The relevant legal provisions of company dissolution litigation

        

                                 Company law of the people's Republic2005Revision)

Article 183rd [shareholder requests the court to dissolve the company situation] company management difficulties, continued existence would cause major damage to the interests of shareholders, cannot be solved by any other means, holding company shareholder vote more than ten percent of the shareholders, may request the people's court for the dissolution of the company.

 

                   Provisions of the Supreme People's Court on certain issues in the application of the "PRC Company Law"(Two)

                                                   [] the implementation date2008.05.19

 

Article 1 alone or combined holding company shareholder vote ten percent shareholders, the following reasons filed a lawsuit to dissolve the company, and in accordance with the companies act 183rd provisions, the people's court shall accept the case:

(a) the company continued for more than two years cannot hold the meeting of shareholders or the general meeting of shareholders, the company management difficulties;

(two) can't meet the prescribed legal or the company's articles of association proportional voting, continued for more than two years are not able to make effective the shareholders' meeting or the resolution of the general meeting of shareholders, the company management difficulties;

(three) the board of directors of the company long-term conflict, and not through the shareholders or the general meeting of shareholders, the company management difficulties;

(four) the occurrence of other serious difficulties in the operation and management, the company continues to exist will cause major damage to the interests of shareholders.

Shareholders' right to know, the request right of profit distribution and other damage to the interests of the company, or loss, property is insufficient to pay off all the debts, and the company is revoked the business license of enterprise legal person not liquidated grounds, filed a lawsuit to dissolve the company, the people's court shall not accept the.

 

Article second shareholders filed a lawsuit to dissolve the company, also apply to the people's court for liquidation of the company liquidation, the people's court shall not accept the application for. The people's court may inform the plaintiff, in the people's court to dissolve the company, according to the provisions of the company law article 184th and the provisions of article seventh, organize liquidation or separately apply to the people's court for the liquidation of the company.

 

Article third shareholders filed a lawsuit to dissolve the company, apply to the people's court for property preservation or preservation of the evidence, the shareholders provide security and does not affect the normal operation of the company, the people's court may grant the preservation.

 

Article fourth shareholders filed a lawsuit to dissolve the company shall take the company as a defendant.

The plaintiff to the defendant in conjunction with other shareholders as a lawsuit, the people's court shall notify the plaintiff to change the other shareholders of third people; the plaintiff insists no change, the people's court shall reject the plaintiff to sue other shareholders.

The plaintiff filed a lawsuit to dissolve the company shall notify other shareholders, or the people's court shall notify them to take part in the proceedings. If any other shareholders or interested parties apply for CO plaintiff or the third party identity to participate in the proceedings, the people's court shall permit.

 

The Fifth People's court hears a company dissolution case, it shall give priority to mediation. The parties agreed to by the company or the shareholders to acquire shares or by way of capital reduction, the company continues to exist, and not in violation of laws, administrative regulations of the mandatory provisions, the people's court shall support. If the parties can not reach consensus to continue the company, the people's court shall.

The people's court mediation company acquired the shares of the plaintiff, the company shall within six months will transfer or cancellation of the said shares since the date of entry into force of the mediation book. Before the transfer or cancellation of the said shares, the plaintiff shall not against the creditors of the company on the grounds that the company's purchase of its shares.

 

The Sixth People's Court on a company dissolution litigation judgment, legally binding to all shareholders of the company.

The people's court rejected a company dissolution lawsuit, filed a lawsuit or other shareholders and shareholders based on the same facts and reasons filed a lawsuit to dissolve the company, the people's court shall not accept the.

 

       The Supreme People's court vice president Xi Xiaoming's speech at the National Working Conference on Civil and commercial trial - and give full play to the civil and commercial trial functions to provide legal guarantee for the construction of a socialist harmonious society

                                                                   ( 2007Years5Month30Day)

