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The supreme people's court on equity generation protocol rules of five judges
source : author : time:2015年5月17日

The provisions on some issues applicable < company law > (3) "affirmation of the legal effect of equity generation hold, entrust other generation of business model becomes more common, this period of the rule of law summarized 5 is the horizon of the supreme people's court on equity generation dispute the referee rules, for your reference.

In this guide:

1, nominal shareholders to creditors of the generation of shares to apply for enforcement, dormant shareholders citing it as the holder of the generation of the actual execution objection is put forward, to halt execution, the court shall not support.

2, about equity generation, both parties shall sign corresponding agreements to determine the relationship, thus no front the shareholder rights of shareholders.

3, as the actual investor request approval of the shareholders of enterprises with foreign investment shall be on the premise of legal investment behavior, otherwise, no support.

4, for between the parties entrusted purchase and generation of a relationship or borrowing no direct written evidence, the court will according to the principle of civil evidence advantage evidence comprehensive evidence to judge all aspects.

5, dual generation is the target company equity holding legal relationship, "dormant shareholders" requirements of dormant shareholders show, through its nominal shareholders and nominal shareholders agree, the court support.

Rules for a:

1, nominal shareholders to creditors of the generation of shares to apply for enforcement, dormant shareholders citing it as the holder of the generation of the actual execution objection is put forward, to halt execution, the court shall not support.

Case retrieval (1) : national food trading center Harbin and Harbin bank co., LTD., branch of science and technology such as execution objection to dispute cases - the supreme people's court (2013) and final word no. 111 civil judgment

The message: "company law" in paragraph 3 of article 33: "company name and the amount of shareholders shall be registered to the company registration authority; the registered items change, ought to deal with change to register. Have not been registered or the registration of change shall not be against a third party." On the basis of which, in accordance with the register of shareholders with external potency, dormant shareholders on the company's foreign relations do not have the legal status of public shareholders, its not citing its and show a shareholders agreement between against external creditors to show shareholders claim rights. Famous so when shareholders for its failure to repay debts and be implemented, its creditors according to the industrial and commercial registration of equity ownership, shall have the right to apply to the people's court for compulsory execution of the equity. Therefore, in this case, whether trading center for sanli futures company's actual investor, does not affect the branch of science and technology to achieve the request for sanli futures company to enforce claims. So the trading center of stop on grain and oil group and dragon grain company sanli futures companies equity held by enforcing request, not the facts and legal basis, we shall not be supported.

Case retrieval (2) chengdu guang cheng trading co., LTD confirm with flying group co., LTD. Fuzhou equity dispute case again, the supreme people's court "word no. 758 (2013) people civil verdict

Referee message: although the company wide sincere which amounts to "actual investor, its sign agreement with flying group the equity as guang cheng company, but the equity in over the group name, registered and approved by the China securities depository and clearing co., LTD confirm, over group, edge light company also make a public announcement to the society, with the public effect. Accordingly, internal relations, guang cheng company with over group should be based on both sides of the agreement between wide shing company for the stake holder; On foreign relations, namely to guang cheng and flew over from a person other than the group company, shall, in accordance with the content of the public, as the stake by the registered shareholders enjoy flying group. On July 9, 2008 court MinFa securities limited liability company to apply for over group bankruptcy and debt repayment, October 28, 2009, ruling declared bankruptcy over group. MinFa securities co., LTD. According to the registration and public announcement of the public credibility, there is reason to believe that over group hold shares in the edge light company has the right to the equity to realize its creditor's rights. If the lawsuit support guang cheng company confirming the request, inevitably damage over the interests of the group, other creditors. Therefore, a verdict, although wide recognition honestly between generations with flying group limited facts, but to guang cheng company claims not to support, is correct. As for guang cheng company how to realize its creditor's rights of investors in a actual problem, the first-instance judgment has told its shall be settled through bankruptcy filing claims.

Note: in hainan varley industrial investment co., LTD and qinlan new huitong industrial development co., LTD., equaling the dispute case again (in hainan province higher people's court (2012) Joan ZaiZhongZi no.3 civil judgment), the hainan provincial high court takes the opposite view, reason is: () have not been registered or the registration of change in the company law shall not be against a third party. Its purpose is to protect the transaction security the equity transfer of "company law" the 72th regulation, "property law" the 223th regulation, equity pledge, the right to dispose of the counterpart of trade in order to protect the equality between civil main body that the rights and interests of a third person. Sea issued a liquidation group is varley loan creditors of the company, not with varley company investment equity set up trading relationship with respect to its name, the investment equity is not its creditor's rights disputes between varley and effective legal instruments specified for delivery of specific content. Sea issued a liquidation group to the company law in paragraph 3 of article 33 of the third person, refers to any third party other than the parties, including shareholders, creditors, is wrong; Its about myself is accord with the law stipulated in article claims of third parties, without legal basis. Therefore, to support the new huitong company (actual investor) execution objection litigation request.

