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Guiding Case No. 8: Lin Fangqing v. Kailai Industrial Co., Ltd. of Changshu City and Dai Xiaoming (company dissolution dispute)
指导案例8号:林方清诉常熟市凯莱实业有限公司、戴小明公司解散纠纷案
【法宝引证码】

Lin Fangqing v. Kailai Industrial Co., Ltd. of Changshu City and Dai Xiaoming
(company dissolution dispute)@#
(Issued on April 9, 2012 as adopted by the Judicial Committee of the Supreme People's Court)@#
Guiding Case No. 8@#
Keywords:@#
civil; company dissolution; serious difficulty in business operations and management; company deadlock@#
's Key Points@#
Pursuant to Article 183 of the Company Law, “serious difficulty in business operations and management of a company” is one of the conditions for a shareholder to institute an action for company dissolution. To determine whether the business operations and management of a company are in serious difficulty, the operating status of the company's organizational structure should be analyzed comprehensively. Where a company is making profits but there is a long-term mechanism failure of its shareholders' meeting, there are serious obstacles in its internal management, and the company has entered a state of deadlock, the company may be determined to have serious difficulty in business operations and management. If other conditions as prescribed in the Company Law and relevant judicial interpretations are satisfied, the people's court may make a  to legally dissolve the company.@#
Relevant Legal Provisions@#
Article 183 of the Company Law of the People's Republic of China@#
Basic Facts@#
Plaintiff Lin Fangqing alleged that: Kailai Industrial Co., Ltd. of Changshu City (hereinafter referred to as “Kailai Company”) had serious difficulty in business operations and management and entered a deadlock that could not be settled otherwise, which had seriously damaged his rights and interests, and thus he requested the court to dissolve Kailai Company.@#
Defendants Kailai Company and Dai Xiaoming contended that: Kailai Company and its branches were in a good operating state and did not meet the conditions for company dissolution, the conflicts between Dai Xiaoming and Lin Fangqing could be settled otherwise, and judicial procedures should not be used for compulsory company dissolution.@#
The court found that: Lin Fangqing and Dai Xiaoming, as the shareholders of Kailai Company as established in January 2002, each held 50% of the shares of the company. Dai Xiaoming served as the legal representative and executive director of the company, while Lin Fangqing served as the general manager and supervisor of the company. As stated in the bylaws of Kailai Company, a resolution of a shareholders' meeting must be adopted by shareholders with more than 1/2 of all voting rights; however, a resolution regarding an increase or decrease of registered capital, a merger, a company dissolution, a change to company form, or an amendment to the company's bylaws must be adopted by shareholders with more than 2/3 of all voting rights. At a shareholders' meeting, shareholders should vote in proportion to their capital contributions. Beginning in 2006, conflicts between Lin Fangqing and Dai Xiaoming gradually emerged. On May 9 of the same year, Lin Fangqing proposed and issued a notice of a shareholders' meeting. However, as Dai Xiaoming opposed to Lin Fangqing's power to convene the meeting, the meeting was not held. On June 6, August 8, September 16, and October 10 and 17 of the same year, Lin Fangqing authorized his lawyer to issue letters to Kailai Company and Dai Xiaoming, stating that: because shareholder rights were seriously damaged, Lin Fangqing, as one of the shareholders with 1/2 of all voting rights at a shareholders' meeting of Kailai Company, had voted for a resolution for dissolution of Kailai Company and the resolution was adopted under the procedures stated in the bylaws of Kailai Company; Dai Xiaoming should provide financial account books and other materials of Kailai Company; and liquidation of Kailai Company should be conducted. On June 17, September 7, and October 13 of the same year, in reply letters, Dai Xiaoming stated that: the resolution made by Lin Fangqing at the shareholders' meeting was not legal, he did not agree to dissolve Kailai Company, and Lin Fangqing should turn over the financial materials of Kailai Company. On November 15 and 25 of the same year, Lin Fangqing once again issued letters to Kailai Company and Dai Xiaoming, demanding that Kailai Company and Dai Xiaoming provide financial account books and other materials of the company for inspection, the company's revenues be distributed, and the Company be dissolved.@#
The Management Committee of Jiangsu Changshu Garment Plaza (hereinafter referred to as the "Garment Plaza Management Committee") certified that Kailai Company was operating normally and offered to organize mediation between Lin Fangqing and Dai Xiaoming.@#
