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Guiding Case No. 15: Xuzhou Construction Machinery Group Co., Ltd. v. Chengdu Chuanjiao Industry and Trade Co., Ltd., et al. (Sales contract dispute)
指导案例15号:徐工集团工程机械股份有限公司诉成都川交工贸有限责任公司等买卖合同纠纷案
【法宝引证码】

Xuzhou Construction Machinery Group Co., Ltd. v. Chengdu Chuanjiao Industry and Trade Co., Ltd., et al. (Sales contract dispute) 指导案例15号:徐工集团工程机械股份有限公司诉成都川交工贸有限责任公司等买卖合同纠纷案
(Issued on January 31, 2013 as adopted by the Judicial Committee of the Supreme People's Court after deliberation) (最高人民法院审判委员会讨论通过 2013年1月31日发布)
Guiding Case No. 15 指导案例15号
Keywords: 关键词
civil; affiliated companies; personality confusion; joint and several liability 民事 关联公司 人格混同 连带责任
Key Points 裁判要点聊五分钱的天吗
1. Where there is overlapping or confusion in staff members, business and financial affairs of affiliated companies, which causes failure to differentiate each other's property and loss of independent personality, personality confusion is constituted. 1.关联公司的人员、业务、财务等方面交叉或混同,导致各自财产无法区分,丧失独立人格的,构成人格混同。
2. Where the personality confusion of affiliated companies seriously damage the interests of creditors, affiliated companies shall mutually assume joint and several liability for external debts. 2.关联公司人格混同,严重损害债权人利益的,关联公司相互之间对外部债务承担连带责任。
Relevant Legal Provisions爬数据可耻 相关法条
Article 4the General Principles of the Civil Law of the People's Republic of China菊花碎了一地 中华人民共和国民法通则》第四条
Paragraph 1 of Article 3 and paragraph 3 of Article 20 of the Company Law of the People's Republic of China 《中华人民共和国公司法》第三条第一款、第二十条第三款
Basic Facts 基本案情画风不对,如何相爱
Xuzhou Construction Machinery Group Co., Ltd. (plaintiff, hereinafter referred to as “XCMG”) alleged that: Chengdu Chuanjiao Industry and Trade Co., Ltd. (hereinafter referred to as “Chuanjiao Industry and Trade Company”) still owed it payment for goods, the personalities of Chengdu Chuanjiao Engineering Machinery Co., Ltd. (hereinafter referred to as “Chuanjiao Machinery Company”), Sichuan Ruilu Construction Engineering Co., Ltd. (hereinafter referred to as “Ruilu Company”), and Chuanjiao Industry and Trade Co., Ltd. were confused, and the personal assets of Wang Yongli, actual controller of these three companies, and shareholders of Chuanjiao Industry and Trade Company were confused with corporate assets. Therefore, these three companies should assume joint and several liability. XCMG requested the court to order Chuanjiao Industry and Trade Company to pay 10,916,405.71 yuan as owed payment for goods and the interest thereof; and Chuanjiao Machinery Company, Ruilu Company, and Wang Yongli et al. should assume joint and several liability for payment of the aforesaid debts. 原告徐工集团工程机械股份有限公司(以下简称徐工机械公司)诉称:成都川交工贸有限责任公司(以下简称川交工贸公司)拖欠其货款未付,而成都川交工程机械有限责任公司(以下简称川交机械公司)、四川瑞路建设工程有限公司(以下简称瑞路公司)与川交工贸公司人格混同,三个公司实际控制人王永礼以及川交工贸公司股东等人的个人资产与公司资产混同,均应承担连带清偿责任。请求判令:川交工贸公司支付所欠货款10916405.71元及利息;川交机械公司、瑞路公司及王永礼等个人对上述债务承担连带清偿责任。
Defendants Chuanjiao Industry and Trade Company, Chuanjiao Machinery Company, and Ruilu Company argued that: Though these three companies were associated, they were not confused, and Chuanjiao Machinery Company and Ruilu Company should not assume joint and several liability for the payment of debts owed by Chuanjiao Industry and Trade Company. 被告川交工贸公司、川交机械公司、瑞路公司辩称:三个公司虽有关联,但并不混同,川交机械公司、瑞路公司不应对川交工贸公司的债务承担清偿责任。