(three) on the trial involving the company disputes problem

Second, to respect the group company, the protection of commercial subject stability. In dealing with the issue of company deadlock, to correctly grasp the article 183rd of the company law In the shareholder request the legislative purpose for dissolution of the company regulations. Shareholder lawsuits the causes of company dissolution must be serious difficulties in the management of the company, its continued existence may cause major damage to the interests of shareholders. Serious difficulties management here understood as lack of funds, serious losses and operating difficulties, and should understand the serious internal disturbance management, is the main failure mechanism of shareholders' meeting, no decision is the management of the company: the shareholders damage not referring to individual shareholder interests, but due to company collapsed companies cannot operation caused by investor overall interests. In the trial process should pay attention to the full use of mediation means, first of all Seek litigant reconciliation, reconciliation between the parties can not, as far as possible to facilitate separation of the parties through the equity transfer, reduction of registered capital to realize the disputes of shareholders, to keep the company as the commercial subject Continued, safeguarding the overall interest company, shareholders and company creditors and other related subjects. Only in the end means and all the possible ways still can not solve the contradictory situation, can take any mandatory dissolution method.

 

Fourth, correctly handle the relationship between protection of the capital majority rule and minority rights. To protect the interests of minority shareholders has been the focus of corporate litigation. On the one hand, we should realize that, the capital majority rule is the company law A basic principle, is the fundamental institution to maintain normal operation of corporate governance are indispensable, should fully implement the obtained in the case of the trial. However, the current corporate litigation also reflects the existence of a large number of holding shares To control the position of the company of the East, the abuse of the capital majority rule violations of minority shareholders' rights phenomenon. Therefore, in the case of the trial, should pay attention to in the capital majority between principles and protecting the minority shareholders to seek appropriate Benefit balance, and protection of the capital majority rule compliance and minority shareholders rights. In judicial practice, should pay attention to distinguish the type of shareholder's right, the right choice of protection method. For shareholders because of its inherent, non shareholders Body agreed not to be deprived of the right of controlling shareholders' expropriation, subjected to request relief, should be supported: belonging to the majority capital punishment range of shareholder's right, to respect the will of majority shareholders: the capital majority rule is The range of shareholder's right, but by the controlling shareholders abuse their rights to be violated, in accordance with the provisions of the company law, article twentieth of the prohibition of abuse of right, protect the legitimate rights and interests of minority shareholders.

 

 

               Circular of the Shanghai Municipal Higher People's Court on some issues concerning the company "dispute" the answer

                                                                     (Shanghai high Famin two[2006]8No.)

Five, how the new revised Company Law 183rd stipulation "holding company shareholder vote more than ten percent of the shareholders" understanding of the problem

According to the company law revised in the 183rd The provisions of the shareholders, to request the court to dissolve the company litigation, required to be filed by "holding company shareholder vote more than ten percent of the shareholders". In this regard, filed a lawsuit to dissolve the company the plaintiff should be understood as can be held Division ten percent of all shareholders' voting rights(Include this number)A single shareholder, also can be together hold ten percent or more of the voting rights of all shareholders of company(Include this number)A plurality of shareholders.

Six, to have entertained the shareholders of a company dissolution case should be how to charge the fees for accepting the case problems

In view of shareholders in a company dissolution case, which belongs to the property dispute case, before the supreme court fees for such cases to make specific provisions, the court should be in accordance with the dissolution of the registered capital of the company the amount collected, the fees for accepting the case.

Seven, the court to meet the conditions of admissibility of the case of the dissolution of the company shareholders, the text should be how to describe the problem

To meet the conditions of admissibility of the case of the dissolution of the company shareholders, the court should take the form of judgment whether or not to approve the dissolution of the company's decision making. As support for the shareholders of company dissolution, the dispositif stated as "to * * * * company dissolution". If not for the support of shareholders to dissolve the company, main judgment as "rejected the plaintiff requests the dissolution of * * * * * * company litigation request".

Eight, shareholders in the filed a lawsuit to dissolve the company at the same time requirements for the liquidation of the company, should be how to deal with the problem

According to the company law revised in the 184th The provisions, the court after the dissolution of the company, should be related to the liquidation obligor to form a liquidation group, for the liquidation of the company. Shareholders do not have the right to request the court to liquidate the company. Therefore, the shareholders request the court to the company For the liquidation of the appeal, court shall interpretation of the parties, by the parties to withdraw the appeal; if the party insisted the liquidation, the court rejected the request of the parties about the liquidation shall be.

