative of the modified Gold Coast Company should be Wang Baoshan. At the same time, Party A, Liang Xiping, should deliver all accounts, statements, seals, bid winner notices and other relevant materials of Gold Coast Company to Party B, Wang Baoshan, according to a delivery list approved by both parties. 3.2 When Party B made the last payment for the debt as mentioned in Article 7.1 of this Contract, Party A, Peng Lijing, and Party B, Wang Junshi, should handle the formalities for the transfer of 20% of the equities of Gold Coast Company. Party A, Peng Lijing should assist Party B, Wang Junshi, in handling the industrial and commercial registration modification of Gold Coast Company, at the expense of Party B, Wang Junshi. 3.3 After the conclusion of this Contract, both parties should strictly implement it, and if there was any default, the defaulting party should, in addition to compensating the innocent party for direct losses, pay a fine of 2 million yuan. 4. Payment of the remaining land transfer fees: 4.1 Within 20 days after the conclusion of the Contract, Party B should pay the Reserve Division the land transfer fees of 15 million yuan (including two million yuan transferred earlier into the designated account of the Reserve Division) in the name of Gold Coast Company, and the Contract should come into force on the date when Party B made such payment. Party B, Wang Baoshan, should, on behalf of Gold Coast Company, directly negotiate with the Reserve Division about the remaining 5,432,400 yuan. 4.2 If the Military Land Transfer Contract could not be fulfilled for issues on the payment of the remaining land transfer fees, Party B should pay liquidated damages of 30 million yuan to Party A, and Yahong Company and Longji Company as guarantors should bear the joint and several liability for the payment. 5. Transformation of unpaid equity transfer fees into creditor's rights: The value of equities held by Party A, Liang Xiping and Peng Lijing, was equivalent to RMB 61.2 million yuan. Party A, Liang Xiping, should transfer 80% of the equities of Gold Coast Company that he held to Party B, Wang Baoshan, and the transfer fees were equivalent to RMB 48.96 million yuan (including the land transfer fees of 20,432,400 yuan that should be paid to the Reserve Division), and the remaining 29,007,600 yuan should be paid by Wang Baoshan to Party A, Liang Xiping, within the time limit as stipulated in Article 7.1 of the Contract in the form of debt. Party A, Peng Lijing, should transfer 20% of the equities of Gold Coast Company that she held to Party B, Wang Junshi, and the transfer fees were equivalent to RMB 12.24 million yuan, which should be paid by Wang Junshi to Party A, Peng Lijing, within the time limit as stipulated in Article 7.1 of the Contract in the form of debt. 6. Other fees: The cost of 1,885,000 yuan arising from Gold Coast Company's removal of lessees (residents) on the land of this project should be paid by the modified Gold Coast Company, and any excess should be tackled by both parties through negotiation. 