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| Notice of the Supreme People's Court on Issuing the Third Group of Guiding Cases | | 最高人民法院关于发布第三批指导性案例的通知 |
(No. 227 [2012] of the Supreme People's Court) | |
（法〔2012〕227号） |
The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the 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： |
Upon discussion and decision of the Judicial Committee of the Supreme People's Court, the case of Shanghai Cunliang Trade Co., Ltd. v. Jiang Zhidong, Wang Weiming, et al. for sales contract dispute and other three cases (Guiding Case No. 9-12) are hereby issued as the third group of guiding cases for reference in trial of similar cases. | |
经最高人民法院审判委员会讨论决定，现将上海存亮贸易有限公司诉蒋志东、王卫明等买卖合同纠纷案等四个案例（指导案例9-12号），作为第三批指导性案例发布，供在审判类似案件时参照。 |
Supreme People's Court | |
最高人民法院 |
September 18, 2012 | |
2012年9月18日 |
Guiding Case No. 9 | |
指导案例9号 |
Shanghai Cunliang Trade Co., Ltd., v. Jiang Zhidong, Wang Weiming, et al.
(Sales contract dispute) | |
上海存亮贸易有限公司诉蒋志东、王卫明等买卖合同纠纷案 |
(Issued on September 18, 2012 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 2012年9月18日发布） |
Keywords: | |
关键词 |
civil; company liquidation obligation; joint and several liability for repayment | |
民事 公司清算义务 连带清偿责任 |
Judgment's Key Points | |
裁判要点 |
The shareholders of a limited liability company or the directors and controlling shareholders of a joint stock limited company shall legally perform their liquidation obligation after the company forfeits its business license and may not be relieved from such an obligation on the excuse that they are not the actual controllers or do not actually participate in the business operation and management of the company. | |
有限责任公司的股东、股份有限公司的董事和控股股东，应当依法在公司被吊销营业执照后履行清算义务，不能以其不是实际控制人或者未实际参加公司经营管理为由，免除清算义务。 |
Relevant Legal Provisions | |
相关法条 |
Articles 20 and 184 of the Company Law of the People's Republic of China | |
《中华人民共和国公司法》第二十条、第一百八十四条 |
Basic Facts | |
基本案情 |
Shanghai Cunliang Trade Co., Ltd. (plaintiff, hereinafter referred to as “Cunliang Company”) alleged that: It supplied steels to defendant Changzhou Tuoheng Machinery Equipment Co., Ltd. (hereinafter referred to as “Tuoheng Company”), and Tuoheng Company still owed it 1,395,228.6 yuan as payment for goods. Defendants Fang Hengfu, Jiang Zhidong and Wang Weiming were shareholders of Tuoheng Company. Tuoheng Company forfeited its business license for failure to undergo the annual inspection by the administration for industry and commerce. So far, no liquidation of this company had been organized. Cunliang Company's claims against Tuoheng Company could not be fulfilled because the defendants deliberately delayed performance of their obligation to liquidate Tuoheng Company, which caused losses to the assets of Tuoheng Company. According to the Company Law and the relevant judicial interpretations, Fang Hengfu, Jiang Zhidong and Wang Weiming should be jointly and severally liable for the debts of Tuoheng Company. Therefore, Cunliang Company requested the court to order that Tuoheng Company should repay Cunliang Company 1,395,228.6 yuan as payment for goods and pay Cunliang Company liquidated damages and that Fang Hengfu, Jiang Zhidong and Wang Weiming should assume joint and several liability for the repayment of the debts of Tuoheng Company. | |
原告上海存亮贸易有限公司（简称存亮公司）诉称：其向被告常州拓恒机械设备有限公司（简称拓恒公司）供应钢材，拓恒公司尚欠货款1395228.6元。被告房恒福、蒋志东和王卫明为拓恒公司的股东，拓恒公司未年检，被工商部门吊销营业执照，至今未组织清算。因其怠于履行清算义务，导致公司财产流失、灭失，存亮公司的债权得不到清偿。根据公司法及相关司法解释规定，房恒福、蒋志东和王卫明应对拓恒公司的债务承担连带责任。故请求判令拓恒公司偿还存亮公司货款1395228.6元及违约金，房恒福、蒋志东和王卫明对拓恒公司的债务承担连带清偿责任。 |
