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The No.1 Intermediate People's Court of Shanghai and the Pudong New Area People's Court of Shanghai Jointly Issue Ten Model Cases involving Judicial Guarantees for the Pilot Free Trade Zone [Effective]
上海一中院、上海浦东法院联合发布自贸区司法保障十大典型案例 [现行有效]
【法宝引证码】

The No.1 Intermediate People's Court of Shanghai and the Pudong New Area People's Court of Shanghai Jointly Issue Ten Model Cases involving Judicial Guarantees for the PFTZ 

上海一中院、上海浦东法院联合发布自贸区司法保障十大典型案例

(The No.1 Intermediate People's Court of Shanghai and the Pudong New Area People's Court of Shanghai, May 31, 2019) (2019年5月31日 上海市一中院、上海市浦东法院)

Model Cases Relating to the Pilot Free Trade Zone 涉自贸区典型案例
Since the establishment of the China (Shanghai) Pilot Free Trade Zone ("PFTZ") in 2013, the No.1 Intermediate People's Court of Shanghai (hereinafter referred to as the "Intermediate Court") and the Pudong New Area People's Court of Shanghai (hereinafter referred to as the "Pudong Court"), as courts in the PFTZ, tried a large number of civil, commercial, criminal, administrative, enforcement and other PFTZ-related cases. Since 2016, the Justice Forum for China Pilot Free Trade Zones has released model cases involving pilot free trade zones at each of its conventions, totaling 44 cases. This year, the Intermediate Court and the Pudong Court carefully selected ten representative cases to regulate and guide adjudication of PFTZ-related cases, sum up adjudicative experience, and promote the harmonization of application of law. 2013年上海自贸区成立后,上海市第一中级人民法院(以下简称:上海一中院)和上海市浦东新区人民法院(以下简称:浦东法院)作为自贸区所在地法院审理了大量民事、商事、刑事、行政和执行等涉自贸区案件。从2016年以来,每届自贸区论坛均发布涉自贸区典型案例,总计44件。今年,上海一中院和浦东法院精心筛选了十件具有代表性的案例,以规范和指导涉自贸区案件审判、总结审判经验、促进适法统一。
Case No. 1 案例一
Shen A v. K Company and Tang A et al. (Dispute over Company Dissolution) 沈某诉K公司、唐某等公司解散纠纷案
[Basic Facts] 【基本案情】
K Company was established on July 25, 2014. Shen A (here and below, given name withheld), Zhang A and Tang A were the shareholders of K Company, holding 30%, 30% and 40% of K Company's shares respectively. Tang A was its legal representative and chairman, and Shen A and Zhang A were its directors. On March 11, 2016, K Company's board of directors made a resolution, removing Tang A from the office of chairman, appointing Shen A as chairman and deputy general manager. On March 13, the same year, Shen A and Zhang A issued a Power of Attorney, authorizing a third party to provide safe custody for the computers and other property, financial information, and various books of K Company. On March 14, Tang A complained to the police that the property of the company was stolen. On April 26, Tang A sued for revocation of a company resolution in the court, requesting the revocation of the resolution regarding the appointment and removal of its chairman that K Company's board of directors made on March 11, 2016. Subsequently the court entered a judgment and revoked the resolution. K公司成立于2014年7月25日,沈某、张某、唐某均为K公司的股东,分别持有K公司30%、30%和40%的股权。法定代表人、董事长为唐某,沈某、张某为董事。2016年3月11日,K公司作出董事会决议,免除唐某董事长职务,任命沈某为董事长兼副总经理。同年3月13日,沈某、张某出具《授权书》委托第三方对K公司的电脑等财物及财务资料、公司各类账簿进行保全管理。3月14日,唐某报警称公司物品被盗。4月26日,唐某向法院提起公司决议撤销之诉,请求撤销K公司董事会于2016年3月11日作出的有关董事长任免的决议,后法院判决撤销该决议。