7. Disposal of creditor's rights and debts: 7.1 Within 10 days after the land use right certificate was modified to be under the name of the modified Gold Coast Company, Party B, Wang Baoshan, should pay Party A, Liang Xiping, 10 million yuan of debt, and for the remaining 30,767,600 yuan (including 12.24 million yuan owed to Party A, Peng Lijing), Party B should pay 10 million yuan every three months after paying initial 10 million yuan to Party A, and the last payment of 10,767,600 yuan should be settled before December 30, 2006. 13. This Contract should come into force after being signed by both parties, i.e. four persons and Gold Coast Company, and the guarantee contract should come into force after all the guarantors affixed their seals to it. Liang Xiping, Wang Baoshan, Gold Coast Company, Shijiazhuang Yuanda Municipal Engineering Co., Ltd. (hereinafter referred to as “Yuanda Company”), Yahong Company and Longji Company affixed their signatures or seals. Peng Lijing and Wang Junshi did not affix their signatures to the contract. In court, the plaintiff recognized the authenticity of this exhibit but refused to accept the content of the Contract, alleging that a party to the Contract was not qualified, a party's expression of intent was not true, the defendant, Liang Xiping, had no apparent authority to represent the plaintiff, Peng Lijing, and the defendant, Wang Baoshan, adduced no documentary evidence to prove that the plaintiff, Peng Lijing, had participated in the equity transfer. | |
原审法院审理查明：2005年11月7日，原告彭丽静和被告梁喜平作为甲方，与作为乙方的被告王保山和王军师签订了一份合同书，就转让金海岸公司股权及其相关事宜达成协议。其中：1．公司经营项目状况：1．1金海岸公司于2005年1月27日成立。注册资金800万元。梁喜平和彭丽静分别出资640万元和160万元，各自持有 80％和20％。1．2 2005年2月5日，经河北陆军预备役步兵师(以下简称预备役师)通过土地有偿转让竞价销售的形式转让其在高庄营区的土地，由金海岸公司中标；同年 3月8日金海岸公司与预备役师签订《军用土地转让合同》；同年3月8日中国人民解放军总后勤部以(2005)后营字第568号“关于河北陆军预备役步兵师转让部分土地事”的批复，同意预备役师将位于河北省鹿泉市获鹿镇高庄村，京冀字第2819、 2766、2767号三个坐落的277 014．3平方米土地(拆除房屋38 232平方米)转让给金海岸公司。目前转让手续正在办理之中，金海岸公司已经向“中国人民解放军总后勤部土地管理局”、“北京军区联勤部”以及“预备役师”缴纳土地转让费及定金共计 864．03万元，仍尚需再支付2043．24万元的土地转让费，并负责处理承租(住)户清退等遗留问题。2．股权价值及股权份额： 2．1甲方梁喜平、彭丽静为该项目的取得投入了大量的人力和财力。经甲乙双方协商同意，金海岸公司原股东梁喜平、彭丽静股权价值被认定为6120万元(含前期支付给部队的土地转让费及定金864．03万元和尚需再支付预备役师2043．24万元土地转让费)，并将该股权价值转让给乙方王保山和王军师。2．2 6120万元的股权总价值中梁喜平持有80％的股份，股权价值为4896万元，彭丽静持有20％的股份，股权价值 1224万元。3．股权转让：3．1合同签订后， 20日内甲方梁喜平及乙方王保山开始履行80％股权转让手续(王保山暂不出股权转让金，按7．1条约定的条款支付)，甲方协助乙方王保山进行金海岸公司的工商登记变更，费用由乙方王保山承担。变更后的金海岸公司法定代表人为王保山。同时甲方梁喜平按双方认可的交接清单内容，将金海岸公司所有账目、报表、印章、中标通知书等有关资料交乙方王保山处理。3．2当乙方支付本合同7．1条中所指债款最后一笔欠款时，甲方彭丽静与乙方王军师进行金海岸公司20％的股权转让手续。甲方彭丽静协助乙方王军师进行金海岸公司的工商登记变更，费用由乙方王军师承担。3．3本合同签订后，双方严格执行，如有违约，违约方除应赔偿守约方的直接损失外，另处200万元的罚金。4．剩余土地转让费支付：4．1合同签订后20日内，乙方以金海岸公司的名义支付预备役师土地转让费 1500万元(包括前期已打人预备役师指定账户的200万元)，乙方支付此款之日起合同生效。剩余543．24万元由乙方王保山代表金海岸公司直接与预备役师协商。4．2因剩余土地转让费支付问题，致使《军用土地转让合同》无法履行时，乙方向甲方支付违约金3000万元，由雅虹公司、隆基公司承担连带保证责任。5．未付股权转让金变债权的确立：甲方梁喜平、彭丽静股权价值折合人民币6120万元，甲方梁喜平将其持有的金海岸公司的80％股权转让给乙方王保山，其转让金折合人民币为4896万元(含应支付给预备役师2043．24万元土地转让费)，剩余欠款2900．76万元由王保山按合同7．1条约定期限以负债的方式支付给甲方梁喜平：甲方彭丽静将持有的金海岸公司的20％的股权转让给乙方王军师，其转让金折合人民币为1224万元，由王军师按本合同7．1条的约定期限以负债方式支付给甲方彭丽静。6．其他费用：金海岸公司在清理本项目土地上出租(住)户过程中，所发生的清偿费用188．5万元由变更后的金海岸公司承担，超出部分由甲乙双方协商解决，7．债权债务的处理：7．1土地使用权证变更至变更后的金海岸公司名下后，10日内乙方王保山向甲方梁喜平支付1000万元的债款，其余3076．76万元(含欠甲方彭丽静的1224万元)，乙方在支付给甲方 1000万元后每三个月支付1000万元，最后一笔为1076．76万元，于2006年12月 30日前结清。13．本合同自甲乙双方四人、金海岸公司签字后生效，各保证人盖章后保证合同生效。梁喜平、王保山、金海岸公司、石家庄市远大市政工程有限公司、雅虹公司、隆基公司签字、盖章。彭丽静、王军师没有在合同书上签字。庭审中，原告对该证据的真实性予以认可，但不认可该合同书的内容，认为其合同主体不合格，意思表示不真实，被告梁喜平没有当然的代理权代表原告彭丽静，被告王保山也没有书面证据证明原告彭丽静参与了股权转让过程。 |
