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Notice by the Supreme People's Court of Issuing the Minutes of the National Courts' Civil and Commercial Trial Work Conference [Effective]
最高人民法院关于印发《全国法院民商事审判工作会议纪要》的通知 [现行有效]
【法宝引证码】

Notice by the Supreme People's Court of Issuing the Minutes of the National Courts' Civil and Commercial Trial Work Conference 

最高人民法院关于印发《全国法院民商事审判工作会议纪要》的通知

(No. 254 [2019] of the Supreme People's Court) (法〔2019〕254号)

Higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; Military Court of the People's Liberation Army; and Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region: 各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:
The Minutes of the National Courts' Civil and Commercial Trial Work Conference (hereinafter referred to as the “Conference Minutes”) was adopted in principle at the 319th meeting of the Civil and Administrative Specialized Committee of the Judicial Committee of the Supreme People's Court on September 11, 2019. In order to facilitate the further studying, understanding, and correct application of the Conference Minutes, you are hereby notified as follows: 《全国法院民商事审判工作会议纪要》(以下简称《会议纪要》)已于2019年9月11日经最高人民法院审判委员会民事行政专业委员会第319次会议原则通过。为便于进一步学习领会和正确适用《会议纪要》,特作如下通知:
I. Fully understanding the significance of the issuance of the “Conference Minutes”   一、充分认识《会议纪要》出台的意义
The Conference Minutes aimed at the difficult and controversial issues at the forefront of civil and commercial trials were discussed and decided by the Civil and Administrative Specialized Committee of the Judicial Committee of the Supreme People's Court, after comments from all aspects had been extensively requested. The issuance of the Conference Minutes is of great significance for harmonizing adjudicative approaches, regulating the discretion of judges, enhancing the openness, transparency, and predictability of civil and commercial trials, and improving judicial credibility. People's courts at all levels shall correctly grasp, understand, and apply the essential spirit and basic content of the Conference Minutes. 《会议纪要》针对民商事审判中的前沿疑难争议问题,在广泛征求各方面意见的基础上,经最高人民法院审判委员会民事行政专业委员会讨论决定。《会议纪要》的出台,对统一裁判思路,规范法官自由裁量权,增强民商事审判的公开性、透明度以及可预期性,提高司法公信力具有重要意义。各级人民法院要正确把握和理解适用《会议纪要》的精神实质和基本内容。
II. Organizing learning and training in a timely manner   二、及时组织学习培训
In order for people's courts at all levels to accurately grasp the ideas of the Conference Minutes as quickly as possible and to correctly understand and apply them in the trial of cases, people's courts at all levels shall organize learning and training in various forms, on the premise of properly handling the relationship between work and learning, and effectively give publicity. 为使各级人民法院尽快准确理解掌握《会议纪要》的内涵,在案件审理中正确理解适用,各级人民法院要在妥善处理好工学关系的前提下,通过多种形式组织学习培训,做好宣传工作。
III. Accurately grasping the applicable scope of the Conference Minutes   三、准确把握《会议纪要》的应用范围
The Conference Minutes, which are not judicial interpretations, cannot be cited as a basis for adjudication. For original jurisdiction and appellate jurisdiction cases pending after the Conference Minutes has been issued, people's courts may reason according to the relevant provisions of the Conference Minutes when specifically analyzing the reasons for the application of law in the “The court is of the view” section of adjudicative instruments. 纪要不是司法解释,不能作为裁判依据进行援引。《会议纪要》发布后,人民法院尚未审结的一审、二审案件,在裁判文书“本院认为”部分具体分析法律适用的理由时,可以根据《会议纪要》的相关规定进行说理。
Problems in application shall be escalated to the Supreme People's Court. 对于适用中存在的问题,请层报最高人民法院。
Supreme People's Court 最高人民法院
November 8, 2019 2019年11月8日
Minutes of the National Courts' Civil and Commercial Trial Work Conference 全国法院民商事审判工作会议纪要
Contents 目录
Introduction 引言
I. Connection between laws in the application of the General Provisions of the Civil Law 一、关于民法总则适用的法律衔接
II. Trial of company dispute cases 二、关于公司纠纷案件的审理
III. Trial of contract dispute cases 三、关于合同纠纷案件的审理
IV. Trial of guarantee dispute cases 四、关于担保纠纷案件的审理
V. Trial of cases related to disputes over protection of the rights and interests of financial consumers 五、关于金融消费者权益保护纠纷案件的审理
VI. Trial of securities dispute cases 六、关于证券纠纷案件的审理
VII. Trial of business trust dispute cases 七、关于营业信托纠纷案件的审理
VIII. Trial of property insurance contract dispute cases 八、关于财产保险合同纠纷案件的审理
IX. Trial of negotiable instruments dispute cases 九、关于票据纠纷案件的审理
X. Trial of bankruptcy dispute cases 十、关于破产纠纷案件的审理
XI. Trial of non-party remedy cases 十一、关于案外人救济案件的审理
XII. Procedural treatment of overlapping criminal and civil cases 十二、关于民刑交叉案件的程序处理
Introduction 引言
For the purposes of fully implementing the spirit of the 19th CPC National Congress, the Second and Third Plenary Sessions of the 19th CPC Central Committee, the Central Economic Work Conference, the Central Political and Legal Work Conference, and the National Financial Work Conference, researching how to further strengthen the civil and commercial trial work of people's courts in the current situation, focusing on improving the capabilities and level of civil and commercial trial work, and providing more powerful judicial services and guarantees for China's high-quality economic development of, the Supreme People's Court (“SPC”) held the National Courts' Civil and Commercial Trial Work Conference in Harbin, Heilongjiang province from July 3 to 4, 2019. Comrade Zhou Qiang, secretary of the leading Party members' group and president of the SPC, attended the conference and delivered a speech. The vice presidents charged with civil and commercial trial work and divisional chiefs undertaking civil and commercial trial tasks of higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government, the representatives of the Military Court of the People's Liberation Army, and the persons in charge of the relevant SPC departments attended the meeting at the main venue, and the other responsible comrades and civil and commercial trial judges of local people's courts at all levels attended the meeting by video at venues in various places. The representatives of the Commission for Political and Legal Affairs of the CPC Central Committee and the Legislative Affairs Commission of the Standing Committee of the National People's Congress, some deputies of the National People's Congress, the members of the National Committee of the Chinese People's Political Consultative Conference, the specially-invited supervisors of the SPC, experts, and scholars attended the meeting at invitation. 为全面贯彻党的十九大和十九届二中、三中全会以及中央经济工作会议、中央政法工作会议、全国金融工作会议精神,研究当前形势下如何进一步加强人民法院民商事审判工作,着力提升民商事审判工作能力和水平,为我国经济高质量发展提供更加有力的司法服务和保障,最高人民法院于2019年7月3日至4日在黑龙江省哈尔滨市召开了全国法院民商事审判工作会议。最高人民法院党组书记、院长周强同志出席会议并讲话。各省、自治区、直辖市高级人民法院分管民商事审判工作的副院长、承担民商事案件审判任务的审判庭庭长、解放军军事法院的代表、最高人民法院有关部门负责人在主会场出席会议,地方各级人民法院的其他负责同志和民商事审判法官在各地分会场通过视频参加会议。中央政法委、全国人大常委会法工委的代表、部分全国人大代表、全国政协委员、最高人民法院特约监督员、专家学者应邀参加会议。
According to the conference, for civil and commercial trial work, the correct political track shall be adhered to, and Xi Jinping Thought on Socialism with Chinese Characteristics in a New Era shall be used to arm the mind, guide practice, and promote work. First, adhering to absolute Part leadership. It is the essential characteristic and fundamental requirement of the socialist judicial system with Chinese characteristics and the changeless root and soul of people's courts. In civil and commercial trial work, the “consciousness of the need to maintain political integrity, think in big-picture terms, follow the leadership core, and keep in alignment” shall be effectively enhanced, the “confidence in the path, theory, system, and culture of socialism with Chinese characteristics” shall be bolstered, the “defense of the status of General Secretary Xi Jinping as the core of the CPC Central Committee and the whole Party and the authority and centralized and unified leadership of the CPC Central Committee” shall be achieved, and the path of the socialist rule of law with Chinese characteristics shall be unswervingly followed. Second, adhering to serving the big picture of the Party and the state. The situation shall be appreciated, close attention shall be paid to major economic and social changes, historic changes in the principal social contradiction, the diversity and changeability of various hidden risks in the context of