Wang Yongli et al. argued that: the personal properties of Wang Yongli et al. were not confused with the property of Chuanjiao Industry and Trade Company, and Wang Yongli et al. should not assume joint and several liability for the repayment of debts owed by Chuanjiao Industry and Trade Company. 王永礼等人辩称:王永礼等人的个人财产与川交工贸公司的财产并不混同,不应为川交工贸公司的债务承担清偿责任。
In trial, the court found that: Chuanjiao Machinery Company was founded in 1999 and its shareholders included No. 2 Company of Sichuan Road and Bridge Engineering Corporation, Wang Yongli, Ni Gang, and Yang Honggang et al. In 2001, shareholders were changed into Wang Yongli, Li Zhi, and Ni Gang. In 2008, shareholders were changed again into Wang Yongli and Ni Gang. Ruilu Company was founded in 2004 and its shareholders included Wang Yongli, Li Zhi, and Ni Gang. In 2007, shareholders were changed into Wang Yongli and Ni Gang. Chuanjiao Industry and Trade Company were founded in 2005 and its shareholders included Wu Fan, Zhang Jiarong, Ling Xin, Guo Shengli, Tang Weiming, Wu Jing, and Guo Yin. In 2007, He Wanqing became a shareholder. In 2008, shareholders were changed into Zhang Jiarong (holding 90% of shares) and Wu Fan (holding 10% of shares), and Zhang Jiarong was wife of Wang Yongli. In terms of company personnel, these three companies had the same manager Wang Yongli, the same financial chief Ling Xin, the same teller and accountant Lu Xin, and the same operator for industry and commerce formalities Zhang Meng; There was also overlapping in office holding of executives of these three companies, for instance, Guo Shengli held concurrent positions as deputy general manager of Chuanjiao Industry and Trade Company and manager of the marketing department of Chuanjiao Machinery Company, and the decision on exempting Guo Shengli from his position as deputy general manager of Chuanjiao Industry and Trade Company was made by Chuanjiao Machinery Company; Wu Fan was both the legal representative of Chuanjiao Industry and Trade Company and the administration manager of the General Affairs Department of Chuanjiao Machinery Company. In terms of company business, the business scope of these three companies registered in the administration for industry and commerce all involved construction machinery and some business was partially coincided, in which the business scope of Chuanjiao Industry and Trade Company was entirely covered by that of Chuanjiao Machinery Company; Chuanjiao Machinery Company was the sole dealer of XCMG in Sichuan region (except Panzhihua); however, the three companies were all engaged in the relevant business and they used the Business Manual of the Marketing Department and the Agreement on Secondary Distribution in the same format, and shared one settlement account. In external publicity, the three companies were not differentiated. On December 4, 2008, it was stated in the Notary Certificate issued by the Chongqing Notary Public Office that: Upon inquiry on the Internet, Chuanjiao Industry and Trade Company and Ruilu Company jointly recruited personnel on the relevant websites, and the contact means such as telephone number and fax number were the same; the recruitment information of Chuanjiao Industry and Trade Company and Ruilu Company included a large amount of contents on the publicity of Chuanjiao Machinery Company's development course, main business, and enterprising spirit; in some recruitment