In 2018, Shen A sued in the court for the dissolution of K Company, in the belief that K Company had no actual business premises and could not operate normally, that it had not been able to convene a shareholders' meeting, and that directors differed considerably. The company could not be dissolved by the resolution of the shareholders' meeting, because the percentage of the shares he (she) held did not meet the requirements of the bylaws. Zhang A agreed to the claims of Shen A. K Company and Tang A argued that although K Company was currently unable to operate normally, there remained a prospect of profitability, that the theft sustained by K Company was still under criminal investigation, and that the reason why K Company was currently in a predicament was the intention of Shen A to become its chairman. Hence neither K Company nor Tang A agreed to dissolve K Company. 2018年,沈某起诉至法院请求解散K公司,其认为,K公司已无实际经营场所且已无法正常经营,也一直未能召开股东会,董事间分歧较大。且因其持股比例未达到章程的要求,无法通过股东会决议的方式解散公司。张某同意沈某的诉请。K公司、唐某则辩称,K公司目前虽无法正常经营,但尚存在盈利可能,K公司尚有被盗案件正处于刑事侦查中,且导致K公司目前困境的原因在于沈某意图成为董事长,故K公司、唐某均不同意解散K公司。
[Judgment] 【裁判结果】
In the opinion of the Intermediate Court, (1) Shen A held 30% shares of K Company and met the conditions for shareholding percentage that a shareholder should satisfy when suing for company dissolution. (2) The shareholders and directors of K Company were in serious conflict with each other, and the conflict was difficult to settle. (a) The shareholders and directors began disputing management power two years after the establishment of K Company in 2014. Shen A and Zhang A wanted to remove Tang A from the office of chairman by a resolution of the board of directors, and Tang A revoked the said resolution by litigation. (b) The shareholders differed materially about the custody of company assets. Shen A and Zhang A had the company's property preserved, and Tang A complained to the police that the company's property was stolen. (c) All parties admitted that K Company had no actual business premises and was unable to operate normally. Shen A and Zhang A had a negative attitude towards reversing the current operating status of K Company, and Tang A and K failed to propose an effective solution. The partnership foundation of the company had ceased to exist. (3) The power operation mechanism for the internal management of K Company had been hampered, no effective resolution could be made by the shareholders' meeting or the board of director for more than two years in a row, and its internal operation mechanism had failed, affecting the normal operation of K Company. 上海一中院认为,一、沈某持有K公司30%股权,符合股东提起公司解散诉讼时应满足的持股比例条件。二、K公司股东暨董事之间存在严重冲突,矛盾难以调和。其一,K公司于2014年成立后两年,股东暨董事之间已发生管理权的争夺。沈某及张某欲通过形成董事会决议的方式撤销唐某的董事长职务,唐某则通过诉讼撤销了上述董事会决议。其二,对于公司资产保管,股东之间亦存在重大分歧。沈某、张某将公司财产进行保管、封存,而唐某则报案称公司财产失窃。其三,各方当事人均认可,K公司已无实际经营场所且已无法正常经营。沈某、张某对于扭转K公司目前经营状况持消极态度,唐某、K公司亦未提出有效解决途径。K公司的人合性基础已经丧失。三,K公司内部管理的权力运行机制已发生障碍,已持续两年以上不能形成有效的股东会决议、董事会决议,其内部运行机制已经失效,影响了K公司的正常经营。
K Company had been unable to operate normally and had no actual business premises. The shareholders of K Company did not trust each other, depriving the partnership of the company. The internal operation mechanisms such as the shareholders' meeting and the board of directors malfunctioned, rending it impossible to make decisions on the company's operation and management. K Company was also unable to break its deadlock through its own relief mechanism. The continuation of the company's deadlock would cause further losses to shareholders' interests. Therefore, K Company could be determined to experience serious difficulty in its operation and management and met the conditions for judicial dissolution. The Intermediate Court entered a judgment and dissolved K Company. K公司已无法经营,且无实际经营场所。K公司股东之间互不信任,丧失公司人合性。股东会、董事会等内部运行机制失灵,无法就公司经营管理进行决策。K公司亦无法通过公司自身救济机制摆脱公司僵局。公司僵局的持续将会导致股东利益遭受更大的损失。因此,可以认定K公司的经营管理已经发生了严重困难,符合司法解散的条件。上海一中院判决解散K公司。