the new era of socialism with Chinese characteristics, the consciousness and pertinence of serving the pig picture shall be heightened, voluntary action shall be taken, responsibilities shall be shouldered bravely, the dialectical relationship between handling cases according to the law and serving the big picture shall be effectively handled, and the focus shall be on implementing the major decisions and arrangements of the CPC Central Committee, safeguarding the fundamental interests of the people, and defending the unity of the rule of law. Third, adhering to justice for the people. A people-centered development ideology shall be firmly established, the people's standpoint shall be always adhered to, the people shall be kept in mind, the needs of the people shall be satisfied, and the civil and commercial trial work shall be effectively conducted with great feelings and a strong sense of responsibility towards the people. In the civil and commercial trial work, the core socialist values shall be advocated, attention shall be paid to the integration and balance of feelings, reason, and law, the law as a basis, convincing reasoning, and touching feelings shall be achieved, the law shall be clarified fairly and rigorously, reasons shall be provided in a stimulating manner, and thorough feelings shall be explained empathetically, so as to seek understanding and support from the people and community. A civil and commercial trial work mechanism that facilitates the people's litigations shall be established and improved. Fourth, adhering to the fair administration of the law. Fairness and justice is an inherent requirement of the socialist system with Chinese characteristics and the consistent proposition of the Party about governance of the country. The judiciary is the last line of defense to safeguard social fairness and justice, fairness and justice shall be regarded as the lifeline, fairness and justice shall be regarded as the value inscribed in the heart, and “endeavoring to enable the people to see in every judicial case that justice is served” shall be taken as a perpetual aim. 会议认为,民商事审判工作必须坚持正确的政治方向,必须以习近平新时代中国特色社会主义思想武装头脑、指导实践、推动工作。一要坚持党的绝对领导。这是中国特色社会主义司法制度的本质特征和根本要求,是人民法院永远不变的根和魂。在民商事审判工作中,要切实增强“四个意识”、坚定“四个自信”、做到“两个维护”,坚定不移走中国特色社会主义法治道路。二要坚持服务党和国家大局。认清形势,高度关注中国特色社会主义进入新时代背景下经济社会的重大变化、社会主要矛盾的历史性变化、各类风险隐患的多元多变,提高服务大局的自觉性、针对性,主动作为,勇于担当,处理好依法办案和服务大局的辩证关系,着眼于贯彻落实党中央的重大决策部署、维护人民群众的根本利益、维护法治的统一。三要坚持司法为民。牢固树立以人民为中心的发展思想,始终坚守人民立场,胸怀人民群众,满足人民需求,带着对人民群众的深厚感情和强烈责任感去做好民商事审判工作。在民商事审判工作中要弘扬社会主义核心价值观,注意情理法的交融平衡,做到以法为据、以理服人、以情感人,既要义正辞严讲清法理,又要循循善诱讲明事理,还要感同身受讲透情理,争取广大人民群众和社会的理解与支持。要建立健全方便人民群众诉讼的民商事审判工作机制。四要坚持公正司法。公平正义是中国特色社会主义制度的内在要求,也是我党治国理政的一贯主张。司法是维护社会公平正义的最后一道防线,必须把公平正义作为生命线,必须把公平正义作为镌刻在心中的价值坐标,必须把“努力让人民群众在每一个司法案件中感受到公平正义”作为矢志不渝的奋斗目标。
The conference is of the review that in the civil and commercial trial work, a correct trial concept shall be established. Attention shall be paid to dialectically understanding and accurately grasping the basic principles for civil and commercial trials such as freedom of contract, equal protection, good faith, and public order and good customs; attention shall be paid to establishing the basic thinking of the right of claim, the thinking of consistency between logic and value, and the thinking of the same judgments in the same cases, and adjudicative standards shall be harmonized by searching for cases of the same kind, referring to guiding cases, and other means, so as to effectively prevent the abuse of discretion; attention shall be paid to effectively handling the relationship between civil and commercial trials and administrative regulation, by a look-through trial thinking, the true will of parties shall be ascertained, and the true legal relationship shall be explored; special attention shall be paid to that the appearance theory is an academic abstract in the civil and commercial law, not a principle set out by the law in force, and that the law in force only provides for the specific rules that embody the appearance theory, such as good faith acquisition in Article 106 of the Real Right Law, apparent authority in Article 49 of the Contract Law and Article 172 of the General Provisions of the Civil Law, and representation beyond authority in Article 50 of the Contract Law, a judgment shall be made in accordance with the relevant specific legal rules in the trial practice, and application by analogy shall also be based on the circumstances and conditions established by the legal rules. In terms of the legal rules in force, the appearance theory is an exception intended to secure trading, generally applicable to trading in reasonable reliance on the appearance of rights or that of the declaration of will. For the relationship between actual right holders and nominal right holders, attention shall be paid to the substantive ownership of property rather than a sole dependence on the appearance of publication. In short, the applicable boundary of the appearance theory shall be accurately grasped in trial practice to avoid generalization and abuse. 会议指出,民商事审判工作要树立正确的审判理念。注意辩证理解并准确把握契约自由、平等保护、诚实信用、公序良俗等民商事审判基本原则;注意树立请求权基础思维、逻辑和价值相一致思维、同案同判思维,通过检索类案、参考指导案例等方式统一裁判尺度,有效防止滥用自由裁量权;注意处理好民商事审判与行政监管的关系,通过穿透式审判思维,查明当事人的真实意思,探求真实法律关系;特别注意外观主义系民商法上的学理概括,并非现行法律规定的原则,现行法律只是规定了体现外观主义的具体规则,如《物权法》第106条规定的善意取得,《合同法》第49条、《民法总则》第172条规定的表见代理,《合同法》第50条规定的越权代表,审判实务中应当依据有关具体法律规则进行判断,类推适用亦应当以法律规则设定的情形、条件为基础。从现行法律规则看,外观主义是为保护交易安全设置的例外规定,一般适用于因合理信赖权利外观或意思表示外观的交易行为。实际权利人与名义权利人的关系,应注重财产的实质归属,而不单纯地取决于公示外观。总之,审判实务中要准确把握外观主义的适用边界,避免泛化和滥用。
The conference built a basic consensus on some difficult legal issues in the current civil and commercial trial work, and its minutes are hereby taken as follows: 会议对当前民商事审判工作中的一些疑难法律问题取得了基本一致的看法,现纪要如下:
I. Connection between laws in the application of the General Provisions of the Civil Law   一、关于民法总则适用的法律衔接
According to the conference, between the implementation of the General Provisions of the Civil Law and that of the Civil Code, basic civil and commercial laws which are to be incorporated into the Civil Code but have not yet been revised such as the Real Right Law and the Contract Law and special civil and commercial laws which are not to be incorporated into the Civil Code such as the Company Law, the Securities Law, the Trust Law, the Insurance Law, and the Negotiable Instruments Law are all likely inconsistent with the General Provisions of the Civil Law. People's courts shall, in accordance with Article 92 of the Legislation Law, Article 11 of the General Provisions of the Civil Law, taking into account the rules of application of law such as new provisions superseding old provisions and special provisions superseding general provisions, properly handle the connection between the General Provisions of the Civil Law and related laws in accordance with the law, mainly the relationship with the General Principles of the Civil Law, the Contract Law, and the Company Law. 会议认为,民法总则施行后至民法典施行前,拟编入民法典但尚未完成修订的物权法合同法等民商事基本法,以及不编入民法典的公司法证券法信托法保险法票据法等民商事特别法,均可能存在与民法总则规定不一致的情形。人民法院应当依照《立法法》第92条、《民法总则》第11条等规定,综合考虑新的规定优于旧的规定、特别规定优于一般规定等法律适用规则,依法处理好民法总则与相关法律的衔接问题,主要是处理好与民法通则合同法公司法的关系。
1. [Relationship between the General Provisions of the Civil Law and the General Principles of the Civil Law and their application] The General Principles of the Civil Law not only specify some basic systems and general rules of the civil law, but also contracts, ownership and other property rights, intellectual property rights, civil liability, the application of foreign-related civil legal relationships, and other specific contents. The General Provisions of the Civil Law have basically absorbed the basic systems and general rules specified by the General Principles of the Civil Law and made supplements, improvements, and developments. Contracts, ownership and other property rights, civil liability, and other contents specified in the General Principles of the Civil Law need further coordinating and systematically integrating in the preparation of each books of the Civil Code. As the General Principles of the Civil Law remain in force after the implementation of the General Provisions of the Civil Law, for any discrepancy between the provisions of the General Provisions of the Civil Law and those of the General Principles of the Civil Law, the provisions of the General Provisions of the Civil Law shall apply, according to the rules of application of law that new provisions supersede old provisions. The SPC has formulated judicial interpretations on statute of limitations issues in accordance with the General Provisions of the Civil Law, while the judicial interpretations on statute of limitations formerly developed in accordance with the General Principles of the Civil Law remain applicable as long as they do not contravene the General Provisions of the Civil Law. 1.【民法总则民法通则的关系及其适用】民法通则既规定了民法的一些基本制度和一般性规则,也规定了合同、所有权及其他财产权、知识产权、民事责任、涉外民事法律关系适用等具体内容。民法总则基本吸收了民法通则规定的基本制度和一般性规则,同时作了补充、完善和发展。民法通则规定的合同、所有权及其他财产权、民事责任等具体内容还需要在编撰民法典各分编时作进一步统筹,系统整合。因民法总则施行后暂不废止民法通则,在此之前,民法总则民法通则规定不一致的,根据新的规定优于旧的规定的法律适用规则,适用民法总则的规定。最高人民法院已依据民法总则制定了关于诉讼时效问题的司法解释,而原依据民法通则制定的关于诉讼时效的司法解释,只要与民法总则不冲突,仍可适用。