Defendants Jiang Zhidong and Wang Weiming argued that: (1) They had never participated in the business operation and management of Tuoheng Company. (2) Tuoheng Company was actually controlled by the majority shareholder, Fang Hengfu, and neither Jiang Zhidong nor Wang Weiming was able to conduct liquidation. (3) Due to poor business performance, Tuoheng Company had incurred a large amount of debts and been insolvent before forfeiture of its business license. It was not their delay in performing the liquidation obligation that caused the losses to the assets of Tuoheng Company. (4) Jiang Zhidong and Wang Weiming once retained lawyers to conduct liquidation of Tuoheng Company. However, the liquidation failed because Tuoheng Company's assets were snatched away by creditors many times. Neither Jiang Zhidong nor Wang Weiming delayed performance of their liquidation obligation. Therefore, Jiang Zhidong and Wang Weiming requested the court to dismiss the claims of Cunliang Company against them. | |
被告蒋志东、王卫明辩称：1.两人从未参与过拓恒公司的经营管理；2.拓恒公司实际由大股东房恒福控制，两人无法对其进行清算；3.拓恒公司由于经营不善，在被吊销营业执照前已背负了大量债务，资不抵债，并非由于蒋志东、王卫明怠于履行清算义务而导致拓恒公司财产灭失；4.蒋志东、王卫明也曾委托律师对拓恒公司进行清算，但由于拓恒公司财物多次被债权人哄抢，导致无法清算，因此蒋志东、王卫明不存在怠于履行清算义务的情况。故请求驳回存亮公司对蒋志东、王卫明的诉讼请求。 |
Defendants Tuoheng Company and Fang Hengfu failed to appear in court and did not submit any defense. | |
被告拓恒公司、房恒福未到庭参加诉讼，亦未作答辩。 |
In trial, the court found that: On June 28, 2007, Cunliang Company and Tuoheng Company entered into a steel sales contract. Cunliang Company performed its obligation of supplying goods worth 7,095,006.6 yuan, and Tuoheng Company paid 5,699,778 yuan for goods but still owed 1,395,228.6 yuan as payment for goods. In addition, Fang Hengfu, Jiang Zhidong and Wang Weiming, as shareholders of Tuoheng Company, held 40%, 30% and 30% of Tuoheng Company's shares, respectively. On December 25, 2008, Tuoheng Company forfeited its business license for failure to undergo the annual inspection by the administration for industry and commerce. So far, its shareholders had not organized liquidation of the company. At this point, Tuoheng Company had no office and business premises, and its account books and assets were all missing. In other cases against Tuoheng Company, enforcement had to be suspended because this company had no property for enforcement. | |
法院经审理查明：2007年6月28日，存亮公司与拓恒公司建立钢材买卖合同关系。存亮公司履行了7095006.6元的供货义务，拓恒公司已付货款5699778元，尚欠货款1395228.6元。另，房恒福、蒋志东和王卫明为拓恒公司的股东，所占股份分别为40％、30％、30％。拓恒公司因未进行年检，2008年12月25日被工商部门吊销营业执照，至今股东未组织清算。现拓恒公司无办公经营地，帐册及财产均下落不明。拓恒公司在其他案件中因无财产可供执行被中止执行。 |
Judgment | |
裁判结果 |
On December 8, 2009, the People's Court of Songjiang District, Shanghai Municipality issued a civil judgment (No. 1052 [2009], First, Civil Division II, Commercial, Songjiang): (1) Tuoheng Company should repay 1,395,228.6 yuan as payment for goods and pay relevant liquidated damages to Cunliang Company. (2) Fang Hengfu, Jiang Zhidong and Wang Weiming should assume joint and several liability for the repayment of the aforesaid debts of Tuoheng Company. After this judgment was pronounced, Jiang Zhidong and Wang Weiming appealed. On September 1, 2010, the No. 1 Intermediate People's Court of Shanghai Municipality issued a civil judgment (No. 1302 [2010], Final, Civil Division IV, Commercial, Shanghai) to dismiss their appeals and sustain the original judgment. | |
上海市松江区人民法院于2009年12月8日作出（2009）松民二（商）初字第1052号民事判决：一、拓恒公司偿付存亮公司货款1395228.6元及相应的违约金；二、房恒福、蒋志东和王卫明对拓恒公司的上述债务承担连带清偿责任。宣判后，蒋志东、王卫明提出上诉。上海市第一中级人民法院于2010年9月1日作出（2010）沪一中民四（商）终字第1302号民事判决：驳回上诉，维持原判。 |
Judgment's Reasoning | |
裁判理由 |