[Significance] 【典型意义】
Since the establishment of the PFTZ, its superior policy has attracted a large number of companies to be incorporated in the PFTZ and play an important role in the prosperity and development of the PFTZ. However, companies, especially closed companies, have a nature of partnership. Whether they can become active players that drive the continual development of the market economy depends largely on the coordination and cooperation between the company's shareholders and management. Article 182 of the Company Law and the Provisions of the Supreme People's Court on Some Issues about the Application of the Company Law of the People's Republic of China (II) established strict conditions for the judicial dissolution of a company. Their legislative purpose is to maintain the stable operation of companies and prevent judicial dissolution from being so abused as to interfere with the stability and free development of market participants. Nevertheless, when a company experiences any serious problem in its operations, the shareholders' meeting and other internal operating mechanisms of the company fail, and the company has already been without a partnership foundation, the law allows parties to resolve the company's predicament by judicial dissolution. When trying such a case, a court shall, by strictly considering facts and the law, prudentially enter a judgment respecting whether to grant the dissolution of a company, upon comparing the conditions provided for by the law with the facts one by one. This case played a model role in correctly applying judicial dissolution towards resolving the operational disputes of companies, safeguarding the interests of all parties including companies, shareholders and creditors, effectively solving the deadlock of companies, and other aspects. Properly applying the relevant provisions on the judicial dissolution of companies and achieving the benign replacement of market participants are helpful in creating a vibrant business environment in the PFTZ, promoting the sound and sustainable development of the economy in the PFTZ, and accelerating the process of construction of a law-based business environment. 自贸区成立以后,因其优越的政策吸引了大量公司在自贸区注册成立,对自贸区的繁荣发展起到了重要作用。但公司尤其是封闭公司具有人合性的特征,其能否成为带动市场经济不断发展前行的活跃主体,很大程度上取决于公司股东、管理层之间的协调配合。《公司法》第一百八十二条以及《公司法司法解释二》对公司司法解散设置了严格的条件,其立法本意即在于维护公司的稳定运营,避免滥用司法解散干预市场主体的稳定、自由发展。但是,在遇到公司经营发生严重问题,股东会等公司内部运行机制失灵,公司已经丧失人合性基础时,法律亦允许当事人运用司法解散的方式来解决公司困境。法院在审理此类案件时,应当通过严格的事实和法律衡量,在将法律规定的条件与事实情况进行逐一对比之后,审慎作出是否支持公司解散的判决。本案在正确适用司法解散解决公司运营纠纷,保障公司、股东以及债权人等各方主体的利益,有效化解公司僵局等方面起到了示范作用。妥善适用司法解散公司的相关规定,实现市场主体的良性更替,有利于构建充满活力的自贸区营商环境,也有助于促进自贸区经济的健康可持续发展,加快法治化营商环境的建设进程。
Case No. 2 案例二
X Company v. Ma A and P Company (Dispute over Liability for Damages to Company Interests) X公司诉马某、P公司损害公司利益责任纠纷案
[Basic Facts] 【基本案情】
On July 18, 2007, X Company and Ma A signed a Cooperation Agreement, agreeing that X Company set up a representative office in Iran and that Ma A was the general representative and manager of the representative office. However, Ma A was not a shareholder, director or supervisor of X Company. 2007年7月18日,X公司与马某签订一份《合作协议》,约定:X公司在伊朗设立代表处,马某为该代表处的总代表、经理。但马某并非X公司股东、董事、监事。