information of Chuanjiao Industry and Trade Company, the company profile of Chuanjiao Industry and Trade Company was all descriptions of Ruilu Company. In terms of financial affairs, the three companies shared settlement accounts. Capital flows in the amount up to 100 million yuan once occurred in the bank accounts of Ling Xin, Lu Xin, Tang Weiming, and Guo Shengli, the sources of capitals included funds of the three companies, and the basis for external payments was only the signature of Wang Yongli. In the receipts issued to clients by Chuanjiao Industry and Trade Company, some were affixed with the special seal for financial use of Chuanjiao Industry and Trade Company and some were affixed with the special seal for financial use of Ruilu Company; Where the three companies all entered into contracts and had business contacts with XCMG, the three companies jointly issued to XCMG a Statement that the other two companies were registered due to business expansion of Chuanjiao Industry and Trade Company, all creditors' rights and debts, and sales volume should be calculated in the name of Chuanjiao Industry and Trade Company, and future business contacts would be conducted in the name of Chuanjiao Industry and Trade Company to the greatest extent; in December 2006, Chuanjiao Industry and Trade Company and Ruilu Company jointly issued an Application to XCMG, requiring to calculate the performance and financial affairs in 2006 in the name of Chuanjiao Industry and Trade Company. 法院经审理查明:川交机械公司成立于1999年,股东为四川省公路桥梁工程总公司二公司、王永礼、倪刚、杨洪刚等。2001年,股东变更为王永礼、李智、倪刚。2008年,股东再次变更为王永礼、倪刚。瑞路公司成立于2004年,股东为王永礼、李智、倪刚。2007年,股东变更为王永礼、倪刚。川交工贸公司成立于2005年,股东为吴帆、张家蓉、凌欣、过胜利、汤维明、武竞、郭印,何万庆2007年入股。2008年,股东变更为张家蓉(占90%股份)、吴帆(占10%股份),其中张家蓉系王永礼之妻。在公司人员方面,三个公司经理均为王永礼,财务负责人均为凌欣,出纳会计均为卢鑫,工商手续经办人均为张梦;三个公司的管理人员存在交叉任职的情形,如过胜利兼任川交工贸公司副总经理和川交机械公司销售部经理的职务,且免去过胜利川交工贸公司副总经理职务的决定系由川交机械公司作出;吴帆既是川交工贸公司的法定代表人,又是川交机械公司的综合部行政经理。在公司业务方面,三个公司在工商行政管理部门登记的经营范围均涉及工程机械且部分重合,其中川交工贸公司的经营范围被川交机械公司的经营范围完全覆盖;川交机械公司系徐工机械公司在四川地区(攀枝花除外)的唯一经销商,但三个公司均从事相关业务,且相互之间存在共用统一格式的《销售部业务手册》、《二级经销协议》、结算账户的情形;三个公司在对外宣传中区分不明,2008年12月4日重庆市公证处出具的《公证书》记载:通过因特网查询,川交工贸公司、瑞路公司在相关网站上共同招聘员工,所留电话号码、传真号码等联系方式相同;川交工贸公司、瑞路公司的招聘信息,包括大量关于川交机械公司的发展历程、主营业务、企业精神的宣传内容;部分川交工贸公司的招聘信息中,公司简介全部为对瑞路公司的介绍。在公司财务方面,三个公司共用结算账户,凌欣、卢鑫、汤维明、过胜利的银行卡中曾发生高达亿元的往来,资金的来源包括三个公司的款项,对外支付的依据仅为王永礼的签字;在川交工贸公司向其客户开具的收据中,有的加盖其财务专用章,有的则加盖瑞路公司财务专用章;在与徐工机械公司均签订合同、均有业务往来的情况下,三个公司于2005年8月共同向徐工机械公司出具《说明》,称因川交机械公司业务扩张而注册了另两个公司,要求所有债权债务、销售量均计算在川交工贸公司名下,并表示今后尽量以川交工贸公司名义进行业务往来;2006年12月,川交工贸公司、瑞路公司共同向徐工机械公司出具《申请》,以统一核算为由要求将2006年度的业绩、账务均计算至川交工贸公司名下。
It was also found that: On May 26, 2009, when Lu Xin was inquired by the Economic Investigation Detachment of Xuzhou Public Security Bureau, he stated that at present, Chuanjiao Industry and Trade Company was bankrupt, but it was not cancelled. It was also found that the payment for goods that was not repaid to XCMG was actually 10,511,710.71 yuan. 另查明,2009年5月26日,卢鑫在徐州市公安局经侦支队对其进行询问时陈述:川交工贸公司目前已经垮了,但未注销。又查明徐工机械公司未得到清偿的货款实为10511710.71元。
Judgement 裁判结果