In the effective judgment, the court held that: After Cunliang Company supplied goods as agreed on, Tuoheng Company failed to make payment for goods as agreed on and therefore should assume the relevant liability for payment and liability for breach of contract. Fang Hengfu, Jiang Zhidong and Wang Weiming, as shareholders of Tuoheng Company, should organize liquidation in a timely manner after Tuoheng Company forfeited its business license. Due to their delay in performing the liquidation obligation, the major assets and the account books of Tuoheng Company were all extinguished, and liquidation became impossible. Such delay by Fang Hengfu, Jiang Zhidong and Wang Weiming violated the Company Law and relevant judicial interpretations. Fang Hengfu, Jiang Zhidong and Wang Weiming should assume joint and several liability for the repayment of the debts of Tuoheng Company. Since Tuoheng Company was a limited liability company, all of its shareholders should be legally liable as a whole for the liquidation of Tuoheng Company. Neither the Company Law nor the relevant judicial interpretations had any exceptions as asserted by Jiang Zhidong and Wang Weiming. Therefore, regardless of the shareholding of Jiang Zhidong and Wang Weiming in Tuoheng Company and any actual participation in the business operation and management of Tuoheng Company, they had the obligation to legally conduct liquidation of Tuoheng Company within the statutory time limit after Tuoheng Company forfeited its business license.Jiang Zhidong and Wang Weiming argued that Tuoheng Company had incurred a large amount of debts before forfeiture of its business license and therefore their delay in performing the liquidation obligation had no relevance to the losses caused to the assets of Tuoheng Company. On the basis of the facts found, the fact that enforcement in other cases against Tuoheng Company was suspended because it had no property for enforcement could only prove that the people's courts failed to find any property of Tuoheng Company during enforcement, rather than that all assets of Tuoheng Company had been extinguished before it forfeited its business license. There was causation between the delay in performing the liquidation obligation by the three shareholders of Tuoheng Company and the extinguishment of Tuoheng Company's assets and account books. Such defenses of Jiang Zhidong and Wang Weiming were unfounded. The retainer agreements under which Jiang Zhidong and Wang Weiming authorized lawyers to conduct liquidation and the certificates issued by the lawyer could only prove that Jiang Zhidong and Wang Weiming had planed to conduct liquidation of Tuoheng Company but the liquidation was, in fact, never conducted. It could not be determined that Jiang Zhidong and Wang Weiming had legally performed their liquidation obligation and such defenses of them should not be adopted. | |
法院生效裁判认为：存亮公司按约供货后，拓恒公司未能按约付清货款，应当承担相应的付款责任及违约责任。房恒福、蒋志东和王卫明作为拓恒公司的股东，应在拓恒公司被吊销营业执照后及时组织清算。因房恒福、蒋志东和王卫明怠于履行清算义务，导致拓恒公司的主要财产、帐册等均已灭失，无法进行清算，房恒福、蒋志东和王卫明怠于履行清算义务的行为，违反了公司法及其司法解释的相关规定，应当对拓恒公司的债务承担连带清偿责任。拓恒公司作为有限责任公司，其全体股东在法律上应一体成为公司的清算义务人。公司法及其相关司法解释并未规定蒋志东、王卫明所辩称的例外条款，因此无论蒋志东、王卫明在拓恒公司中所占的股份为多少，是否实际参与了公司的经营管理，两人在拓恒公司被吊销营业执照后，都有义务在法定期限内依法对拓恒公司进行清算。关于蒋志东、王卫明辩称拓恒公司在被吊销营业执照前已背负大量债务，即使其怠于履行清算义务，也与拓恒公司财产灭失之间没有关联性。根据查明的事实，拓恒公司在其他案件中因无财产可供执行被中止执行的情况，只能证明人民法院在执行中未查找到拓恒公司的财产，不能证明拓恒公司的财产在被吊销营业执照前已全部灭失。拓恒公司的三名股东怠于履行清算义务与拓恒公司的财产、帐册灭失之间具有因果联系，蒋志东、王卫明的该项抗辩理由不成立。蒋志东、王卫明委托律师进行清算的委托代理合同及律师的证明，仅能证明蒋志东、王卫明欲对拓恒公司进行清算，但事实上对拓恒公司的清算并未进行。据此，不能认定蒋志东、王卫明依法履行了清算义务，故对蒋志东、王卫明的该项抗辩理由不予采纳。 |
Guiding Case No. 10 | |
指导案例10号 |
Li Jianjun v. Shanghai Jiadongli Environmental Protection Technologies Co., Ltd. | |
李建军诉上海佳动力环保科技有限公司公司决议撤销纠纷案 |
(Dispute over revocation of a company's resolution) | |
（最高人民法院审判委员会讨论通过 2012年9月18日发布） |
(Issued on September 18, 2012 as adopted by the Judicial Committee of the Supreme People's Court after deliberation) | |
关键词 |