From September to November 2007, X Company accommodated S Company and Iran-based OEOC Company and facilitated them in signing an equipment sale contract. S Company should pay X Company a certain amount of commission by agreement. On January 28, 2008, X Company issued a Notice of Termination and Cancellation of Labor Contract to Ma A, and Ma A ceased to be the general representative of X Company's representative office in Iran. On April 5, the same year, the equipment sale contract between S Company and OEOC Company was canceled. On May 10, Ma A and nonparty Z Company signed an Agency Agreement, agreeing that in order to facilitate Z Company in receiving corresponding orders from Iran, Ma A was appointed as the agent of Z Company. On May 11, OEOC Company signed an equipment sale contract with Z Company. The layout, terms, type of equipment, quantity, price and other contents of the contract were basically the same as those of the contract between S Company and OEOC Company. On August 7, P Company was incorporated, and Ma A was its shareholder. Z Company signed a Supplemental Agreement with P Company and Ma A, stipulating that all the rights and obligations of Ma A under the Agency Agreement in May were transferred to P Company. Later, Z Company paid a total of 14.5 million yuan to P Company, and the approval documents on a part of the payment by Z Company stated, "Payment of commission on the OEOC Project." 2007年9月至11月,经X公司协调,促成S公司与伊朗OEOC公司签署设备销售合同。同时依照约定,S公司应支付X公司一定数额的佣金。2008年1月28日,X公司向马某发出《终止、解除劳动合同通知书》,马某不再担任X公司驻伊朗代表处的总代表。同年4月5日,S公司与伊朗OEOC公司的设备销售合同解除。5月10日,马某与案外人Z公司签订《代理协议书》,约定:为便于Z公司在伊朗获得相应订单,委托马某为Z公司代理。5月11日,伊朗OEOC公司与Z公司签订设备销售合同,合同的格式、条款设置及设备型号、数量、价格等内容与S公司和伊朗OEOC公司的合同基本相同。8月7日,P公司登记设立,股东为马某。Z公司与P公司、马某签订《补充协议书》,约定:5月《代理协议书》中,马某项下的全部权利义务转移至P公司。后Z公司共向P公司支付1,450万元,其中Z公司部分付款的审批单中注明“支付OEOC项目代理费用”。
In 2012, in the arbitration of a contract dispute between X Company and S Company, the arbitral committee ruled that S Company pay X Company commission of more than 1.3 million euro. In 2016, in a related case, the effective court judgment found Z company to have infringed the trade secret of X Company by the conduct of contracting Ma A, the then employee of X Company, and ordered X Company to pay a compensation of more than 20 million yuan. In 2017, X Company sued in the court, requesting an order that the revenue of Ma A and P Company, amounting to 14.5 million yuan, belong to X Company. According to X Company, the aforesaid sum of 14.5 million yuan received by P Company was income because Ma A breached his (her) obligation of loyalty during his (her) tenure at X Company, causing the equipment sale cooperation between S Company and OEOC Company to fail, facilitating the cooperation between OEOC Company and Z Company. Ma A and P Company argued that Ma A and X Company were in an equal cooperative relationship. Ma A was only the general representative of X Company in Iran, not a member of its senior management, and had no authority to manage X Company. Ma A received remunerations for his (her) services to Z Company reasonably and legally after the Cooperation Agreement had been canceled, and thus he (she) did not agree with the claims of X Company. 2012年,在X公司与S公司的合同纠纷仲裁案中,仲裁委员会裁定S公司向X公司支付130余万欧元的佣金。2016年,在关联案件中,法院生效判决认定Z公司存在利用与时任X公司雇员马某联络的行为,侵害了X公司的商业秘密,并判决赔偿X公司2千余万元。2017年,X公司诉至法院,请求判令马某、P公司所得收入1,450万元归X公司所有。X公司认为前述P公司收到的1,450万元是基于马某在任职X公司期间违反其忠诚义务,导致S公司与伊朗OEOC公司的设备销售合作失败另促成伊朗OEOC公司与Z公司达成合作所得。马某、P公司辩称,马某与X公司是平等的合作关系。马某仅是X公司驻伊朗代表处的总代表,不是X公司高管,对X公司没有管理职权。《合作协议》解除后,马某为Z公司提供劳务收取报酬,合理合法,故不同意X公司的诉讼请求。
[Judgment] 【裁判结果】