Nine, the court rejected the request for dissolution of the company's shareholders for shareholders, the re filed a lawsuit to dissolve the company should limit the extent of the problem

The court heard that the dissolution of the company, shareholders Sue does not conform to the law, rejected the shareholders to request. After the judgment comes into effect if no new facts, again with the same reason shareholders filed a lawsuit to dissolve the company, the court shall not accept the.

 

 

                     Shandong Province Higher People's Court on Several Issues concerning the trial of the company disputes (for Trial Implementation)

                   (2006Years12Month26The provincial court trial committee of the68Meeting to discuss the lugao method[2007]3Issue)

   Six, judicial dissolution of the company disputes

　　87In accordance with the company law, shareholders "" 183rd stipulation request for dissolution of the company, byCompany, the people's court at the domicileHave jurisdiction over.

   88The dissolution of the company, shareholders, should be based on the company as a defendant, other shareholders of the company for third people.

   89On behalf of the company, more than ten percent of the voting rights of shareholders, may request the people's court for the dissolution of the company. The right of shareholders is not affected by the capital contribution flaw.

In the lawsuit, the plaintiff qualification of shareholder voting rights loss or actual have amounted to less than ten percent, the people's court shall reject it.

 

   90The provisions of the articles of association, company shareholders shall not request for dissolution of the company, or make a "company law" stipulates that the 183rd more stringent restrictions on dissolution conditions, the provision is invalid.

   91, one of the following circumstances, the people's court may identify the "company management has serious difficulties in company law" stipulates that the 183rd "":

(1Company) major difficulties encountered in the course of business, continue to operate will cause irreparable losses of the company;

(2) serious differences between the shareholders, the long-term can not form an effective resolution;

(3The company has other) cannot survive reason.

 

　　92The review by the people's court that, in line with the company dissolution conditions, shall make a judgment for dissolution of the company. Text of the judgment is expressed as:XXThe company shall come into force on the date of this judgment, dissolution.

　　93The people's court shall not, in any company dissolution and liquidation group instruction and organization. If the parties apply for instruction a liquidation committee in accordance with this opinion, ninety-fifth, ninety-eight, ninety-nine regulations.

　　94The people's courts, the judicial dissolution of the company when the case, should be paid attention to in mediation work, encourage the parties to reach a compromise.

 

     The Shaanxi Provincial Higher People's Court on the "Shaanxi Province Higher People's court two people court about the company disputes, corporate restructuring, the disposal of bad assets and penal and civil and commercial treatment of difficult issues opinions" notice

                                                             [] the implementation date2007.12.06

Four, dissolution and liquidation of company

The company dissolution into desired dissolution, administrative dissolution and judicial dissolution of three types: 181st, paragraph (a) to (three) provision is desirable dissolution case, part (four) is the administrative dissolution case, part (five) is a decision to dissolve the situation. Once a company is dissolved, does not mean that the corporate personality terminate immediately, it led directly to start business right capacity loss and liquidation of a company, is the leading cause of the corporate personality destroyed.

 

According to the company law of the first paragraph of article 181st (five) the provisions of item, company dissolution litigation is generally limited to article 183rd of the company law provisions. A company dissolution case review case, in addition to review compliance with the provisions of the Civil Procedure Law Article 108th, because of the special action, but also a review of compliance with the companies act 183rd stipulates conditions. In judicial practice, there are often company shareholder resolution will be the dissolution of the company or the company business license shall be revoked by the administrative organ, because the company or shareholder not organize relative liquidation, a shareholder to the people's court The dissolution of the company. The resolution of the shareholders' meeting is dissolved or the company is revoked the business license is the dissolution of company, once a company is dissolved or revoked the business license of the resolution, it means that the company has been dissolved, the company only exist After the dissolution of liquidation. The court ordered the dissolution of the company to file for the genus, repeated dissolution of the company, also lacks the corresponding action, the prosecution should be rejected according to law.