Keywords: civil; revocation of a company's resolution; scope of judicial review | |
民事 公司决议撤销 司法审查范围 |
Judgment's Key Points | |
裁判要点 |
In the trial of cases involving dispute over revocation of a company's resolution, the people's courts shall examine: whether the procedure for convening a meeting and the manner of voting violate laws, administrative regulations or company bylaws and whether the content of the resolution violates the company bylaws. If the aforesaid provisions are not violated, whether the facts based on which a resolution removes the general manager are true and whether the grounds are well-founded shall not fall within the scope of judicial review. | |
人民法院在审理公司决议撤销纠纷案件中应当审查：会议召集程序、表决方式是否违反法律、行政法规或者公司章程，以及决议内容是否违反公司章程。在未违反上述规定的前提下，解聘总经理职务的决议所依据的事实是否属实，理由是否成立，不属于司法审查范围。 |
Relevant Legal Provisions | |
相关法条 |
Paragraph 2, Article 22 of the Company Law of the People's Republic of China | |
《中华人民共和国公司法》第二十二条第二款 |
Basic Facts | |
基本案情 |
Plaintiff Li Jianjun alleged that: The facts and grounds based on which the resolution of Shanghai Jiadongli Environmental Protection Technologies Co., Ltd. (defendant, hereinafter referred to as “Jiadongli Company”) removed its general manager were unfounded and the procedure for convening the meeting of the board of directors, the manner of voting and the content of the resolution all violated the Company Law. Therefore, he requested the court to revoke the resolution of the board of directors according to law. | |
原告李建军诉称：被告上海佳动力环保科技有限公司（简称佳动力公司）免除其总经理职务的决议所依据的事实和理由不成立，且董事会的召集程序、表决方式及决议内容均违反了公司法的规定，请求法院依法撤销该董事会决议。 |
Defendant Jiadongli Company argued that: The procedure for convening the meeting of the board of directors, the manner of voting and the content of the resolution all complied with laws and company bylaws and therefore the resolution of the board of directors was valid. | |
被告佳动力公司辩称：董事会的召集程序、表决方式及决议内容均符合法律和章程的规定，故董事会决议有效。 |
In trial, the court found that: Li Jianjun was a shareholder and the general manager of Jiadongli Company. In the shareholding structure of Jiadongli Company, Ge Yongle held 40% of the Company's shares, Li Jianjun, 46%, and Wang Taisheng, 14%. These three shareholders jointly constituted the board of directors, in which Ge Yongle served as the chairman and the other two served as directors. As stated in the company bylaws, the board of directors exercised powers including appointment and removal of the company's managers; the quorum for a meeting of the board of directors was 2/3 or more of all directors; and a decision of the board of directors on matters deliberated was valid only when it was voted for by directors accounting for 2/3 or more of all shareholders. On July 18, 2009, Ge Yongle, the chairman of the board of directors of Jiadongli Company, convened and presided over a meeting of the board of directors, which all the three directors attended. At the meeting, a resolution that “in view of huge losses caused by general manager Li Jianjun for his trading of stock at the secondary market with funds of this company without the consent of the board of directors, Li Jianjun is hereby removed from his position as general manager, effective immediately” was adopted. Ge Yongle, Wang Taisheng and company supervisor affixed their signatures to the resolution. Li Jianjun did not sign it.
．．．．．． | |
法院经审理查明：原告李建军系被告佳动力公司的股东，并担任总经理。佳动力公司股权结构为：葛永乐持股40%，李建军持股46%，王泰胜持股14%。三位股东共同组成董事会，由葛永乐担任董事长，另两人为董事。公司章程规定：董事会行使包括聘任或者解聘公司经理等职权；董事会须由三分之二以上的董事出席方才有效；董事会对所议事项作出的决定应由占全体股东三分之二以上的董事表决通过方才有效。2009年7月18日，佳动力公司董事长葛永乐召集并主持董事会，三位董事均出席，会议形成了“鉴于总经理李建军不经董事会同意私自动用公司资金在二级市场炒股，造成巨大损失，现免去其总经理职务，即日生效”等内容的决议。该决议由葛永乐、王泰胜及监事签名，李建军未在该决议上签名。
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