In the opinion of the court of first instance, (1) Ma A was not a member of the senior management of X Company. According to the Company Law or the company bylaws, Ma A held such a position as not to qualify him (her) as a member of the senior management of X Company. Moreover, according to the Cooperation Agreement, Ma A was only the head of a dispatched office of X Company. He neither held a position of senior management of X Company nor had exercised the authority of senior management of X Company. Hence Ma A was neither a member of the senior management of the company as set forth by the law and the company's bylaws nor a party subject to disgorgement under the law. (2) X Company claimed disgorgement unjustifiably. In the relevant case, enforcement had been conducted, and the whole payment had been effectively enforced. If X Company had exercised disgorgement with respect to the sum of 14.5 million yuan as it claimed, it would receive payments in large excess of the expected benefits from performance of the contract. The court of first instance dismissed the claims of X Company because of the foregoing. X Company was dissatisfied and appealed, taking the view that Ma A actually performed the powers as a manager, qualifying him (her) as a member of the senior management of the company. 一审法院认为,一、马某不属于X公司的高级管理人员。基于《公司法》或公司章程,马某的职务并非X公司高级管理人员。而且基于《合作协议》,马某只是X公司派出机构的负责人,不具有X公司高级管理人员的职位,也未行使过X公司高级管理人员的职权。故马某不属于法律和公司章程规定的公司高级管理人员,也不属于法律规定的归入权义务主体。二、X公司主张归入权不具有合理性。相关案件已经执行完毕,款项全部执行到位。若X公司主张对于1,450万元行使归入权,将会导致其获得远远超过因合同履行而获得的预期利益。故一审法院判决驳回X公司诉讼请求。X公司不服,认为马某实际履行了经理职权,具备公司高级管理人员的资格,故提起上诉。
In the view of the Intermediate Court, Ma A could not be defined as a member of the senior management of X Company under the law, and he (she) was not a person subject to the company's disgorgement either. (1) Ma A had no formal relationship of labor contract with X Company, the Notice of Termination and Cancellation of Labor Contract and the Proof of Cancellation of Labor Contract issued by X Company was not supported by basic facts, and they were used only to remove Ma A from the office of general representative and manager of the representative office in Iran. (2) According to the Cooperation Agreement, the remit of Ma A was explicitly limited to the responsibility for and execution of the work of the representative office in Iran, and he (she) was entitled to commissions on the benefits of projects and sales by agreement and had no authority as to the company's overall operation and management. To that end, Ma A was only an executive head of an overseas office and specific projects employed by X Company. (3) X Company should have necessary burden of proving whether Ma A actually exercised the authority of the senior management of X Company. No conduct of Ma A during his (her) tenure as proved by X Company, including his (her) participation in liaison, negotiation, agreement execution and other activities for the Iranian project, was outside the remit of Ma A as the general representative and manager of the representative office of X Company in Iran. Whether the Iranian project was the core business of the company was the internal assessment result for a certain period of operation of X Company and could not be used as the criterion to determine a head participating in the project as a member of the senior management of the company. Following from the foregoing, a judgment was entered to dismiss the appeal and uphold the original judgment. 上海一中院认为,马某依法不能被界定为X公司高级管理人员,亦非公司归入权的义务人。一、马某与X公司之间没有正式的劳动合同关系,X公司出具的《终止、解除劳动合同书》《解除劳动合同证明》均没有基础事实,仅用于解除马某驻伊朗代表处总代表、经理的职务。二、依据《合作协议》,马某的职权范围明确限定于负责、执行伊朗代表处的工作事务,同时依约收取项目的效益佣金和业务提成,对X公司的整体经营管理不享有任何职权,故马某只是作为X公司雇佣的一个驻外机构及特定项目的执行负责人。三、关于马某是否实际行使了X公司高级管理人员的职权,X公司应当承担必要的举证责任。就X公司举证的马某任职期间的所作所为,包括参与伊朗项目的联络、洽谈、签约等活动,均未超出马某作为X公司驻伊朗代表处总代表、经理的职责范围。伊朗项目是否为公司的核心业务,属于X公司内部的、某个经营期间的评估结果,不能以此作为判断参与项目的负责人即为公司高级管理人员的标准。故判决驳回上诉,维持原判。