2. [Relationship between the General Provisions of the Civil Law and the Contract Law and their application] According to the “two-phased” arrangement for the preparation of the Civil Code, the Book of Contracts, the Book of Real Rights, and other books of the Civil Code have been being prepared since the implementation of the General Provisions of the Civil Law. Once the Civil Code comes into force, the Contract Law will no longer be retained. Until that, disputes arising from contracts formed before the implementation of the General Provisions of the Civil Law shall, in principle, be settled by the relevant provisions of the Contract Law. For disputes arising from contracts formed after the implementation of the General Principles of the Civil Law, if the provisions thereon of the General Provisions of the Contract Law are inconsistent with those of the General Provisions of the Civil Law, the General Provisions of the Civil Law shall apply according to the rules of application of law that new provisions supersede old provisions. For example, for fraud and duress issues under the Contract Law, a party defrauded or under duress has the right to void the contract only if there is fraud or duress between the parties to the contract. According to the provisions of the General Provisions of the Civil Law, a party defrauded or under duress has the right to void the contract because of the fraud or duress committed by a third party. In addition, the Contract Law has made different provisions for the validity of contracts depending on the interests damaged by fraud and duress: if the interests of either party to a contract are damaged, the contract is voidable or modifiable; and if the national interest is damaged, the contract is null and void. The General Provisions of the Civil Law make no distinction and treat such a contract as voidable. As another example, with regard to the issue of unconscionability, the Contract Law treats unconscionability and exploitation of the other party's unfavorable position as two different types of causes rendering contracts voidable or modifiable, while the General Provisions of the Civil Law integrate the two types into one type of causes rendering contracts voidable. 2.【民法总则合同法的关系及其适用】根据民法典编撰工作“两步走”的安排,民法总则施行后,目前正在进行民法典的合同编、物权编等各分编的编撰工作。民法典施行后,合同法不再保留。在这之前,因民法总则施行前成立的合同发生的纠纷,原则上适用合同法的有关规定处理。因民法总则施行后成立的合同发生的纠纷,如果合同法“总则”对此的规定与民法总则的规定不一致的,根据新的规定优于旧的规定的法律适用规则,适用民法总则的规定。例如,关于欺诈、胁迫问题,根据合同法的规定,只有合同当事人之间存在欺诈、胁迫行为的,被欺诈、胁迫一方才享有撤销合同的权利。而依民法总则的规定,第三人实施的欺诈、胁迫行为,被欺诈、胁迫一方也有撤销合同的权利。另外,合同法视欺诈、胁迫行为所损害利益的不同,对合同效力作出了不同规定:损害合同当事人利益的,属于可撤销或者可变更合同;损害国家利益的,则属于无效合同。民法总则则未加区别,规定一律按可撤销合同对待。再如,关于显失公平问题,合同法将显失公平与乘人之危作为两类不同的可撤销或者可变更合同事由,而民法总则则将二者合并为一类可撤销合同事由。
For disputes arising between the implementation of the General Provisions of the Civil Law and that of the Civil Code, if the provisions thereon of the “Specific Provisions” of the Contract Law are inconsistent with the provisions of the General Provisions of the Civil Law, the “Specific Provisions” of the Contract Law shall apply, according to the rules of application of law that special provisions supersede general provisions. For example, the General Provisions of the Civil Law only provide for disclosed agency, not undisclosed agency under Article 402 and indirect agency under Article 403 of the Contract Law. Until the Civil Code comes into force, these two provisions shall remain in force. 民法总则施行后发生的纠纷,在民法典施行前,如果合同法“分则”对此的规定与民法总则不一致的,根据特别规定优于一般规定的法律适用规则,适用合同法“分则”的规定。例如,民法总则仅规定了显名代理,没有规定《合同法》第402条的隐名代理和第403条的间接代理。在民法典施行前,这两条规定应当继续适用。
3. [Relationship between the General Provisions of the Civil Law and the Company Law and their application] The relationship between the General Provisions of the Civil Law and the Company Law is that between a general law and a special commercial law. Section 1 General Rules and Section 2 For-Profit Legal Persons of Chapter III Legal Persons of the General Provisions of the Civil Law are basically refined in accordance with the relevant provisions of the Company Law and generally have the same spirit as the Company Law. Hence, when the part of the General Provisions of the Civil Law is involved, if the provisions are consistent, either the General Provisions of the Civil Law or the Company Law may apply; and if the provisions are inconsistent, the provisions of the Company Law shall apply in principle, according to Article 11 of the General Provisions of the Civil Law: “Where there are any special provisions on civil relations in any other law, such special provisions shall apply.” Nevertheless, exceptions shall be noted mainly in two aspects: First, regarding the same matter, if the General Provisions of the Civil Law are formulated to amend the relevant provisions of the Company Law, the General Provisions of the Civil Law shall apply. For example, paragraph 3, Article 32 of the Company Law states: “A company shall register each shareholder's name and capital contribution in the company registration authority. Where any of the registered items is changed, the company shall modify the registration. If the company fails to do so, it shall not, on the basis of the unregistered or un-modified registration item, stand up to any third party." Article 65 of the General Provisions of the Civil Law has replaced “not stand up to any third party” with “not be set up against bona fide opposite parties.” After the relevant legislative reasons have been requested, it may be believed that, in such cases, the provisions of the General Provisions of the Civil Law shall apply. Second, the General Provisions of the Civil Law has made additions on the basis of the provisions of the Company Law. For example, paragraph 2, Article 22 of the Company Law provides for the revocation of company resolutions, and Article 85 of the General Law of the Civil Law additionally states based on the article: “without prejudice to the civil legal relations formed between the for-profit legal person and bona fide opposite parties based on such a resolution.” In such a case, the General Provisions of the Civil Law shall also apply. 3.【民法总则公司法的关系及其适用】民法总则公司法的关系,是一般法与商事特别法的关系。民法总则第三章“法人”第一节“一般规定”和第二节“营利法人”基本上是根据公司法的有关规定提炼的,二者的精神大体一致。因此,涉及民法总则这一部分的内容,规定一致的,适用民法总则或者公司法皆可;规定不一致的,根据《民法总则》第11条有关“其他法律对民事关系有特别规定的,依照其规定”的规定,原则上应当适用公司法的规定。但应当注意也有例外情况,主要表现在两个方面:一是就同一事项,民法总则制定时有意修正公司法有关条款的,应当适用民法总则的规定。例如,《公司法》第32条第3款规定:“公司应当将股东的姓名或者名称及其出资额向公司登记机关登记;登记事项发生变更的,应当办理变更登记。未经登记或者变更登记的,不得对抗第三人。”而《民法总则》第65条的规定则把“不得对抗第三人”修正为“不得对抗善意相对人”。经查询有关立法理由,可以认为,此种情况应当适用民法总则的规定。二是民法总则公司法规定基础上增加了新内容的,如《公司法》第22条第2款就公司决议的撤销问题进行了规定,《民法总则》第85条在该条基础上增加规定:“但是营利法人依据该决议与善意相对人形成的民事法律关系不受影响。”此时,也应当适用民法总则的规定。