The court also found that: As stated in the bylaws of Kailai Company, a supervisor exercised the following powers: (1) inspect the financial affairs of the company; (2) oversee the executive director and managers regarding violations of laws, regulations, and company bylaws in the performance of their functions; (3) require directors and managers to make correction when their acts damaged company interests; and (4) propose the holding of an ad hoc shareholders' meeting. From June 1, 2006, Kailai Company had never held any shareholders' meeting. On December 15 and 16, 2009, the Garment Plaza Management Committee on two occasions brought together both sides for mediation but in vain.@#
On December 8, 2009, the Intermediate People's Court of Suzhou City, Jiangsu Province issued a civil  (No. 0277 [2006], First, Civil Division II, Intermediate, Suzhou) to dismiss the claims of Lin Fangqing. Lin Fangqing appealed. On October 19, 2010, the Higher People's Court of Jiangsu Province issued a civil  (No. 0043 [2010], Final, Commercial, HPC, Jiangsu) to revoke the original  and dissolve Kailai Company in accordance with law.@#
Judgment's Reasoning@#
In the effective , the court held that: First, Kailai Company had encountered serious difficulty in business operations and management. Pursuant to Article 183 of the Company Law and Article 1 of the Provisions (II) of the Supreme People's Court on Issues concerning the Application of the Company Law of the People's Republic of China (hereinafter referred to as the “Company Law Interpretation (II)”), when determining whether a company had serious difficulty in business operations and management, the operating status of its shareholders' meeting, board of directors or executive director, or board of supervisors or supervisor should be analyzed comprehensively. The “serious difficulty in business operations and management of a company” rested upon serious internal obstacles regarding the business management of the company, such as the mechanism failure of the shareholders' meeting that caused impossibility of making business decisions of the company, and should not be merely construed as operating difficulty such as capital shortage or heavy loss. In this case, Kailai Company only had two shareholders, Dai Xiaoming and Lin Fangqing, each holding 50% of the shares of the company. According to the bylaws of Kailai Company, “a resolution of a shareholders' meeting must be adopted by shareholders with more than 1/2 of all voting rights,” and both parties agreed that “more than 1/2” did not include the figure itself. Therefore, so long as the two shareholders had differences and refused to cooperate with each other, no effective voting was possible, which would undoubtedly affect the company's operations. Kailai Company had not held a single shareholders' meeting in four consecutive years and, with no effective resolutions of the shareholders' meeting, Kailai Company could not be managed by means of such resolutions. The shareholders' meeting mechanism had failed. Dai Xiaoming, as the executive director of Kailai Company and one of the two conflicting shareholders, was unable to execute shareholders' meeting resolutions in his management of Kailai Company. Lin Fangqing, as the supervisor of Kailai Company, was unable to normally perform his functions and play a supervisory role. Because the internal mechanisms of Kailai Company could no longer operate normally, causing impossibility of making business decisions of the company, the fact that the business operations and management of Kailai Company were in serious difficulty could not be changed even if the company was not in loss.@#
Second, as the internal operation mechanisms of Kailai Company had long failed, Lin Fangqing was unable to exercise his shareholder's rights and supervisor's powers for a long time, there was no means for him to achieve the purposes of his investment in Kailai Company, and his interests were seriously damaged. In addition, for a long time, the deadlock in Kailai Company could not be settled otherwise. According to Article 5 of the Company Law Interpretation (II), where the parties were unable to reach a consensus to maintain the company's continuing existence, the people's court should render a  in a timely manner. In this case, before instituting the action for company dissolution, Lin Fangqing attempted to settle his conflicts with Dai Xiaoming by other means, and the Garment Plaza Management Committee also organized mediation for both sides. However, both sides failed to reach an agreement. The courts of both first and second instance, cautious in using judicial means to mandate dissolution of a company, also conducted mediation actively but in vain.@#
Lin Fangqing held 50% of the shares of Kailai Company, meeting the condition in the Company Law that a shareholder instituting an action for dissolution of a company must hold 10% or more of the shares of the company.@#
In sum, Kailai Company met the conditions for a shareholder to institute an action for company dissolution as set out in the Company Law and the Company Law Interpretation (II). The court of second instance issued the above  in accordance with law from the perspective of fully protecting the lawful rights and interests of shareholders, rationally regulating the governance structure of a company, and promoting the sound and orderly development of China's market economy.