On November 8, 2005, Gold Coast Company convened a shareholders' meeting, at which a resolution on the change of shareholder and transfer of capital contribution was adopted, i.e. the original shareholder, Liang Xiping, would transfer 80% of the equities of the company that he held to the new shareholder, Wang Baoshan, and other shareholders would waive their preemption. The signatures and fingerprints of Liang Xiping, Peng Lijing and Wang Baoshan were affixed to the resolution. During the investigation in court, no party raised any objection to the authenticity of this exhibit. The plaintiff, Peng Lijing, refused to recognize her signature and fingerprint thereon, and claimed that they were forged by Wang Baoshan and Liang Xiping. The defendant, Liang Xiping, admitted that the signature and fingerprint of the plaintiff, Peng Lijing, were affixed by him to the resolution. | |
2005年11月8日，金海岸公司召开股东会，通过了变更股东和转让出资额的决议，决定由原股东梁喜平出让其80％的股权给新股东王保山，其他股东放弃优先购买权。决议上有梁喜平、彭丽静、王保山三人签字和手印。庭审调查中，各方对该证据的真实性没有异议。原告彭丽静不认可其签字和手印，认为系王保山和梁喜平伪造。被告梁喜平承认原告彭丽静的签字和手印是其代签和代按的。 |
On November 23, 2005, Peng Lijing, Liang Xiping and Wang Baoshan adopted the amendment to the articles of association of Gold Coast Company, which changed the domicile of Gold Coast Company from 261 North Jianshe Avenue, Shijiazhuang City to 25 Hongqi Avenue, Shijiazhuang City; and the names of the shareholders of the Company from Liang Xiping and Peng Lijing to Wang Baoshan and Peng Lijing. The signatures and fingerprints of Liang Xiping, Peng Lijing and Wang Baoshan were affixed to the amendment. During the investigation in court, no party raised any objection to the authenticity of this exhibit. The plaintiff, Peng Lijing, refused to recognize her signature and fingerprint thereon, and alleged that they were forged by Wang Baoshan and Liang Xiping. The defendant, Liang Xiping, admitted that the signature and fingerprint of the plaintiff, Peng Lijing, on the amendment were affixed by him. | |
2005年11月23日，彭丽静、梁喜平、王保山三人通过了金海岸公司章程修正案，将金海岸公司住所地由石家庄市建设北大街261号修正为石家庄市红旗大街 25号；将公司股东姓名由梁喜平和彭丽静修正为王保山和彭丽静。修正案有梁喜平、彭丽静、王保山三人签字和手印。庭审调查中，各方对该证据的真实性没有异议。原告彭丽静不认可其签字和手印，认为系王保山和梁喜平伪造。被告梁喜平承认修正案上原告彭丽静的签字和手印是其代签和代按的。 |
After the conclusion of the equity transfer contract, on November 23, 2005, both parties conducted the modification of industrial and commercial registration of the company, changing one original shareholder from Liang Xiping to Wang Baoshan, who held 80% of the equities of the company, while the plaintiff, Peng Lijing, still held 20% of the equities of the company. Wang Baoshan paid the equity transfer fees of 49.44 million yuan in total to the couple, Liang Xiping and Peng Lijing. Specifically, he paid the Reserve Division the land transfer fees of 20,432,400 yuan in three times on September 28, September 29 and December 1, 2005 in name of Gold Coast Company, and paid the couple, Liang Xiping and Peng Lijing, the equity transfer fees of 29,007,600 yuan (including 100,000 yuan lent to the plaintiff, Peng Lijing, on September 30, 2005), totally 49.44 million yuan. In the court trial, the plaintiff, Peng Lijing, raised no objection to the authenticity of the payment receipt, but claimed that she did not affix her signature to any documentary evidence on the performance of the