4. [Retroactivity of the General Provisions of the Civil Law] According to the principle of “non-retroactivity of law,” the General Provisions of the Civil Law are not retroactive in principle and thus may only apply to legal facts that occur after their implementation; for the legal facts that occurred before the implementation of the General Provisions of the Civil Law, the laws at the time of the legal facts shall apply; and if a certain legal fact occurred before the implementation of the General Provisions of the Civil Law, and its conduct continues after the implementation, the provisions of the General Provisions of the Civil Law shall apply. Nevertheless, exceptions shall be noted. Suppose legal facts occurred before the implementation of the General Provisions of the Civil Law, but the law at that time made no provisions thereon, and the General Provisions of the Civil Law contain such provisions. For example, the Contract Law has no provisions on false declaration of will and fraud by a third party, and after a dispute has occurred, the relevant provisions of the General Provisions of the Civil Law may be used as the basis for adjudication based on the rule that “a judge may not deny adjudication.” As another example, if a contract formed before the implementation of the General Provisions of the Civil Law is null and void under the law at the time of formation, but valid or voidable under the General Provisions of the Civil Law, the General Provisions of the Civil Law shall apply. 4.【民法总则的时间效力】根据“法不溯及既往”的原则,民法总则原则上没有溯及力,故只能适用于施行后发生的法律事实;民法总则施行前发生的法律事实,适用当时的法律;某一法律事实发生在民法总则施行前,其行为延续至民法总则施行后的,适用民法总则的规定。但要注意有例外情形,如虽然法律事实发生在民法总则来自北大法宝施行前,但当时的法律对此没有规定而民法总则有规定的,例如,对于虚伪意思表示、第三人实施欺诈行为,合同法均无规定,发生纠纷后,基于“法官不得拒绝裁判”规则,可以将民法总则的相关规定作为裁判依据。又如,民法总则施行前成立的合同,根据当时的法律应当认定无效,而根据民法总则应当认定有效或者可撤销的,应当适用民法总则的规定。
In cases where the General Provisions of the Civil Law are not retroactive, people's courts shall adjudicate according to the law at the time when the legal facts occur, but if the law at the time when the legal facts occur contains provisions which are neither specific nor ambiguous, for example, with regard to the legal consequences of unauthorized agency of which the principal denies the ratification, both the General Principles of the Civil Law and the Contract Law require that civil liability be borne by the actor, but fail to describe the nature and method of civil liability, and the General Provisions of the Civil Law have made clear and detailed provisions thereon, people's courts, when trying cases, may use the provisions of the General Provisions of the Civil Law as a reference for interpreting the provisions of the law at the time when the legal facts occur in the reasoning part of the adjudicative instruments. 民法总则无溯及力的场合,人民法院应当依据法律事实发生时的法律进行裁判,但如果法律事实发生时的法律虽有规定,但内容不具体、不明确的,如关于无权代理在被代理人不予追认时的法律后果,民法通则合同法均规定由行为人承担民事责任,但对民事责任的性质和方式没有规定,而民法总则对此有明确且详细的规定,人民法院在审理案件时,就可以在裁判文书的说理部分将民法总则规定的内容作为解释法律事实发生时法律规定的参考。
II. Trial of company dispute cases   二、关于公司纠纷案件的审理
According to the meeting, effectively trying company disputes is of great significance for protecting transaction security and investment security, stimulating economic vitality, and enhancing confidence in investment and entrepreneurship. The relationship between various stakeholders of companies such as creditors, shareholders, and companies shall be effectively coordinated in accordance with the law, the external and internal relationships of companies shall be effectively handled, and the relationship between corporate autonomy and judicial intervention shall be effectively solved. 会议认为,审理好公司纠纷案件,对于保护交易安全和投资安全,激发经济活力,增强投资创业信心,具有重要意义。要依法协调好公司债权人、股东、公司等各种利益主体之间的关系,处理好公司外部与内部的关系,解决好公司自治与司法介入的关系。
(1) The validity and performance of valuation adjustment mechanism agreements (一)关于“对赌协议”的效力及履行
A valuation adjustment mechanism agreement commonly known in practice, also known as the “VAM agreement,” is an agreement designed by an investor and a financing raiser when reaching an equity financing agreement to resolve the uncertainty of the future development of the target company, information asymmetry, and agency costs between the parties to the transaction, covering the adjustment the valuation of the future target company such as share repurchase and cash compensation. In terms of the parties to VAM agreements, there are agreements between investors and the shareholders or actual controllers of target companies, between investors and target companies, and between investors on one side and the shareholders of target companies and the target companies on the other side, among others. People's courts, when trying “VAM agreement” dispute cases, shall not only apply the relevant provisions of the Contract Law, but also the relevant provisions of the Company Law; and adhere to the principle of encouraging investors to invest in physical enterprises, especially technological innovation enterprises, so as to ease the problem of enterprises' financing difficulties to a certain extent, while implementing the principle of capital maintenance and that of protecting the lawful rights and interests of creditors so as to balance the interests of investors, companies' creditors, and companies in accordance with the law. The VAM agreements entered into between investors and the shareholders or actual controllers of target companies shall be determined valid, and their actual performance shall be supported, except for causes of nullity. There is no controversy in practice. However, whether the VAM agreements entered into between investors and target companies are valid and can actually be performed is controversial. In that regard, the following handling rules shall be grasped: 实践中俗称的“对赌协议”,又称估值调整协议,是指投资方与融资方在达成股权性融资协议时,为解决交易双方对目标公司未来发展的不确定性、信息不对称以及代理成本而设计的包含了股权回购、金钱补偿等对未来目标公司的估值进行调整的协议。从订立“对赌协议”的主体来看,有投资方与目标公司的股东或者实际控制人“对赌”、投资方与目标公司“对赌”、投资方与目标公司的股东、目标公司“对赌”等形式。人民法院在审理“对赌协议”纠纷案件时,不仅应当适用合同法的相关规定,还应当适用公司法的相关规定;既要坚持鼓励投资方对实体企业特别是科技创新企业投资原则,从而在一定程度上缓解企业融资难问题,又要贯彻资本维持原则和保护债权人合法权益原则,依法平衡投资方、公司债权人、公司之间的利益。对于投资方与目标公司的股东或者实际控制人订立的“对赌协议”,如无其他无效事由,认定有效并支持实际履行,实践中并无争议。但投资方与目标公司订立的“对赌协议”是否有效以及能否实际履行,存在争议。对此,应当把握如下处理规则:
5. [VAM with target companies] In the absence of statutory causes nullifying the VAM agreement between an investor and the target company, if the target company claims the nullity of the VAM agreement only on the grounds of agreement on share repurchase or cash compensation, the people's court shall deny support; but if the investor claims actual performance, the people's court shall review whether it complies with the mandatory provisions of the Company Law that “no shareholder may illegally take away the registered capital” and on share repurchase and decide whether to support its claim. 5.【与目标公司“对赌”】投资方与目标公司订立的“对赌协议”在不存在法定无效事由的情况下,目标公司仅以存在股权回购或者金钱补偿约定为由,主张“对赌协议”无效的,人民法院不予支持,但投资方主张实际履行的,人民法院应当审查是否符合公司法关于“股东不得抽逃出资”及股份回购的强制性规定,判决是否支持其诉讼请求。
If an investor requests the target company to repurchase its shares, the people's court shall conduct a review in accordance with the mandatory provisions of Article 35 of the Company Law that “no shareholder may illegally take away the registered capital” or that of Article 142 on share repurchase. After review, if the target company has not completed the capital reduction procedures, the people's court shall reject its claim. 投资方请求目标公司回购股权的,人民法院应当依据《公司法》第35条关于“股东不得抽逃出资”或者第142条关于股份回购的强制性规定进行审查。经审查,目标公司未完成减资程序的,人民法院应当驳回其诉讼请求。
If the investor requests the target company to assume the obligation of cash compensation, the people's court shall conduct a review in accordance with the mandatory provisions of Article 35 of the Company Law that “no shareholder may illegally take away the registered capital” and that of Article 166 on profit distribution. After review, if the target company generates no profit, or insufficient profit to compensate the investor, the people's court shall reject or partially support its claim. When the target company generates profits in the future, the investor may also file a separate lawsuit based on that fact. 投资方请求目标公司承担金钱补偿义务的,人民法院应当依据《公司法》第35条关于“股东不得抽逃出资”和第166条关于利润分配的强制性规定进行审查。经审查,目标公司没有利润或者虽有利润但不足以补偿投资方的,人民法院应当驳回或者部分支持其诉讼请求。今后目标公司有利润时,投资方还可以依据该事实另行提起诉讼。
(2) Acceleration of shareholders' capital contributions and their voting rights (二)关于股东出资加速到期及表决权
6. [Whether shareholders' capital contributions should be accelerated] Under the registered capital subscription system, shareholders enjoy interests subject to a term according to the law. If a creditor requests shareholders with respect to which the period for capital contribution has not expired to assume supplementary liability for debts that the company is unable to pay, to the extent of the capital yet to be paid up, on the grounds that the company is unable to pay the debts due, the people's court shall deny support, except under the following circumstances: 6.【股东出资应否加速到期】在注册资本认缴制下,股东依法享有期限利益。债权人以公司不能清偿到期债务为由,请求未届出资期限的股东在未出资范围内对公司不能清偿的债务承担补充赔偿责任的,人民法院不予支持。但是,下列情形除外:
(a) In a case where the company is a judgment debtor, the people's court has exhausted enforcement measures, finding no property for enforcement, and despite of the existence of bankruptcy reasons, no application for bankruptcy is filed. (1)公司作为被执行人的案件,人民法院穷尽执行措施无财产可供执行,已具备破产原因,但不申请破产的;
(b) After the company has incurred debts, the company's shareholders' meeting (assembly) extends the shareholders' period for capital contribution by resolution or otherwise. (2)在公司债务产生后,公司股东(大)会决议或以其他方式延长股东出资期限的。
7. [Whether voting rights can be restricted] Whether a shareholder by whom the period for the capital contribution subscribed has not expired enjoys voting rights in relation to the unpaid part of the capital contribution, how to exercise the voting rights, and other questions shall be solved according to the company's bylaws. If the company's bylaws are silent, the questions shall be solved according to the proportion of its subscribed capital contribution. If the shareholders' meeting (assembly) makes a resolution to determine voting rights based on the proportions of actual capital contributions or other standards, instead of the proportions of subscribed capital contributions, and a shareholder requests the confirmation of the nullity of the resolution, the people's court shall review whether the resolution conforms to the voting procedures required to amend the company's bylaws, to wit, shareholders representing more than two-thirds of the voting rights grant approval. The people's court shall deny support, in the case of conformity, or grant support according to the law, in the case of a lack of conformity. 7.【表决权能否受限】股东认缴的出资未届履行期限,对未缴纳部分的出资是否享有以及如何行使表决权等问题,应当根据公司章程来确定。公司章程没有规定的,应当按照认缴出资的比例确定。如果股东(大)会作出不按认缴出资比例而按实际出资比例或者其他标准确定表决权的决议,股东请求确认决议无效的,人民法院应当审查该决议是否符合修改公司章程所要求的表决程序,即必须经代表三分之二以上表决权的股东通过。符合的,人民法院不予支持;反之,则依法予以支持。
(3) Share transfer (三)关于股权转让
8. [Changes in the shares of limited liability companies] Where parties transfer the shares of a limited liability company between themselves, and the transferee claims that it has acquired the shares on the grounds that its name has been entered in the registry of shareholders, the people's court shall grant support according to the law, unless the law or administrative regulations require the approval procedures to be completed, effecting the share transfer. If the change of shares is not registered with the company registration authority, there shall be no effect against the opposing party in good faith. 8.【有限责任公司的股权变动】当事人之间转让有限责任公司股权,受让人以其姓名或者名称已记载于股东名册为由主张其已经取得股权的,人民法院依法予以支持,但法律、行政法规规定应当办理批准手续生效的股权转让除外。未向公司登记机关办理股权变更登记的,不得对抗善意相对人。
9. [Validity of share transfer contracts infringing preemption] In trial practice, some people's courts have a misunderstanding of the provisions of Article 21 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China (IV) and often determine share transfer contracts to be null and void by reason of protecting other shareholders' preemption. To accurately understand the provisions of this article, it is necessary to pay attention to protecting the preemption of other shareholders and protecting the lawful rights and interests of the transferees of shares other than shareholders by correctly determining the validity of share transfer contracts entered into between the shareholders of a limited liability company and transferees of shares other than shareholders. On the one hand, other shareholders enjoy preemption according to the law, and if they claim the purchase of shares in accordance with the same conditions as agreed in share transfer contracts, their claim shall be supported, except under the circumstances specified in paragraph 1 of this article. On the other hand, in order to protect the lawful rights and interests of transferees of shares other than shareholders, share transfer contracts shall be determined to be valid except because of other causes that affect the validity of the contract. When other shareholders exercise preemption, the request of transferees of shares other than shareholders for continuing the performance of share transfer contracts cannot be supported, but their request by contract that transferor shareholders be subject to liability for breach of contract is not affected. 9.【侵犯优先购买权的股权转让合同的效力】审判实践中,部分人民法院对公司法司法解释(四)第21条规定的理解存在偏差,往往以保护其他股东的优先购买权为由认定股权转让合同无效。准确理解该条规定,既要注意保护其他股东的优先购买权,也要注意保护股东以外的股权受让人的合法权益,正确认定有限责任公司的股东与股东以外的股权受让人订立的股权转让合同的效力。一方面,其他股东依法享有优先购买权,在其主张按照股权转让合同约定的同等条件购买股权的情况下,应当支持其诉讼请求,除非出现该条第1款规定的情形。另一方面,为保护股东以外的股权受让人的合法权益,股权转让合同如无其他影响合同效力的事由,应当认定有效。其他股东行使优先购买权的,虽然股东以外的股权受让人关于继续履行股权转让合同的请求不能得到支持,但不影响其依约请求转让股东承担相应的违约责任。
(4) The disregard of the personality of companies (四)关于公司人格否认
The separate personality of a company and the limited liability of its shareholders are the basic principles of the Company Law. Disregarding the separate personality of a company to cause the shareholders who abuse the separate status of the company and the limited liability of shareholders to be subject to joint and several liability for the company's debts is an exception to the limited liability of shareholders, which is intended to redress the imbalance in the protection of creditors by the limited liability system when certain legal facts occur. In trial practice, the spirit of the provisions of paragraph 3, Article 20 of the Company Law shall be accurately grasped. First, the provisions apply only if a shareholder commits the abuse of the status of the company as a separate legal person and the limited liability of shareholders, and the abuse severely damages the interests of the creditors of the company. Damaging the interests of creditors mainly means that a shareholder so abuses its rights as to make the property of the company insufficient to pay the debts owed to the creditors of the company. Second, only a shareholder who has abused the status of the company as a separate legal person and the limited liability of shareholders shall be subject to joint and several liability for the debts of the company, and the other shareholders are not so subject. Third, disregarding the personality of a company is not a comprehensive, thorough, or permanent disregard of the legal person qualification of the company, but is to so ignore the general rule in specific cases based on specific legal facts and legal relationships that a shareholder be not liable for the debts of its company as to exceptionally order joint and several liability to be assumed. The effect of the judgment rendered by a people's court to disregard the personality of a company in a case extends only to the parties to the lawsuit and neither applies of right to any other lawsuit related to the company nor affects the continuity of the separate legal person qualification of the company. If another creditor files an action for disregard of the personality of the company, the facts found in the effective judgment may be used as evidence. Fourth, in practice, the abuse as mentioned in paragraph 3, Article 20 of the Company Law is commonly manifested as confusion of personalities, excess domination and control, and significant capital inadequacy. When a case is tried, a comprehensive judgment shall be made based on the ascertained facts of the case, so as to conduct prudent application as needed. In practice, there is a phenomenon that the exception system is misused because standards are not strictly grasped and a phenomenon of incompetence and excess cautiousness in application because of application difficulties as a result of the legal provisions being principles and abstract, to which great importance shall be attached. 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情形,旨在矫正有限责任制度在特定法律事实发生时对债权人保护的失衡现象。在审判实践中,要准确把握《公司法》第20条第3款规定的精神。一是只有在股东实施了滥用公司法人独立地位及股东有限责任的行为,且该行为严重损害了公司债权人利益的情况下,才能适用。损害债权人利益,主要是指股东滥用权利使公司财产不足以清偿公司债权人的债权。二是只有实施了滥用法人独立地位和股东有限责任行为的股东才对公司债务承担连带清偿责任,而其他股东不应承担此责任。三是公司人格否认不是全面、彻底、永久地否定公司的法人资格,而只是在具体案件中依据特定的法律事实、法律关系,突破股东对公司债务不承担责任的一般规则,例外地判令其承担连带责任。人民法院在个案中否认公司人格的判决的既判力仅仅约束该诉讼的各方当事人,不当然适用于涉及该公司的其他诉讼,不影响公司独立法人资格的存续。如果其他债权人提起公司人格否认诉讼,已生效判决认定的事实可以作为证据使用。四是《公司法》第20条第3款规定的滥用行为,实践中常见的情形有人格混同、过度支配与控制、资本显著不足等。在审理案件时,需要根据查明的案件事实进行综合判断,既审慎适用,又当用则用。实践中存在标准把握不严而滥用这一例外制度的现象,同时也存在因法律规定较为原则、抽象,适用难度大,而不善于适用、不敢于适用的现象,均应当引起高度重视。