On April 10, 2011, the Intermediate People's Court of Xuzhou City, Jiangsu Province rendered a civil (No. 0065 [2009], First, Civil Division II, Xuzhou): (1) Chuanjiao Industry and Trade Company should, within ten days after this came into force, pay 10,511,710.71 yuan as payment for goods and the interest accrued from late payment to XCMG. (2) Chuanjiao Machinery Company and Ruilu Company should assume joint and several liability for the repayment of the aforesaid debts of Chuanjiao Industry and Trade Company. (3) The claims of XCMG against Wang Yongli, Wu Fan, Zhang Jiarong, Ling Xin, Guo Shengli, Tang Weiming, Guo Yin, He Wanqing, and Lu Xin should be dismissed. After this was pronounced, Chuanjiao Machinery Company and Ruilu Company appealed, deeming that: the facts found in the of first instance which determined the personality confusion of the three companies were unclear; and it lacked legal basis for the of first instance to determine that Chuanjiao Machinery Company and Ruilu Company should assume joint and several liability for the payment of debts owed by Chuanjiao Industry and Trade Company. In its defense, XCMG requested to affirm the of first instance. On October 19, 2011, the Higher People's Court of Jiangsu Province rendered a civil (No. 0107 [2011], Final, Commercial, Jiangsu): the appeals should be dismissed and the original should be affirmed. 江苏省徐州市中级人民法院于2011年4月10日作出(2009)徐民二初字第0065号民事判决:一、川交工贸公司于判决生效后10日内向徐工机械公司支付货款10511710.71元及逾期付款利息;二、川交机械公司、瑞路公司对川交工贸公司的上述债务承担连带清偿责任;三、驳回徐工机械公司对王永礼、吴帆、张家蓉、凌欣、过胜利、汤维明、郭印、何万庆、卢鑫的诉讼请求。宣判后,川交机械公司、瑞路公司提起上诉,认为一审判决认定三个公司人格混同,属认定事实不清;认定川交机械公司、瑞路公司对川交工贸公司的债务承担连带责任,缺乏法律依据。徐工机械公司答辩请求维持一审判决。江苏省高级人民法院于2011年10月19日作出(2011)苏商终字第0107号民事判决:驳回上诉,维持原判。
Judgement reasoning 裁判理由
In the effective , the court held that: As for the scope of appeal, the focus of dispute in the second instance was whether the personalities of Chuanjiao Machinery Company and Ruilu Company were confused with that of Chuanjiao Industry and Trade Company and whether Chuanjiao Machinery Company and Ruilu Company should assume joint and several liability for the repayment of debts owed by Chuanjiao Industry and Trade Company. 法院生效裁判认为:针对上诉范围,二审争议焦点为川交机械公司、瑞路公司与川交工贸公司是否人格混同,应否对川交工贸公司的债务承担连带清偿责任。
The corporate personality of Chuanjiao Industry and Trade Company were confused with those of Chuanjiao Machinery Company and Ruilu Company. (1) Personnel of these three companies were confused. The manager, financial chief, teller and accountant, and operator for industry and commerce formalities of these three companies were the same, there was cross-appointment of other management personnel, and the decisions on appointment and removal of personnel of Chuanjiao Industry and Trade Company were made by Chuanjiao Machinery Company. (2) Business of these three companies was confused. The actual business operations of the three companies all involved the relevant business of engineering machinery and there was sharing of sales manuals and distributorship agreements in the course of distribution; and there was information confusion in external publicity. (3) Financial affairs of these three companies were confused. The three companies used joint accounts and the signature of Wang Yongli served as specific basis for fund use. It failed to prove that the funds in the accounts and the distribution thereof were differentiated; the creditor's rights and debts, performance, financial affairs, and returned profits between the three companies and XCMG were all calculated under the name of Chuanjiao Industry and Trade Company. Therefore, factors that characterizing personalities of the three companies, including personnel, business, and financial affairs, were highly confused, which caused failure to differentiate each other's property. The three companies have lost their independent personalities, and personality confusion was constituted. 川交工贸公司与川交机械公司、瑞路公司人格混同。一是三个公司人员混同。三个公司的经理、财务负责人、出纳会计、工商手续经办人均相同,其他管理人员亦存在交叉任职的情形,川交工贸公司的人事任免存在由川交机械公司决定的情形。二是三个公司业务混同。三个公司实际经营中均涉及工程机械相关业务,经销过程中存在共用销售手册、经销协议的情形;对外进行宣传时信息混同。三是三个公司财务混同。三个公司使用共同账户,以王永礼的签字作为具体用款依据,对其中的资金及支配无法证明已作区分;三个公司与徐工机械公司之间的债权债务、业绩、账务及返利均计算在川交工贸公司名下。因此,三个公司之间表征人格的因素(人员、业务、财务等)高度混同,导致各自财产无法区分,已丧失独立人格,构成人格混同。