equity transfer contract except the loan document about 100,000 yuan that she borrowed on September 30, 2005, that the defendant, Wang Baoshan, adduced no evidence to show that the plaintiff, Peng Lijing, had received the equity transfer fees and therefore that the equity transfer fees had nothing to do with this case. The plaintiff, Peng Lijing, only borrowed 100,000 yuan, but the loan document was not an equity transfer contract and had nothing to do with the equity transfer fees. The defendant, Liang Xiping, raised no objection to the authenticity of the equity transfer fees of 49.44 million yuan and the payment receipt, but considered that the fund flow was completely controlled by himself and had noting to do with others. He admitted that the plaintiff, Peng Lijing, initially attended the negotiation of the equity transfer but left the negotiation later due to disputes. The final equity transfer contract was concluded behind the plaintiff, Peng Lijing, and the performance of the Contract and all payments were handled by him alone. | |
股权转让合同签订后，2005年11月 23日，双方变更了公司工商登记，将原股东梁喜平变更为王保山，占公司80％的股权，原告彭丽静仍持有公司20％的股权。王保山先后向梁喜平夫妇二人支付了股权转让款4944万元。其中，以金海岸公司的名义在2005年9月28日、9月29日、12月 1日分三次向预备役师支付土地转让金 2043．24万元，向梁喜平夫妇二人支付股权转让金2900．76万元(含2005年9月30日原告彭丽静借款10万元)，合计4944万元。庭审中，原告彭丽静对付款收据的真实性没有异议，但认为在所有履行股权转让合同的书面证据中，除2005年9月30日，原告彭丽静借款10万元的单据上有彭丽静的签字外，再没有原告的签字，被告王保山没有证据证明原告彭丽静接收了股权转让款，所以股权转让款与本案无关。原告彭丽静只是借款10万元，但借款单不是股权转让合同，与股权转让款无关。被告梁喜平对于股权转让款4944万元及付款收据的真实性没有异议。但认为款项的流动完全是由自己支配的，与他人无关。并且承认原告彭丽静在最初参与了股权转让的协商，但后来由于存在分歧就中止了谈判。最后的股权转让合同是在原告彭丽静不知情的情况下签订的，合同的履行及款项往来均由其一人经手。 |
On November 9, 2005, the plaintiff, Peng Lijing and the defendant, Liang Xiping, registered and established Hebei Hai'an Real Estate Development Co., Ltd. (hereinafter referred to as “Hai'an Company”) at the domicile of the original Gold Coast Company, with registered capital of 8 million yuan. Peng Lijing held 20% of the equities of the new company, while Liang Xiping held 80%, and Peng Lijing acted as the executive director and the legal representative of the company. | |
2005年11月9日，原告彭丽静与被告梁喜平在原金海岸公司住所地新注册成立了河北海岸房地产开发有限公司，注册资金800万元，彭丽静占公司的20％股份，梁喜平占公司的80％股份，彭丽静任执行董事，是该公司的法定代表人。 |
In order to prove that the plaintiff, Peng Lijing, knew the equity transfer, the defendant, Wang Baoshan, provided two witnesses to the court, the middleman, Yin Guangzong and the accountant of Longji Company, Qie Rongna. The middleman, Yin Guangzong, was deputy director of the Administrative Project Management Center of Shijiazhuang Municipal Development and Reform Commission, who introduced Liang Xiping to Wang Baoshan and participated in the whole process of the equity transfer of Gold Coast Company. The witness, Qie Rongna, was financial staff member of Longji Company, who participated in the early payment and the financial handover process of Gold Coast Company. In the court trial, Yin Guangzong testified that: “The participants included Liang and Peng and their attorneys as well as Wang and his attorney. The contract was drafted by an attorney named Zhao. Both parties were satisfied with the draft, negotiated and revised it under this framework, and worked out the Contract. Both parties signed the Contract in the office of Wang Baoshan. Thereafter, Wang Baoshan made