[Significance] 【典型意义】
At present, China is actively implementing the Belt and Road Initiative, and a number of domestic companies, including those established in the PFTZ, are vigorously setting up representative offices overseas to better expand outbound investment and trade. In company-related commercial disputes, the capacity, authority and the like of employees with such offices often become one of issues in the case. According to Article 148 of the Company Law, if a director or any member of senior management breaches his or her obligation of fidelity to the company, his or her income resulting therefrom shall belong to the company. Therefore, disgorgement claimed by a company is allowed, subject to the capacity of the case-related employee as the director or a member of the senior management of the company. As specified in this case, it is not only an issue of its internal governance, but also involves the determination of legal liability to judge whether an employee is a member of the senior management of a company. In addition to a focus on the examination of the establishment of his or her position and the remit, it is necessary to comprehensively consider whether he or she actually exercises the authority of senior management, whether the specific matters overseen are the company's core business, whether he or she has a formal relationship of labor contract with the company, and other factors. This case provides adjudicative guidance for handling similar cases in the PTFZ and is helpful in warning enterprises to strengthen the management of senior employees and, on the basis of accurately understanding legal provisions, effectively take precautions against legal risks. 当前,我国积极共建“一带一路”,大量国内公司包括自贸区设立的公司正踊跃在海外设立代表处,以便更好地拓展对外投资和贸易。在与公司相关的商事纠纷案件中,此类办事机构工作人员的身份、权限等,往往成为案件的争议焦点之一。《公司法》第一百四十八条规定,董事、高级管理人员违反对公司的忠实义务的,其所得收入应当归公司所有。据此,涉案工作人员具有公司董事、高级管理人员的身份,是公司主张的归入权能够得到支持的前提。本案明确,判断工作人员是否为公司的高级管理人员并不仅仅是公司内部治理的问题,还涉及法律责任的确定,除应重点审查其职务的形成、职责的范围外,还需综合考量其是否实际行使了高级管理人员的职权、负责的具体事项是否为公司的核心业务以及其与公司之间有无正式的劳动合同关系等因素。本案为处理自贸区类似案件提供了裁判指引,有助于警示企业加强对高级员工的管理,在准确理解法律规定的基础上,做好法律风险预先防范。
Case No. 3 案例三
Hua A v. S Company (Dispute over Company Resolution) 华某诉S公司公司决议纠纷案
[Basic Facts] 【基本案情】
The shareholders' meeting of S Company consisted of six shareholders including A Company and Hua A. The registered capital of the company was 6,313,131 yuan. S Company convened the shareholders' meeting on March 1, 2018 and made a resolution: (1) A target-specific reduction of registered capital by 210,438 yuan out of the registered capital subscribed by A Company was approved, so that the total registered capital of the company fell to 6,102,693 yuan. After the reduction of the registered capital, the percentage of shares held by A Company decreased from 10% to 6.9%, and the percentage of shares held by any other shareholder increased. In particular, the percentage of shares held by Hua A increased from 24.47% to 25.32%. (2) S Company's return of investment of 5 million yuan to A Company was approved. (3) The amendment of the bylaws was approved, and the bylaws as amended were in Annex 1. (4) Xia A, executive director of S Company, was authorized to perform any conduct necessary for the reduction of registered capital on the account of S Company, including without limitation application for registration of debts and compliance with industrial and commercial procedures for modification as to reduction of registered capital. According to the results of voting on the resolution, all shareholders except Hua A gave their approval, and the consenting shareholders held 75.5% of all the shares. S公司的股东会由A公司以及华某等6名股东组成,公司注册资本为6,313,131元。