10. [Confusion of personalities] For determining whether the personality of a company and that of a shareholder are united, the most fundamental test is whether the company has independent will and independent property, and the most important manifestation is whether the property of the company and that of the shareholder are so united as to be indistinguishable from each other. At the time of determining whether the confusion of personalities is committed, the following factors shall be taken into account: 10.【人格混同】认定公司人格与股东人格是否存在混同,最根本的判断标准是公司是否具有独立意思和独立财产,最主要的表现是公司的财产与股东的财产是否混同且无法区分。在认定是否构成人格混同时,应当综合考虑以下因素:
(a) The shareholder uses the cash or property of the company gratuitously, without keeping financial records. (1)股东无偿使用公司资金或者财产,不作财务记载的;
(b) The shareholder pays its debts by using the cash of the company, or permits an affiliate to use the cash of the company gratuitously, without keeping financial records. (2)股东用公司的资金偿还股东的债务,或者将公司的资金供关联公司无偿使用,不作财务记载的;
(c) The books of the company are not separated from the books of the shareholder, rendering the property of the company indistinguishable from that of the shareholder. (3)公司账簿与股东账簿不分,致使公司财产与股东财产无法区分的;
(d) The income of the shareholder is not separated from the profit of the company, rendering the interests of both parties unclear. (4)股东自身收益与公司盈利不加区分,致使双方利益不清的;
(e) The property of the company is recorded in the name of the shareholder and processed and used by the shareholder. (5)公司的财产记载于股东名下,由股东占有、使用的;
(f) The personalities are otherwise united. (6)人格混同的其他情形。
The confusion of personalities tends to happen in the following manners: the business of a company and that of any of its shareholders are united; the employees of the company and those of the shareholder are united, especially financial employees; and the domicile of the company and that of the shareholder are united. When a people's court tries a case, it is critical to review whether the confusion of personalities is committed, and the confusion in other aspects is not required concurrently, as it often only corroborates the confusion of personalities. 在出现人格混同的情况下,往往同时出现以下混同:公司业务和股东业务混同;公司员工与股东员工混同,特别是财务人员混同;公司住所与股东住所混同。人民法院在审理案件时,关键要审查是否构成人格混同,而不要求同时具备其他方面的混同,其他方面的混同往往只是人格混同的补强。
11. [Excess domination and control] If the controlling shareholder of a company excessively dominates and controls the company, manipulates the decision-making process of the company, and completely deprives the company of its independence, which degenerates into a tool or shell of the controlling shareholder, causing serious damage to the interests of the creditors of the company, the personality of the company shall be disregarded, and the shareholder that abuses its control shall be subject to joint and several liability for the debts owed by the company. Commonly seen circumstances in practice include: 11.【过度支配与控制】公司控制股东对公司过度支配与控制,操纵公司的决策过程,使公司完全丧失独立性,沦为控制股东的工具或躯壳,严重损害公司债权人利益,应当否认公司人格,由滥用控制权的股东对公司债务承担连带责任。实践中常见的情形包括:
(a) Tunneling between a parent and its subsidiaries or between subsidiaries. (1)母子公司之间或者子公司之间进行利益输送的;
(b) For a transaction between a parent and any of its subsidiaries or between subsidiaries, a party receives benefits, and the other party sustains losses. (2)母子公司或者子公司之间进行交易,收益归一方,损失却由另一方承担的;
(c) Cash is taken away from a company, and another company with the same or similar business purpose is subsequently established, so as to evade the debts owed by the original company. (3)先从原公司抽走资金,然后再成立经营目的相同或者类似的公司,逃避原公司债务的;
(d) A company is first dissolved, and another company with the same or similar business purpose is established by using the premises, equipment, and workforce of the original company, so as to evade the debts owed by the original company. (4)先解散公司,再以原公司场所、设备、人员及相同或者相似的经营目的另设公司,逃避原公司债务的;
(e) Otherwise exercising excess domination and control. (5)过度支配与控制的其他情形。
If a controlling shareholder or actual controller controls more than one subsidiary or affiliate and abuses its control to cause the subsidiaries or affiliates to have blurred property boundaries and financial confusion, exercise tunneling between them, be deprived of separate personality, degenerate into tools for the controlling shareholder to evade debts, operate illegally, and even violate the law and commit crimes, the legal personality of the subsidiaries or affiliates may be disregarded, taking into account the facts of the case, so as to order joint and several liability to be assumed. 控制股东或实际控制人控制多个子公司或者关联公司,滥用控制权使多个子公司或者关联公司财产边界不清、财务混同,利益相互输送,丧失人格独立性,沦为控制股东逃避债务、非法经营,甚至违法犯罪工具的,可以综合案件事实,否认子公司或者关联公司法人人格,判令承担连带责任。
12. [Significant capital inadequacy] “Significant capital inadequacy” means that, in the course of operation of a company after its establishment, the actual amount of capital invested by the shareholders in the company is significantly disproportionate to the risks potentially carried by the operations of the company. Shareholders use a relative small amount of capital to engage in operations beyond their capabilities, indicating that they do not operate their company in good faith, and in fact maliciously use the separate personality of the company and the limited liability of shareholders to transfer investment risks to creditors. As the test of significant capital inadequacy is vague, and especially, significant capital inadequacy should be distinguished from the normal operating mode of “seeking huge profit by low investment” adopted by companies, application shall be very prudential, and a comprehensive judgment shall be made, taking into account other factors. 12.【资本显著不足】资本显著不足指的是,公司设立后在经营过程中,股东实际投入公司的资本数额与公司经营所隐含的风险相比明显不匹配。股东利用较少资本从事力所不及的经营,表明其没有从事公司经营的诚意,实质是恶意利用公司独立人格和股东有限责任把投资风险转嫁给债权人。由于资本显著不足的判断标准有很大的模糊性,特别是要与公司采取“以小博大”的正常经营方式相区分,因此在适用时要十分谨慎,应当与其他因素结合起来综合判断。
13. [Litigant status] When trying a company personality disregard dispute case, the people's court shall determine the litigant status of the parties according to different circumstances: 13.【诉讼地位】人民法院在审理公司人格否认纠纷案件时,应当根据不同情形确定当事人的诉讼地位:
(a) If the debts owed by a debtor company to a creditor has been confirmed by effective adjudication, and the creditor files another action for disregard of the personality of the company, requesting shareholders to be jointly and severally liable for the debts owed by the company, the shareholders shall be defendants, and the company be a third party. (1)债权人对债务人公司享有的债权已经由生效裁判确认,其另行提起公司人格否认诉讼,请求股东对公司债务承担连带责任的,列股东为被告,公司为第三人;
(b) If, when suing over the debts owed by a debtor company, a creditor files an action for disregard of the personality of the company, requesting shareholders to bear joint and several liability for the debts owed by the company, the company and the shareholders shall be co-defendants. (2)债权人对债务人公司享有的债权提起诉讼的同时,一并提起公司人格否认诉讼,请求股东对公司债务承担连带责任的,列公司和股东为共同被告;
(c) If the debts owed by a debtor company to a creditor has not been confirmed by effective adjudication, and the creditor directly files an action for disregard of the personality of the company, requesting the shareholders of the company to bear joint and several liability for the debts of the company, the people's court shall explain to the creditor and so notify as to enable it to add the company as a co-defendant. If the creditor refuses to do so, the people's court shall make a ruling to dismiss its action. (3)债权人对债务人公司享有的债权尚未经生效裁判确认,直接提起公司人格否认诉讼,请求公司股东对公司债务承担连带责任的,人民法院应当向债权人释明,告知其追加公司为共同被告。债权人拒绝追加的,人民法院应当裁定驳回起诉。
(5) Liability of liquidation obligors of limited liability companies (五)关于有限责任公司清算义务人的责任