a request for checking the originals approved by the army since what Liang Xiping brought with him during the process of negotiation were all photocopies. So, Peng Lijing took us to the army to check the originals, and after that, both parties continued to perform the Contract as agreed on and handled the transfer. Wang Baoshan paid 100,000 yuan firstly and 2 million yuan for the second time, and I am not aware of any payment thereafter. One year later, the couple, Peng Lijing and Liang Xiping, came to me again. Peng Lijing asked for additional 10 mu land for building their house on the basis of the original contract, and this caused some frictions between both parties. Peng Lijing and Liang Xiping went to my office together, and I tried to work on both parties. I asked them to make concessions, but I am not aware of the lawsuit later.” Qie Rongna testified that: “On September 28, 2005, I went to Qiaodong Branch with Liang Xiping as authorized by general manager Wang to send a check of one million yuan to the army, and on September 29, I went to the bank and sent another check of one million yuan to the army. The two million yuan was remitted from the accounts of Yahong Company and Longji Company respectively. The legal representatives of both Yahong Company and Longji Company were Wang Baoshan at that time. I asked Liang Xiping for the receipt, but he let me ask the army for it. When I went to the army for the receipt, it was on holiday, so the receipt had to be issued together at the time of the second payment. The receipt for the original payment was made up during the second payment on December 1, and I asked him to issue the receipt in twice. On September 30, general manager Wang asked me to bring 100,000 yuan to his office, Peng Lijing and Liang Xiping were there at that time, and Peng Lijing took the 100,000 yuan and signed an IOU. On January 14, 2006, another two colleagues of the company and I went to Gold Coast Company to take over the financial accounts. At the time, because there were problems with the accounts, the accountant of Gold Coast Company made a call to ask for instructions, and called the person on the other side of the line general manager Peng. The cashier also said that the stub page could not be issued without the consent of Peng Lijing.” | |
被告王保山为证明原告彭丽静对股权转让一事明知，向法庭提供了两位证人，中间人尹广宗以及隆基公司的会计郄荣娜。其中，中间人尹广宗系石家庄市发改委行政项目管理中心的副主任，被告梁喜平是通过他介绍认识的被告王保山，并且参与了金海岸公司股权转让的整个过程。证人郄荣娜是隆基公司的财务人员，参与了前期付款及金海岸公司财务交接过程。庭审中，证人尹广宗陈述：“参加的人员有梁与彭及其律师，还有王及其律师。关于合同的起草是由一个姓赵的律师作的，双方都满意，在此框架下双方又进行了谈判修改，后拟定了合同。双方在王保山的办公室签字。签字后，王保山提出要求看部队批的原件，因为谈判过程中梁喜平带的都是复印件，因此彭丽静带着我们到部队看的原件，看过原件后双方按合同约定往下继续履行，办理了过户，王保山付款第一次10万元，第二次200万元，后面付款情况就不清楚了。办完一年后，彭丽静、梁喜平夫妇二人又找我，彭丽静要求在原合同基础上再要 10亩地住房子，双方对此不愉快，彭丽静、梁喜平一块到我办公室，我给他们两个做工作，让双方都让让步。但后来诉讼的事就不清楚了。”证人郄荣娜陈述：“2005年9月28日，我受王总委托与梁喜平到桥东支行交支票，给部队100万元，9月29日我到银行交了另外一张支票给部队，金额是 100万元。这200万元分别从雅虹公司和隆基公司汇出。雅虹公司与隆基公司当时的法定代表人都是王保山。我向梁喜平要收据，他让我向部队要收据。我去要时部队放假了，所以到第二次付款时一块开的，后来在12月1日第二次付款时把原款项的收据给补上了，我让他分两次开的。9月30日，王总要我拿10万元到他办公室，当时彭丽静和梁喜平都在场，彭丽静接了10万元并打了欠条。2006年1月14日，我和公司其他两位同事到金海岸公司交接财务账目。当时账目上有问题，金海岸公司的会计打电话请示，称呼对方为彭总，出纳也说没有彭丽静的同意不能出存根联。” |