 

The trial court case dissolved in company should pay attention to the following questions:

First, accurately grasp the company dissolution conditions. The people's court shall apply the new company law article 183rd decision compulsory dissolution, should focus on the following three aspects: (review1Company deadlock or board), the actual controller oppression does exist. Mainly refers to the company management difficulties and come to a deadlock, shareholder to break this impasse incapable of action, corporate deadlock continued existence would make the shareholder and the company suffered irreparable loss; or the board of directors of the company, the actual controller is or will to act illegally, pressing method, the property of the company Management or punishment was impolitic, endanger company as case. (2Proceedings of the shareholders) exhausted other means of relief, to resolve the company deadlock by other means can not. Other means of relief should be here mainly refers to the internal relief means, that the plaintiff should use law gives shareholders rights, exhaustion of internal self relief, still can not resolve the deadlock or oppressed situation, can choose lawsuit means. (3) the plaintiff should be holding company shareholder vote10%More shareholders. Can be a shareholder, can also be a few shareholders together holding10%To prosecute, as of the date.

Second, the defendant qualification. Company regulations The mention of company dissolution litigation plaintiff qualification, but did not make provision for the defendant qualification of company dissolution lawsuit. In judicial practice, the courts practice is also different: some in the company as a defendant, and some to the other shareholders As a defendant, and the company as a defendant, the shareholders as a joint defendant or the third party. Company dissolution litigation is related to the organization of the company in relation to the lawsuit, the company can continue to survive, so the company should as such suits Defendant. As for whether the other shareholders of the company shall be to participate in the litigation problem, because the company dissolution litigation mainly relates to the plaintiff shareholder and relative Fang Gudong (such as the controlling shareholder or shareholders of a conflict between the tort), relative shareholders should generally be made To participate in the litigation as the defendant; as for the other shareholders, according to the needs of trial for third people.

 

Third, the mediation is necessary procedure. The dissolution of the company often involves company and shareholders, between shareholders, company and trading company and employees third people, so the balance of interests, in order to resolve the dispute between the parties, as Possible to avoid the adverse effects caused by the dissolution of the company, the people's court in litigation mediation is the necessary procedure should be set up, the spirit of non dissolution principle measures first, actively looking for effective alternatives to compulsory disbandment of company. As far as possible Play the shareholder exit mechanism, let "shareholder discrete" rather than "dissolution", to grace a shareholder of a transfer of shares at a reasonable price to the other party; or allow the objection to the shareholders request the other party to repurchase shares, in order to achieve Save the company's objective.

 

Fourth, the people's court shall be decided upon dissolution of the company liquidation problem. The court thinks, the reality of corporate deadlock and shareholder oppression based on the judgment, the court to dissolve the company at the same time, we should also give a ruling on the liquidation of company, reasonable liquidation of lead firms, in order to thoroughly solve the dispute. In fact, according to the provisions of article 181st of the company law of the people's court according to law, make a company dissolution judgment, it is only the dissolution of the company's reasons, the equivalent of 181st company law provisions of the revocation of the business license, ordered to close down or cancel the other four causes for dissolution. According to the company law 184th stipulation, the company shall set up a liquidation group within fifteen days after the cause for dissolution occurs, no liquidation group is formed within the time limit, the creditor may apply to the people's court to designate relevant persons to form a liquidation group. So, the judgment upon dissolution of the company, whether the company is capable of self liquidation is inconclusive, the people's court verdict should not be compulsory liquidation of a company.

 

Fifth, the parties also sued the dissolution and Clearing Corp, the people's court should accept the problem. The parties also sued the dissolution and the Clearing Corp, the people's court in the case should be given necessary interpretation, inform the parties shall, according to article 181st of the company law, article 183rd and article 184th The provisions of the actual situation and the company's choice of prosecution, dissolution of the company or sue Clearing Corp. The parties to be argued, the people's court shall not accept the liquidation petition. Has accepted the company dissolution, liquidation dispute case One, the people's court shall hear the company dissolution cases, should be rejected the prosecution of the clearing request. At the same time, shall inform the parties if the people's court to dissolve the company, the parties according to the company law the 184th regulation to the liquidation, the liquidation cannot request the people's court for the liquidation of the company can be. Article 184th of the company law only stipulates, the company can not own the company liquidation, a creditor has the right to request the people's court for compulsory liquidation. We think, company liquidation cannot, will not only damage the interests of the creditors of the company, will also damage the interests of shareholders, so shareholders in the company shall not self liquidation, apply to the people's court for compulsory liquidation rights.