 

林方清诉常熟市凯莱实业有限公司、戴小明公司解散纠纷案 @#
(最高人民法院审判委员会讨论通过 2012年4月9日发布)
@#
指导案例8号@#
关键词@#
民事 公司解散 经营管理严重困难 公司僵局@#
裁判要点@#
公司法一百八十三条将“公司经营管理发生严重困难”作为股东提起解散公司之诉的条件之一。判断“公司经营管理是否发生严重困难”,应从公司组织机构的运行状态进行综合分析。公司虽处于盈利状态,但其股东会机制长期失灵,内部管理有严重障碍,已陷入僵局状态,可以认定为公司经营管理发生严重困难。对于符合公司法及相关司法解释规定的其他条件的,人民法院可以依法判决公司解散。@#
相关法条@#
中华人民共和国公司法》第一百八十三条@#
基本案情@#
原告林方清诉称:常熟市凯莱实业有限公司(简称凯莱公司)经营管理发生严重困难,陷入公司僵局且无法通过其他方法解决,其权益遭受重大损害,请求解散凯莱公司。@#
被告凯莱公司及戴小明辩称:凯莱公司及其下属分公司运营状态良好,不符合公司解散的条件,戴小明与林方清的矛盾有其他解决途径,不应通过司法程序强制解散公司。@#
法院经审理查明:凯莱公司成立于2002年1月,林方清与戴小明系该公司股东,各占50%的股份,戴小明任公司法定代表人及执行董事,林方清任公司总经理兼公司监事。凯莱公司章程明确规定:股东会的决议须经代表二分之一以上表决权的股东通过,但对公司增加或减少注册资本、合并、解散、变更公司形式、修改公司章程作出决议时,必须经代表三分之二以上表决权的股东通过。股东会会议由股东按照出资比例行使表决权。2006年起,林方清与戴小明两人之间的矛盾逐渐显现。同年5月9日,林方清提议并通知召开股东会,由于戴小明认为林方清没有召集会议的权利,会议未能召开。同年6月6日、8月8日、9月16日、10月10日、10月17日,林方清委托律师向凯莱公司和戴小明发函称,因股东权益受到严重侵害,林方清作为享有公司股东会二分之一表决权的股东,已按公司章程规定的程序表决并通过了解散凯莱公司的决议,要求戴小明提供凯莱公司的财务账册等资料,并对凯莱公司进行清算。同年6月17日、9月7日、10月13日,戴小明回函称,林方清作出的股东会决议没有合法依据,戴小明不同意解散公司,并要求林方清交出公司财务资料。同年11月15日、25日,林方清再次向凯莱公司和戴小明发函,要求凯莱公司和戴小明提供公司财务账册等供其查阅、分配公司收入、解散公司。@#
江苏常熟服装城管理委员会(简称服装城管委会)证明凯莱公司目前经营尚正常,且愿意组织林方清和戴小明进行调解。@#
另查明,凯莱公司章程载明监事行使下列权利:(1)检查公司财务;(2)对执行董事、经理执行公司职务时违反法律、法规或者公司章程的行为进行监督;(3)当董事和经理的行为损害公司的利益时,要求董事和经理予以纠正;(4)提议召开临时股东会。从2006年6月1日至今,凯莱公司未召开过股东会。服装城管委会调解委员会于2009年12月15日、16日两次组织双方进行调解,但均未成功。@#
裁判结果@#
江苏省苏州市中级人民法院于2009年12月8日以(2006)苏中民二初字第0277号民事判决,驳回林方清的诉讼请求。宣判后,林方清提起上诉。江苏省高级人民法院于2010年10月19日以(2010)苏商终字第0043号民事判决,撤销一审判决,依法改判解散凯莱公司。@#
裁判理由@#
法院生效裁判认为:首先,凯莱公司的经营管理已发生严重困难。根据公司法一百八十三条和《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定(二)》(简称《公司法解释(二)》)第一条的规定,判断公司的经营管理是否出现严重困难,应当从公司的股东会、董事会或执行董事及监事会或监事的运行现状进行综合分析。“公司经营管理发生严重困难”的侧重点在于公司管理方面存有严重内部障碍,如股东会机制失灵、无法就公司的经营管理进行决策等,不应片面理解为公司资金缺乏、严重亏损等经营性困难。本案中,凯莱公司仅有戴小明与林方清两名股东,两人各占50%的股份,凯莱公司章程规定“股东会的决议须经代表二分之一以上表决权的股东通过”,且各方当事人一致认可该“二分之一以上”不包括本数。因此,只要两名股东的意见存有分歧、互不配合,就无法形成有效表决,显然影响公司的运营。凯莱公司已持续4年未召开股东会,无法形成有效股东会决议,也就无法通过股东会决议的方式管理公司,股东会机制已经失灵。执行董事戴小明作为互有矛盾的两名股东之一,其管理公司的行为,已无法贯彻股东会的决议。林方清作为公司监事不能正常行使监事职权,无法发挥监督作用。由于凯莱公司的内部机制已无法正常运行、无法对公司的经营作出决策,即使尚未处于亏损状况,也不能改变该公司的经营管理已发生严重困难的事实。@#
其次,由于凯莱公司的内部运营机制早已失灵,林方清的股东权、监事权长期处于无法行使的状态,其投资凯莱公司的目的无法实现,利益受到重大损失,且凯莱公司的僵局通过其他途径长期无法解决。《公司法解释(二)》第五条明确规定了“当事人不能协商一致使公司存续的,人民法院应当及时判决”。本案中,林方清在提起公司解散诉讼之前,已通过其他途径试图化解与戴小明之间的矛盾,服装城管委会也曾组织双方当事人调解,但双方仍不能达成一致意见。两审法院也基于慎用司法手段强制解散公司的考虑,积极进行调解,但均未成功。@#
此外,林方清持有凯莱公司50%的股份,也符合公司法关于提起公司解散诉讼的股东须持有公司10%以上股份的条件。@#
综上所述,凯莱公司已符合公司法及《公司法解释(二)》所规定的股东提起解散公司之诉的条件。二审法院从充分保护股东合法权益,合理规范公司治理结构,促进市场经济健康有序发展的角度出发,依法作出了上述判决。@#

     
     
【法宝引证码】        北大法宝en.pkulaw.cn
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