Chuanjiao Machinery Company and Ruilu Company should assume joint and several liability for the repayment of debts owed by Chuanjiao Industry and Trade Company. Independent corporate personality was a precondition for a company to independently assume liability as a legal person. It was provided in paragraph 1, Article 3 of the Company Law of the People's Republic of China (hereinafter referred to as the “Company Law”) that “A company is an enterprise legal person, which has independent legal person property and enjoys the right to legal person property. It shall bear the liabilities for its debts with all its property.” The independent property of a company was the physical guarantee for the company to independently assume liability, and the independent personality of a company was highlighted in its independent property. When affiliated companies failed to differentiate their properties, and lost their independent personalities, such affiliated companies lost basis for independently assuming liability. It was provided in paragraph 3, Article 20 of the Company Law that “Where any of the shareholders of a company evades the payment of its debts by abusing the independent status of legal person or the shareholder's limited liabilities, if it seriously injures the interests of any creditor, it shall bear several and joint liabilities for the debts of the company.” In the present case, though the three companies had independent legal persons in their registration in administrations for industry and commerce, the boundary was unclear and personalities were confused in fact. Chuanjiao Industry and Trade Company assumed the debts of all affiliated companies but it failed to repay them, and it enabled other affiliated companies to evade a huge amount of debts, which seriously damaged the interests of creditors. The aforesaid acts violated the objectives for the establishment of the corporate system and the principle of good faith, and the nature and harmful consequences of such acts were consistent with the circumstances as provided in paragraph 3, Article 20 of the Company Law. Therefore, in accordance with paragraph 3, Article 20 of the Company Law, Chuanjiao Machinery Company and Ruilu Company should assume joint and several liability for the payment of debts owed by Chuanjiao Industry and Trade Company. 川交机械公司、瑞路公司应当对川交工贸公司的债务承担连带清偿责任。公司人格独立是其作为法人独立承担责任的前提。《中华人民共和国公司法》(以下简称《公司法》)第三条第一款规定:“公司是企业法人,有独立的法人财产,享有法人财产权。公司以其全部财产对公司的债务承担责任。”公司的独立财产是公司独立承担责任的物质保证,公司的独立人格也突出地表现在财产的独立上。当关联公司的财产无法区分,丧失独立人格时,就丧失了独立承担责任的基础。《公司法》第二十条第三款规定:“公司股东滥用公司法人独立地位和股东有限责任,逃避债务,严重损害公司债权人利益的,应当对公司债务承担连带责任。”本案中,三个公司虽在工商登记部门登记为彼此独立的企业法人,但实际上相互之间界线模糊、人格混同,其中川交工贸公司承担所有关联公司的债务却无力清偿,又使其他关联公司逃避巨额债务,严重损害了债权人的利益。上述行为违背了法人制度设立的宗旨,违背了诚实信用原则,其行为本质和危害结果与《公司法》第二十条第三款规定的情形相当,故参照《公司法》第二十条第三款的规定,川交机械公司、瑞路公司对川交工贸公司的债务应当承担连带清偿责任。
     
     
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