 

 

         The Supreme People's court guiding cases8Number: Lin Fangqing v. Changshou City Kailai Industrial Co. Ltd., Dai Xiaoming company dissolution case

                       ( Discuss the judicial committee of the Supreme People's court 2012Years4Month9Day release)

Each point

Article 183rd of the company law ", there are serious difficulties in the operation" as one of the shareholders lodge a company dissolution suit conditions. The judgment of "business management is serious difficulties", a comprehensive analysis of the running status of the organization from the company. Although the company is profitable, but its shareholders will be the long-term failure mechanism, the internal management with severe disabilities, has come to a deadlock state, can be identified as the company management difficulties. In accordance with the provisions of the company law and other related judicial interpretation, the people's court may adjudicate according to law the dissolution of a company.

The results

   Jiangsu province Suzhou City Intermediate People's court2009Years12Month8In order to2006.Su min two at the beginning of the word no.0277Civil judgment, Lin Fangqing rejected the litigation request. After the verdict, Lin Fangqing appeal. Jiangsu Provincial Higher People's court2010Years10Month19To (2010The Soviet Union with the word no.)0043Civil judgment, to withdraw the first instance judgment, the judgment shall be amended according to the dissolution of Kailai company.

The reason of judgment

    The court thinks: first, the management of Kailai company has serious difficulties. According to the provisions of the company law 183rd and the "Supreme People's Court on certain issues concerning the application of the people's Republic of China Company Law '' (two) "(referred to as the" company law "(two)) the provisions of Article 1, judge whether management company serious difficulties, should be from the company's shareholders, the board of directors or executive directors and the board of supervisors or board of supervisors of the present running status of the comprehensive analysis. "Serious difficulties" of corporate management focus is corporate management have serious internal obstacles, such as the shareholders' meeting mechanism failure, unable to make decision on the management of the company, should not one-sided Understanding, for lack of company funds serious losses and operating difficulties. In this case, only Dai Xiaoming and Lin Fangqing Kailai, two shareholders, two people each accounted for50%Stock, Kailai the company's articles of association "the resolution of the shareholders meeting shall be subject to generation Table 1/2 or more of the voting rights of the shareholders through ", and the parties agree that" more than 1/2 "does not include the number of. Therefore, as long as the two shareholders opinion differences, do not fit, is unable to form the effective surface Certainly, obviously affect the company's operations. Kailai company has been going4Years without convening a meeting of the shareholders, unable to form an effective resolution of the shareholders' meeting, the management company also cannot pass a resolution of the shareholders' meeting of shareholders would have failed, mechanism. Executive director Dai Xiaoming as the two shareholders of mutual contradiction, the management company, has been unable to implement the resolutions of the board of shareholders. Lin Fangqing as the supervisor of the company can not be normal exercise supervisory authority, can not play a supervisory role. Due to the internal mechanism of Kailai company has not run properly, unable to make decisions on the company's business, even if not in a loss situation, also cannot change the management of the company has serious difficulties in fact.

 

    Secondly, failure due to the long mechanism of Kailai company's internal operations, Lin Fangqing's shareholders, supervisors can not exercise the right in the state, it can not achieve the purpose of the investment company Kailai, major damage to the interests, and Kailai Company deadlock by other means long-term inextricability. "Company law" article fifth (two) defined "the parties cannot reach consensus to continue the company, the people's court shall". In this case, Lin Fangqing Bring a lawsuit before the dissolution of the company, has been through other channels to resolve the contradiction between Dai Xiaoming, clothing City Committee has organized parties to mediation, but the two sides still cannot reach an agreement. The court of second instance is also based on the careful consideration of judicial compulsory disbandment of company, actively carry out mediation, but were not successful.

    In addition, Lin Fangqing holds the Kailai company50%The shares, also in line with the company law regarding the lawsuit to dissolve the company shareholders holding company10%The above shares conditions.

    To sum up, Kailai has been in accordance with the company law and the "company law" (two) the provisions of the shareholders lodge a company dissolution suit conditions. The court of second instance from the full protection of the legitimate rights and interests of shareholders, reasonable norms of corporate governance structure, promote the healthy and orderly development of market economy point of view, in accordance with the law to make the decision.