For the determination of the liquidation liability of the shareholders of limited liability companies, the results of some cases have inappropriately aggravated the liquidation liability of the shareholders. In particular, there have been some professional creditors in practice. They acquire large amounts of the “old debts” of zombie enterprises at ultra-low prices from other creditors and filed actions for forced liquidation against a large number of zombies. After receiving the recognition of the loss of the main property, books, and important documents, among others, of the companies from people's courts, the professional creditors requested the shareholders of the limited liability companies to assume joint and several liability for the debts of the companies, in accordance with paragraph 2, Article 18 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China (II). Some people's courts, without an accurate understanding of the applicable conditions of the above provisions, have rendered judgments that minority shareholders that have not been “slack in performing their obligations” or minority shareholders that have been “slack in performing their obligations” but have not caused the loss of the main property, books, and important documents, among others, of their companies be subject to liability for the debts of the companies in far excess of their capital contributions, resulting in an apparent interest imbalance. What needs to be specified is that the above-mentioned judicial interpretations on the provisions on the liquidation liability of shareholders of limited liability companies are of a nature that a shareholder shall be subject to tort liability for the impossibility of the liquidation of the company as a result of its slackness in performance of its liquidation obligations. In determining whether a shareholder of any limited liability company is subject to tort liability towards creditors, attention shall be paid to the following issues: 关于有限责任公司股东清算责任的认定,一些案件的处理结果不适当地扩大了股东的清算责任。特别是实践中出现了一些职业债权人,从其他债权人处大批量超低价收购僵尸企业的“陈年旧账”后,对批量僵尸企业提起强制清算之诉,在获得人民法院对公司主要财产、账册、重要文件等灭失的认定后,根据公司法司法解释(二)第18条第2款的规定,请求有限责任公司的股东对公司债务承担连带清偿责任。有的人民法院没有准确把握上述规定的适用条件,判决没有“怠于履行义务”的小股东或者虽“怠于履行义务”但与公司主要财产、账册、重要文件等灭失没有因果关系的小股东对公司债务承担远远超过其出资数额的责任,导致出现利益明显失衡的现象。需要明确的是,上述司法解释关于有限责任公司股东清算责任的规定,其性质是因股东怠于履行清算义务致使公司无法清算所应当承担的侵权责任。在认定有限责任公司股东是否应当对债权人承担侵权赔偿责任时,应当注意以下问题:
14. [Determination of slackness in performing liquidation obligations] “Slackness in performing obligations” in paragraph 2, Article 18 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China (II) means non-action that a shareholder of any limited liability company that is able to perform its liquidation obligations renders liquidation impossible by intentionally delaying in and denying the perform of its liquidation obligations, or due to its negligence, after the statutory cause of liquidation has arisen. If a shareholder adduces evidence that it has taken positive measures to perform its liquidation obligations, or a minority shareholder adduces evidence that it is not a member of the company's board of directors or supervisory board and has neither appointed any person as such a member nor participated in the operation and management of the company and claims that it is not be jointly and severally liable for the debts of the company on the grounds of not being “slack in performing obligations,” the people's court shall grant support in accordance with the law. 14.【怠于履行清算义务的认定】公司法司法解释(二)第18条第2款规定的“怠于履行义务”,是指有限责任公司的股东在法定清算事由出现后,在能够履行清算义务的情况下,故意拖延、拒绝履行清算义务,或者因过失导致无法进行清算的消极行为。股东举证证明其已经为履行清算义务采取了积极措施,或者小股东举证证明其既不是公司董事会或者监事会成员,也没有选派人员担任该机关成员,且从未参与公司经营管理,以不构成“怠于履行义务”为由,主张其不应当对公司债务承担连带清偿责任的,人民法院依法予以支持。
15. [Causation defense] If a shareholder of any limited liability company adduces evidence that there is no causal relationship between its non-action, “slackness in performing its obligations” and the result, “the loss of the main property, books, and important documents, among others, of the company and the impossibility of liquidation,” and claims that it is not subject to joint and several liability for the debts owed by the company, the people's court shall grant support. 15.【因果关系抗辩】有限责任公司的股东举证证明其“怠于履行义务”的消极不作为与“公司主要财产、账册、重要文件等灭失,无法进行清算”的结果之间没有因果关系,主张其不应对公司债务承担连带清偿责任的,人民法院依法予以支持。
16. [Period of limitation] If a creditor of any company requests shareholders to assume joint and several liability for the debts owed by the company, the shareholders make a defense that the period for the creditor of the company to file an action for the debts owed by the company has expired, and the defense is verified, the people's court shall grant support according to the law. 16.【诉讼时效期间】公司债权人请求股东对公司债务承担连带清偿责任,股东以公司债权人对公司的债权已经超过诉讼时效期间为由抗辩,经查证属实的,人民法院依法予以支持。
If a creditor of any company requests shareholders to assume joint and several liability for the debts owed by the company according to paragraph 2, Article 18 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China (II), the period of limitation shall run from the date on which the creditor of the company knows or should know of the impossibility of the company's liquidation. 公司债权人以公司法司法解释(二)第18条第2款为依据,请求有限责任公司的股东对公司债务承担连带清偿责任的,诉讼时效期间自公司债权人知道或者应当知道公司无法进行清算之日起计算。
(6) Companies giving guarantee for another person (六)关于公司为他人提供担保
For the validity of a contract that a company gives guarantee for another person, the adjudicative standards in trial practice are not uniform, which seriously affects judicial credibility, and need to be regulated. In that regard, the following shall be grasped: 关于公司为他人提供担保的合同效力问题,审判实践中裁判尺度不统一,严重影响了司法公信力,有必要予以规范。对此,应当把握以下几点:
17. [Representation beyond authority in violation of Article 16 of the Company Law] In order to prevent a legal representative from causing losses to the company and damage to the interests of minority shareholders by arbitrarily representing the company in giving guarantee for another person, Article 16 of the Company Law restricts the representation rights of legal representatives. According to the provisions of this article, giving guarantee is not a matter that can be decided by a legal representative alone, and the resolutions of the shareholders' (assembly) meeting, the board of directors, and other departments of the company must be the basis and source of authorization. If a legal representative gives guarantee for another person without authority, he or she commits representation without authority. People's courts shall determine the validity of a contract based on whether the creditor acts in good faith at the time of contracting, according to the provisions of Article 50 of the Contract Law on the legal representatives' representation beyond authority: if the creditor acts in good faith, the contract is valid; otherwise, the contract is null and void. 17.【违反《公司法》第16条构成越权代表】为防止法定代表人随意代表公司为他人提供担保给公司造成损失,损害中小股东利益,《公司法》第16条对法定代表人的代表权进行了限制。根据该条规定,担保行为不是法定代表人所能单独决定的事项,而必须以公司股东(大)会、董事会等公司机关的决议作为授权的基础和来源。法定代表人未经授权擅自为他人提供担保的,构成越权代表,人民法院应当根据《合同法》第50条关于法定代表人越权代表的规定,区分订立合同时债权人是否善意分别认定合同效力:债权人善意的,合同有效;反之,合同无效。
18. [Determination of good faith] For the purpose of the preceding article, “good faith” means that a creditor does not know or should not know that the legal representative has entered into the guarantee contract beyond his authority. Article 16 of the Company Law provides differently for the resolution-making departments for related-party guarantee and non-related-party guarantee, and correspondingly, there should be differences in the standards of good faith. First, for related-party guarantee given for the shareholders or actual controllers of a company, Article 16 of the Company Law clearly provides for a resolution by the shareholders' meeting (assembly), and without such a resolution, representation beyond authority is committed. In that case, a creditor claiming that the guarantee contract is valid shall provide evidence that it reviewed the resolution of the shareholders' meeting (assembly) at the time of contracting, the procedure for voting on the resolution was in compliance with Article 16 of the Company Law, to wit, the resolution was adopted by the shareholders holding a majority of voting rights present at the meeting, excluding the voting rights of the secured shareholders, and the signatories also complied with the provisions of the company's bylaws. Second, for non-related-party guarantee given by a company for persons other than its shareholders or actual controllers, the bylaws of the company may provide for a resolution either by the board of directors or by the shareholders' meeting (assembly), according to Article 16 of the Company Law. Regardless of whether the bylaws provide for a resolution-making department, or whether the bylaws provide for the board of directors or the shareholders' meeting (assembly) as the resolution-making department, as long as a creditor proves that it reviewed the resolution of the board of directors or that of the shareholders' meeting (assembly) at the time of entering into the guarantee contract and that the number of persons approving the resolution and the signatories complied with the bylaws of the company, the creditor shall be determined to have acted in good faith, unless the company proves that the creditor knows of the clear provisions of the company's bylaws on the resolution-making department, according to paragraph 3, Article 61 of the General Provisions of the Civil Law: “Any restriction on the legal representative's right of representation imposed by the bylaws or the supreme organ of the legal person shall not be set up against bona fide opposite parties.” 