But integrated the two cases the Supreme Court, which tend to maintain the appearance of the commercial activities principles, that is not based on nominal shareholders equity dispose of creditors also belongs to the category of "third person" should be protected.

2, about equity generation, both parties shall sign corresponding agreements to determine the relationship, thus no front the shareholder rights of shareholders.

Case retrieval: shenyin wanguo securities co., LTD. V. macro of the Shanghai real estate co., LTD., property ownership dispute - in 2010 the supreme people's court gazette

The message: equity of affiliated or generation of a behavior, which is usually in the sense of legal person share, hold. Legal person share, hold the actual investor and front holders, both parties shall sign the corresponding protocol to determine the relationship, thus no front the shareholder rights of shareholders. For all party was originally a legal person share, the other is acquired through the paid transfer of legal person share ownership, the legal person share transfer agreement is signed by the two parties, in the agreement on the transfer of value as well as the transfer of ownership of the problem, do not belong to the generation hold equity or affiliated, can maintain the sale, by transfer of the ownership of the legal person share, even if the licensee shall not pay any consideration, licensor has also lost the dispute about the ownership of the legal person share, but only based on creditor's rights transfer agreement claims accordingly.

3, as the actual investor request approval of the shareholders of enterprises with foreign investment shall be on the premise of legal investment behavior, otherwise, no support.

Case retrieval: primus capital fund and hong yuan holdings group co., LTD., other contract dispute, the supreme people's court (2013) no. 20 people four final word civil judgment

The message: equity ownership and the investment trust relationship is the legal relations of the two levels, the former legal investment behavior and form, the latter because of the contract between the parties behavior formation, the above regulations of circ is only for what you did to foreign shareholder shareholding ratio limit, rather than to limit the entrust contract relationship between the parties. As a result, the actual investor cannot claim existing legal investment trust relation shareholder status, the trustee is not citing have shareholding limit the effectiveness of the negative investment trust agreement. In this case, primus (foreign) and hong yuan company entrusted investment and custody agreement, signed the agreement, including not only the parties on the terms of the investment trust, also includes of equity ownership and equity trusteeship agreement between the parties. According to the provisions of the parties, hong yuan company, the predecessor of the company is a generation of primus company hold equity rather than own a stake. Although all the agreement of the parties to real intention, but because of the equity ownership shall be determined according to investment behavior in accordance with the laws of the legal, not free agreed by the parties. So, despite the agreed by the parties to the relationship between the two parties is the relationship between equity generation, also cannot therefore decided that the relationship between the two sides belong to the relationship between equity generation, and shall be deemed department entrusted investment contract relationship between both sides.

4, for between the parties entrusted purchase and generation of a relationship or borrowing no direct written evidence, the court will according to the principle of civil evidence advantage evidence comprehensive evidence to judge all aspects.

Case retrieval: Xue Hui 玶 and living, jiangsu lu border neighboring market development co., LTD., jiangsu MingHeng real estate development co., LTD., the principal-agent contract dispute - the supreme people's court (2013) and final word no. 138 civil judgment

Referee message: although Xue Hui 玶 and living between lu did not sign a purchase and generation of a written contract, but Xue Hui 玶 land living remit payment to the fact that the objective existence. The nature of the cash, though raw land, claims for borrowing, but failed to provide any evidence to prove that. The first-instance judgment integrated all the case facts, based on the principles of advantage evidence that both sides between Xue Hui 玶 entrust o land purchase raw and generation of ownership relations, to fully, and when all things.

5, dual generation is the target company equity holding legal relationship, "dormant shareholders" requirements of dormant shareholders show, through its nominal shareholders and nominal shareholders agree, the court support.

Case retrieval: wang cheng with anhui fuyang hua spinning and the real estate development co., LTD., shareholders qualification dispute criminal civil judgment (2014) - the supreme people's court and the word no. 185

The message: in this case, and the company (target company) according to industrial and commercial registration of three shareholders of China spinning company, and the city and li-xin company. According to the agreement, China spinning company, and the city with the source far company established between equity generation of a relationship, the former is in the name of the target company shareholders; And in accordance with the relevant agreement, wang and zhang the development rights of natural person is involved in the project and company equity as the source of company also set up the equity generation of a relationship, the source is far from the company name of the investor. Although wang cheng and between the company and there is no direct investment relations, but in the first instance, spinning, and the city, and the company said that as long as zhang hui, wang cheng, such as the actual investors agree, it can be the remaining 43% stake in according to the requirement of the source company changes to source far company designated personnel; Li-xin company also not object to this. The first-instance judgment that the king become shareholders and the company, confirmed that it enjoys a 14.33% stake, and the company is not in violation of the provisions of company law to explain three of the third paragraph of article 24, the sentence shall be maintained.

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