S公司于2018年3月1日召开股东会并作出决议:一、同意对A公司认缴注册资本中的210,438元进行定向减资,公司总注册资本减少至6,102,693元。减资后A公司股权比例下降,从10%降至6.9%,其他股东持股比例均上升,其中,华某股权比例从24.47%上升至25.32%。二、同意S公司向A公司返还投资款500万元。三、同意修改章程,修改后的章程见附件一。四、授权S公司的执行董事夏某代表S公司履行一切为完成本次减资所必要的行为,包括但不限于办理债权申请登记、减少注册资本的工商变更手续等。决议的表决结果为除华某外其他股东均同意,同意股东持股比例占总股数75.5%。
In the opinion of Hua A, the target-specific reduction of registered capital by the company should have been unanimously approved by all shareholders, instead of shareholders holding more than two thirds of voting rights, sections (1), (3) and (4) of the case-related resolution covered the restructuring of the company's ownership, were without the unanimous approval of all shareholders, and contravened the basic principle of "one-share, one-vote" in the Company Law, and the resolution should be never formed. The practice that S Company returned capital surplus to a few shareholders was actually to distribute company assets to a few shareholders in advance in disguise without liquidation procedures, and the practice not only infringed the company's property, but also invaded the interests of other shareholders. As S Company operated at a loss, allowing shareholders to withdraw capital surplus would leave the interests of external creditors unprotected. Because of the foregoing, an action was filed in the court to request a confirmation that sections (1), (3) and (4) of the case-related resolution of the shareholders' meeting of A Company were not formed and that section (2) was void. S Company argued that the case-related resolution of the shareholders' meeting was legal and valid because it was in compliance with the provisions of Article 43 of the Company Law and the company's bylaws, and the procedures for the resolution was not defective. 华某认为,公司定向减资应当经全体股东一致同意,而非持有2/3以上表决权的股东同意,涉案决议第一、三、四项涉及到公司股权结构的重新调整,未经全体股东一致同意,违背了《公司法》“同股同权”的基本原则,应属决议不成立。而且S公司将资本公积金返还给个别股东的做法实际是未经清算程序变相提前向个别股东分配公司资产,不仅侵害了公司财产权,也损害了其他股东的利益。同时,S公司处于亏损状态,允许股东将资本公积金予以抽回将导致外部债权人利益无法得到保护。故诉至法院请求确认A公司涉案股东会决议第一、三、四项不成立,第二项无效。S公司辩称,涉案股东会决议符合《公司法》第四十三条的规定,同时也未违反公司章程的约定,决议作出的程序也不存在任何瑕疵,故决议合法有效。
[Judgment] 【裁判结果】
According to the court of first instance, the reduction of registered capital of a company often resulted in changes in ownership structure and adjustment of shareholders' interests. The Company Law specially regulated the method of voting by which the shareholders' meeting made a resolution on reduction of registered capital but did not state whether the reduction should be made in proportion to the shares held by shareholders. The case-related resolution of the shareholders' meeting covered matters respecting the reduction of registered capital of the company and was in compliance with the company's bylaws and the provisions of the Company Law on the requirements for more than two thirds of voting rights in approving a reduction of registered capital. According to the provisions of the Company Law, a resolution of the shareholders' meeting was void only if the content of the resolution contravened any law or administrative regulation. In the opinion of Hua A, the case-related resolution of the shareholders' meeting contravened the provisions of Article 168 of the Company Law: "The company's common reserves shall be used for