In regard to the testimonies of these two witnesses, the plaintiff, Peng Lijing, argued that Yin Guangzong stated at the very beginning that “his memory is not good and he cannot remember things clearly”, almost every sentence of his had such ambiguous words as “it seems to me” and therefore Yin Guangzong was not a qualified witness; Qie Rongna was the financial staff member of the company where Wang Baoshan acted as a shareholder and the chairman of the board of directors, and was a party of interest to the defendant, Wang Baoshan; and the testimonies of both witnesses should be inadmissible. The defendant, Liang Xiping, considered that the testimony of Yin Guangzong was not consistent with the statement of the defendant, Wang Baoshan, and should not be adopted; the testimony of Qie Rongna was isolated evidence and should not be accepted by the court either. | |
对于两位证人的证言，原告彭丽静认为证人尹广宗在一开始就声称自己“记忆力不好、记不准”，几乎每一句话都有“好像”这种模糊的词汇，因此尹广宗不具备证人资格。证人郄荣娜系王保山任股东和董事长的公司财务人员，与被告王保山有利害关系，故两位证人的证言不能作为证据使用。被告梁喜平认为证人尹广宗的证言与被告王保山的说法不一致，不应采信。证人郄荣娜的证言是孤证，法院也不应采信。 |
Peng Lijing filed a lawsuit on March 23, 2007, requesting the court to: 1. confirm that the relevant provisions of the equity transfer contract and the annex thereto signed by the defendants, Liang Xiping and Wang Baoshan, on transferring 20% of the equities of Gold Coast Company held by the plaintiff to another person at the price of RMB 12.24 million yuan had infringed upon the legitimate rights and interests of the plaintiff, and therefore had no legal binding force on the plaintiff; 2. confirm that the relevant provisions of the equity transfer contract and the annex thereto signed by the defendants, Liang Xiping and Wang Baoshan, on transferring 80% of the equities of Gold Coast Company held by the defendant, Liang Xiping, to the defendant, Wang Baoshan, at the price of RMB 48.96 million yuan had infringed upon the preemption and other legitimate rights and interests of the plaintiff, and should be void; and rule that the three defendants should conduct necessary formalities such as registration modification of the company to transfer 80% of the equities of Gold Coast Company held by Liang Xiping, which were transferred to Wang Baoshan, back to the plaintiff, so as to guarantee the plaintiff's realization of the preemption in accordance with law and prevent the equity value of the plaintiff from being damaged; and 3. the total lawsuit costs should be paid by the three defendants. | |
彭丽静于2007年3月23日提起诉讼，请求：1．确认被告梁喜平与王保山签订的股权转让合同书及其附件中有关将原告在金海岸公司的20％的股权以1224万元人民币转让给他人的约定侵犯了原告的合法权益，对原告没有法律约束力。2．确认被告梁喜平与王保山签订的股权转让合同书及其附件中有关将被告梁喜平在金海岸公司的80％的股权以4896万元人民币转让给被告王保山的约定侵犯了原告的优先购买权等合法权益，属无效约定。并判令三被告采取办理公司变更登记等必要手续，将被告王保山受让的被告梁喜平在金海岸公司的80％股权过户至原告，保障原告依法实现优先购买权，确保原告的股权价值不受损害。3．由三被告承担全部诉讼费用。 |
Upon trial, the court of original instance held that: the focal disputes between both parties were that: (1) whether Gold Coast Company had a judicial personality; (2) as a shareholder of Gold Coast Company, whether the defendant, Liang Xiping, had the right to act as an agent of the plaintiff, Peng Lijing, to enter into the equity transfer contract, resolution of the shareholders' meeting and amendment to the articles of association and whether the equity transfer contract had a binding force on the plaintiff, Peng Lijing; and (3) the validity of the equity transfer contract. | |