18.【善意的认定】前条所称的善意,是指债权人不知道或者不应当知道法定代表人超越权限订立担保合同。《公司法》第16条对关联担保和非关联担保的决议机关作出了区别规定,相应地,在善意的判断标准上也应当有所区别。一种情形是,为公司股东或者实际控制人提供关联担保,《公司法》第16条明确规定必须由股东(大)会决议,未经股东(大)会决议,构成越权代表。在此情况下,债权人主张担保合同有效,应当提供证据证明其在订立合同时对股东(大)会决议进行了审查,决议的表决程序符合《公司法》第16条的规定,即在排除被担保股东表决权的情况下,该项表决由出席会议的其他股东所持表决权的过半数通过,签字人员也符合公司章程的规定。另一种情形是,公司为公司股东或者实际控制人以外的人提供非关联担保,根据《公司法》第16条的规定,此时由公司章程规定是由董事会决议还是股东(大)会决议。无论章程是否对决议机关作出规定,也无论章程规定决议机关为董事会还是股东(大)会,根据《民法总则》第61条第3款关于“法人章程或者法人权力机构对法定代表人代表权的限制,不得对抗善意相对人”的规定,只要债权人能够证明其在订立担保合同时对董事会决议或者股东(大)会决议进行了审查,同意决议的人数及签字人员符合公司章程的规定,就应当认定其构成善意,但公司能够证明债权人明知公司章程对决议机关有明确规定的除外。
A creditor's review of the resolution by the department of a company shall be generally limited to formal review, the exercise of due care shall be only required, and the standards should not be too strict. If a company argues that any of its creditors acts in bad faith by causes that the resolution by its department is forged or altered by its legal representative, the resolution procedure is illegal, seals (signatures) are false, and the amount secured exceeds the legal limit, the people's court shall deny support, unless the company has evidence of the creditor's knowledge of the forgery or alteration of the resolution. 债权人对公司机关决议内容的审查一般限于形式审查,只要求尽到必要的注意义务即可,标准不宜太过严苛。公司以机关决议系法定代表人伪造或者变造、决议程序违法、签章(名)不实、担保金额超过法定限额等事由抗辩债权人非善意的,人民法院一般不予支持。但是,公司有证据证明债权人明知决议系伪造或者变造的除外。
19. [Exceptions not requiring resolutions] Under the following circumstances, even if a creditor knows or should know of the absence of a resolution from the company, the guarantee contract shall be determined to comply with the declaration of true will by the company and to be valid: 19.【无须机关决议的例外情况】存在下列情形的,即便债权人知道或者应当知道没有公司机关决议,也应当认定担保合同符合公司的真实意思表示,合同有效:
(a) The company is a guarantee company that gives guarantee for other persons, or a bank or non-bank financial institution that conducts letter of guarantee business. (1)公司是以为他人提供担保为主营业务的担保公司,或者是开展保函业务的银行或者非银行金融机构;
(b) The company gives guarantee to the creditor for the business activities of another company it directly or indirectly controls. (2)公司为其直接或者间接控制的公司开展经营活动向债权人提供担保;
(c) There is a commercial cooperation relationship such as mutual guarantees between the company and the principal debtor. (3)公司与主债务人之间存在相互担保等商业合作关系;
(d) The guarantee contract is signed and approved by shareholders individually or jointly holding more than two-thirds of the voting rights of the company. (4)担保合同系由单独或者共同持有公司三分之二以上有表决权的股东签字同意。
20. [Civil liability for guarantee given beyond authority] According to the foregoing three articles, if a guarantee contract is valid, and the creditor requests the company to assume guarantee obligations, the people's court shall grant support according to the law; and if the guarantee contract is null and void, and the creditor requests the company to assume guarantee obligations, the people's court shall deny support, but may proceed in accordance with the provisions of the Guarantee Law and relevant judicial interpretations on the nullity of guarantees. If the company adduces evidence of the creditor's knowledge that the legal representative has overstepped his or her authority, or the resolution has been forged or altered, and the creditor requests the company to assume the civil liability for the nullity of the contract, the people's court shall deny support. 20.【越权担保的民事责任】依据前述3条规定,担保合同有效,债权人请求公司承担担保责任的,人民法院依法予以支持;担保合同无效,债权人请求公司承担担保责任的,人民法院不予支持,但可以按照担保法及有关司法解释关于担保无效的规定处理。公司举证证明债权人明知法定代表人超越权限或者机关决议系伪造或者变造,债权人请求公司承担合同无效后的民事责任的,人民法院不予支持。
21. [Remedies] Where a legal representative causes damage to his or her company by giving guarantee beyond authority, and the company requests the legal representative to assume liability for compensation, the people's court shall grant support in accordance with the law. If the company fails to file an action, and its shareholders requests the legal representative to be liable for compensation according to the provisions of Article 151 of the Company Law, the people's court shall grant support in accordance with the law. 21.【权利救济】法定代表人的越权担保行为给公司造成损失,公司请求法定代表人承担赔偿责任的,人民法院依法予以支持。公司没有提起诉讼,股东依据《公司法》第151条的规定请求法定代表人承担赔偿责任的,人民法院依法予以支持。
22. [Listed companies giving guarantees for other persons] For a guarantee contract entered into by a creditor based on information publicly disclosed by a listed company that the guarantee matter has been approved by its board of directors or shareholders' assembly, the people's court shall determine it to be valid. 22.【上市公司为他人提供担保】债权人根据上市公司公开披露的关于担保事项已经董事会或者股东大会决议通过的信息订立的担保合同,人民法院应当认定有效。
23. [Rules of guarantee applying to accession to debt mutatis mutandis] When a legal representative makes an agreement with a debtor on accession to debt in the name of his or her company and notifies or informs the creditor that he or she is willing to accede to the debt, the issue on the validity of the agreement shall be handled according to the relevant rules of these Conference Minutes related to companies' giving guarantee for other persons. 23.【债务加入准用担保规则】法定代表人以公司名义与债务人约定加入债务并通知债权人或者向债权人表示愿意加入债务,该约定的效力问题,参照本纪要关于公司为他人提供担保的有关规则处理。
(7) Shareholder derivative actions (七)关于股东代表诉讼
24. [When to become a shareholder does not affect actions] When a shareholder files a shareholder derivative action, if defendant argues that the shareholder does not have standing on the ground that the plaintiff was not a shareholder of the company at the time of the conduct, the people's court shall deny support. 24.【何时成为股东不影响起诉】股东提起股东代表诉讼,被告以行为发生时原告尚未成为公司股东为由抗辩该股东不是适格原告的,人民法院不予支持。
25. [Correctly applying prerequisite procedures] According to Article 151 of the Company Law, one of the prerequisite procedures for a shareholder to bring a derivative action is that the shareholder must first request the relevant department of the company in writing to file an action in a people's court. In general, if a shareholder fails to follow the prerequisite procedure, its action shall be dismissed. However, the prerequisite procedure is about corporate governance in general, to wit, when a shareholder submits a written application to the relevant department of its company, there is possibility that the department will bring an action. If the relevant facts ascertained indicate that such possibility does not exist at all, a people's court shall not dismiss an action on the ground that plaintiff has not followed the prerequisite procedure. 25.【正确适用前置程序】根据《公司法》第151条的规定,股东提起代表诉讼的前置程序之一是,股东必须先书面请求公司有关机关向人民法院提起诉讼。一般情况下,股东没有履行该前置程序的,应当驳回起诉。但是,该项前置程序针对的是公司治理的一般情况,即在股东向公司有关机关提出书面申请之时,存在公司有关机关提起诉讼的可能性。如果查明的相关事实表明,根本不存在该种可能性的,人民法院不应当以原告未履行前置程序为由驳回起诉。
26. [Counterclaims in relation to shareholder derivative actions] If, after a shareholder has filed a shareholder derivative action in accordance with the provisions of paragraph 3, Article 151 of the Company Law, defendant files a counterclaim on the ground that plaintiff infringes its lawful rights and interests by the malicious action, the people's court shall grant acceptance. If a counterclaim filed by defendant against a company on the ground that the company should be subject to tort, breach of contract, or any other liability in the case-related dispute does not meet the requirements for counterclaims, the people's court shall make a ruling to deny acceptance; and if acceptance has been granted, a ruling shall be made to dismiss the action.
......
 26.【股东代表诉讼的反诉】股东依据《公司法》第151条第3款的规定提起股东代表诉讼后,被告以原告股东恶意起诉侵犯其合法权益为由提起反诉的,人民法院应予受理。被告以公司在案涉纠纷中应当承担侵权或者违约等责任为由对公司提出的反诉,因不符合反诉的要件,人民法院应当裁定不予受理;已经受理的,裁定驳回起诉。
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