making up losses, expanding the production and business scale or increasing the registered capital of the company." However, the provisions described the use of and restrictions on statutory common reserves in the internal operation and management of a company, but did not preclude the company from returning capital surplus converted from investment of premiums by shareholders to the original shareholders by the lawful procedures for resolution. Therefore, a judgment was entered to dismiss all the claims of Hua A. Hua A appealed against the first-instance judgment. 一审法院认为,公司减资往往伴随着股权结构的变动和股东利益的调整,《公司法》已就股东会作出减资决议的表决方式进行了特别规制,并未区分是否按照股东持股比例进行减资,涉案股东会决议内容为公司减资事项,符合公司章程以及《公司法》对于减资要求2/3以上表决权通过的规定。根据《公司法》的规定,股东会决议无效限定于决议内容违反法律、行政法规的情形。华某认为涉案股东会决议违反《公司法》第一百六十八条规定的“公司的公积金用于弥补公司的亏损、扩大公司生产经营或者转为增加公司资本”。但该规定针对的是法定公积金在公司内部经营管理中的用途和限制,并不排斥公司经合法决议程序将股东溢价投资所转成的资本公积金退还给原股东。故判决驳回华某全部诉请。华某不服一审判决,提起上诉。
In the view of the Intermediate Court, the "reduction of registered capital" in the Company Law should refer only to the reduction of registered capital of a company and did not cover the allocation of shares among shareholders after the reduction. Shares were the basis for shareholders to have interests in a company and be subject to obligations. A target-specific reduction of registered capital would directly change the allocation of shares at the time the company was established. If only shareholders holding more than two thirds of voting rights were required to adopt a resolution on a disproportionate reduction of registered capital, the ownership structure established by the promoters by unanimous resolution at the time of establishment of the company would be actually changed by the majority rule. It was also ascertained that S Company had lost heavily. The increase in the percentage of shares held by Hua A upon the target-specific of registered capital substantially raised the risk that Hua A externally assumed risk as a shareholder and harmed the interests of Hua A as a shareholder to a certain extent. Sections (1), (3) and (4) of the case-related resolution of the shareholders' meeting were "any other circumstances leading to a determination that the resolution has never been formed" in Article 5(5) 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). S Company was operating at a loss. If S Company had been allowed to return the investment of 5 million yuan to A Company, a significant reduction of the company's assets would result and cause damage to the property and credit base of the company and the interests of other shareholders and creditors of the company. In that regard, the claims of Hua A that section (2) of the resolution of the shareholders' meeting was void were justifiable by facts and under the law. Following from the foregoing, a judgment was entered to set aside the first-instance judgment and confirm that sections (1), (3) and (4) of the case-related resolution of the shareholders' meeting were not formed and that section (2) was void. 上海一中院认为,《公司法》中规定的“减少注册资本”应当仅仅指公司注册资本的减少,而并非涵盖减资后股权在各股东之间的分配。股权是股东享受公司权益、承担义务的基础,定向减资会直接突破公司设立时的股权分配情况,如只需经三分之二以上表决权的股东通过即可做出不同比减资决议,实际上是以多数决形式改变公司设立时经发起人一致决所形成的股权架构。同时,经查明S公司已出现严重亏损状况。在定向减资后,华某持股比例的增加,在实质上增加了华某作为股东对外所承担的风险,在一定程度上损害了华某的股东利益。涉案股东会决议第一、三、四项符合《公司法司法解释四》第五条第五项“导致决议不成立的其他情形”。S公司处于持续亏损状况,如果允许S公司向A公司返还500万元投资款,将导致公司的资产大规模减少,损害了公司的财产和信用基础,也损害了公司其他股东和公司债权人的利益。因此,华某主张涉案股东会决议的第二项无效具有事实和法律依据。故判决撤销一审判决,确认涉案股东会决议的第一、三、四项不成立,第二项无效。
[Significance] 【典型意义】
...... ......

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