原审法院审理认为：双方争议的重点在于：1．金海岸公司是否具备法人人格。2．作为金海岸公司的股东，被告梁喜平是否有权代理原告彭丽静订立股权转让合同、股东会决议、公司章程修正案，该股权转让合同书对原告彭丽静是否具有约束力。3．股权转让合同书的效力。 |
As to the confirmation of Gold Coast Company's judicial personality, it could be found from the investigation in the court trial that, the defendant, Liang Xiping, and the plaintiff, Peng Lijing, were husband and wife, the couple made part of their community property as their respective contributions to a limited liability company which was registered and established as Gold Coast Company. In regard to this, the defendant, Wang Baoshan, contended that the couple, Peng Lijing and Liang Xiping, did not divide their community property, they were actually the all and the one though the registered shareholders were two people, and no shareholder relationship within the true meaning of the Company Law had been ever formed between the couple. So, he claimed that the judicial personality of Gold Coast Company should be denied. It should be clarified that the Company Law of China put no restrictions on the identity of shareholders, and it did not violate the prohibitive provisions of law that a couple made a joint investment to establish a limited liability company. Moreover, Article 23 of the Provisions on Several Issues on the Administration of Company Registration enacted by the State Administration for Industry and Commerce provided that “Where family members make a joint investment to establish a limited liability company, they must contribute their respective property as the registered capital, assume corresponding liabilities, and provide a written certificate or agreement on property division at the time of registration.” Therefore, a couple may make a joint investment to establish a limited liability company. Actually, contributing undivided community property by a husband and wife to establish a company did not necessarily damage the independency of corporate property of a company, and property division was only to meet the need for establishing a company and the requirements of the registration department. The investment proportion recorded in the industrial and commercial registration did not change or divide the community property of a husband and wife, nor should it be necessarily and simply deemed as a property agreement between a husband and wife. Therefore, it conformed to the Company Law that Peng Lijing and Liang Xiping contributed their undivided community property to establish Gold Coast Company, and Gold Coast Company had the independent judicial personality. The claim of the defendant, Wang Baoshan, was untenable, and should not be adopted by the court.
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关于金海岸公司法人人格的认定问题。通过庭审调查可知，被告梁喜平与原告彭丽静系夫妻关系，夫妻二人将共同共有财产中的一部分作为其各自在有限责任公司的出资，注册成立了金海岸公司。对此被告王保山认为彭丽静、梁喜平夫妇二人没有将夫妻共同共有财产进行分割，虽然登记的股东为两人，实质是一个集合整体，夫妻之间不构成真正意义上的《公司法》上的股东关系，主张金海岸公司法人人格应予否定。需要明确的是，我国《公司法》对股东之间并没有身份上的限制，夫妻双方共同投资设立有限责任公司并不违反法律禁止性规定。而国家工商行政管理局公布的《公司登记管理若干问题的规定》第二十三条又规定，“家庭成员共同出资设立有限责任公司，必须以各自拥有的财产作为注册资本，并各自承担相应的责任，登记时需要提交财产分割的书面证明或者协议。”因此，夫妻可以共同出资设立有限责任公司。实际上，以未分割的夫妻共同共有财产出资设立公司并不必然构成对公司法人财产独立性的损害，只是设立公司的需要，满足的是登记部门的要求。其在工商登记中显示的投资比例并不是对夫妻共同共有财产做出的改变和分割，也并不能当然的将工商登记中载明的投资比例简单地等同于夫妻之间的财产约定。所以彭丽静和梁喜平用未分割的夫妻共同共有财产出资成立金海岸公司，符合公司法的规定，金海岸公司具备独立法人人格。被告王保山的主张不能成立，该院不予采信。
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