Securities company as the stock financing speculation caused the stock infringement dispute appeal the

  • Created:
  • / Author: Aaron Lewis
     Case synopsis:
   In 1993, Wang Mou borrowed qiumou ID in a securities company business department to open the account of the shareholders, shareholder account by Wang actual control, by Wang stock. In 1993, Wang and certain Securities Sales Department signed a financing agreement, Wang Mou to business loans and securities company 300000 yuan. As a result of the stock market, the shareholders account on the stock market value of less than 100000 yuan, according to the agreement, a securities business department to freeze the shareholders account, and forced open, will sell stock income transfer. Qiu to the court a securities company business department stock property infringement, spread loss judgment request certain stock company qiumou stock compensation. Wang by the actual controller as the case third. The court of first instance to Qiu is the shareholder account of nominal shareholders, qiumou did not the actual investment, no income, Wang Mou is the actual controller of the shareholders account, the verdict rejected qiumou litigation request. Qiumou appeal, the second instance court upheld the original verdict.
The word agent
The presiding judge, judge:
"According to the relevant provisions of the civil procedure law" and "law", we accept this case was commissioned by the appellant a certain securities limited liability company, a securities business department, and was appointed by the Guangdong Guoxin law firm, as in the case of the appellee a legal representative. After the court of the investigation, according to the facts and the law make the following agents:
One, the appellant does not enjoy the shareholders codeThe stock account of the legitimate rights and interests, the advocate the appellee shall bear tort liability no factual and legal basis, the court of first instance for ascertaining the facts and the applicable law is correct, should be maintained in accordance with the law.
In the case of the appellant to stock property infringement sued appellant requests, premise the appellee shall bear tort liability is the legal interests.However, after several court investigation and evidence materials show that in accordance with the law, the shareholders codeAlthough the stock account is opened on behalf of the appeal of people, but the actual controller is not the stock account, do not enjoy the stock account of the legitimate rights and interests, and the reasons are as follows:
1According to the record, the contents, the appellant confirmed the stock account of third people to borrow ID run, has nothing to do with the appellant, is third people in the operation, the appellant did not put the money, not the burden of financing.(see sound recording article1-2Page)The person recording data is illegally obtained, reason not established. The recording data are not isolated evidence, Shenzhen City Intermediate People's Court ( French people a deep) with the word no.   Judgment and interrogation record evidence to corroborate, form a chain of evidence to prove the facts mentioned above. The appellant failed to prove the appellee making recordings are stress, the appellant cases of fraud, but the appellee truthfully to the appellant statement third RMB30Million yuan into account the fact that the appellant, audio content and the appellant trial court statement. Therefore, the recording data is valid evidence.
2, Shenzhen City Intermediate People's Court ( French people a deep) with the word no.    Judgment has been in force, the judgment also identified third people confirmed the appellant the stock account by its actual operation control facts. Third people in the statement and the appellant case in the recording data representations consistent.(see the Shenzhen City Intermediate People's Court ( French people a deep) with the word no.   Judgment article2The second line from the bottom)
3, 1993Year third to the respondent a loan of RMB30Million yuan to the stock account, and by third confirmed receipt. According to the appellant court statement, the appellant unaware, visible, third people actually control the stock account and stock trading.(see the Shenzhen City Intermediate People's Court ( French people a deep) with the word no.   Judgment article2Page)
4The appellant in the interrogation record, in agreement with the third statements "not on the stock account operating profit, profit and loss account now is not clear, the appellee remitted to the account of the renminbi30Million yuan. He also was not clear ", also shows that the Appellant was not involved in the case of all stock account.(see the interrogation record2007Years11Month5DayArticle2Page)
5The appeal person shareholders, code is running, without identity cards to third people for, the statement and recording data contradict the content. The appellant also said the money stock account is the part of the appellant, not investment, but the appellant did not provide the funds to the stock account evidence. In fact, the recording data and interview record, evidence suggests that the Appellant was not related to the stock investment funds account, not the burden of financing.
6Shareholders, code is a kind of identity of nominal shareholders were confirmed, and the rights and interests of securities owners is not equal, the shareholder registration code only stock ownership in the form of elements, not as essential elements of the owners of the rights and interests of investors in securities. Therefore, shareholders code shareholders can not of course against the actual investor enjoys the rights and interests of securities, other people can not resist the. In civil litigation, shareholder code can only be recognized as corroborative evidence of securities rights owner, its effectiveness to be determined, must be combined with other relevant evidence to determine the. Therefore, the appellant based only on shareholders code to appellee claim request no legal basis, the court rejected the claim is correct.
To sum up, the appellant to the stock account has no real control right, and not the actual investment and benefit, the stock account just above the prosecutor opened on behalf of the people, do not enjoy the legitimate rights and interests of the stock account, the appellant to the stock account without punishment, domination, and disposition right is a basic right, so the actual ownership, all the appellant is not involved in the stock account, which claims that the appellee shall bear tort liability no factual and legal basis.
 A relationship between two people and third people, the appeal is not established, the lack of evidence, the investment behavior of the third people do not enjoy the interest of litigation.
The appellant stated in the pleadings involved stock account of the stock trading operations are the appellant to entrust the third people for, the responsibility for all the third people operating in the stock account trading behavior, this proposition does not hold.As mentioned before, from the appellant court statement, recording data show that the Appellant was not the actual control of the stock account, not the actual investment and benefit,The stock account of third people to appeal to borrow ID run, no substantial association with the appellant. The appellant in the appeal of expression and the statement contradicts, in an attempt to confuse the legal relationship, to the identity of the client to obtain the stock account interestViolation of the principle of good faith. Moreover, the appeal person the third person to the existence of a relationship, but has not provided the authorization, authorization such as evidence, a statement with only third people as the trustee from the book cannot prove its acceptance of the appeal of the sale of shares, the status of third people not to appear in court statement, the appellee real on the statement will not be accepted. The appellant has called for third people to appellee financing loans30Million yuan and transferred to the stock account here, as the trustee of the matters entrusted, significant changes to be indifferent to apparently perverse.
According to the provisions of the civil law of our country, the agent can be divided into direct and indirect proxy agent. In this case, third people (the appellant claims of fiduciary agent) above people (the appellant claimed by agent I) nominal stock investment, obviously does not belong to the indirect agency. At the same time, more than third people v. name for securities investment behavior due to the appellant fails to prove the third people to obtain legal authorization of the appellant or to obtain the ratification of the appellant, the appellant and the third human of direct agent relationship also was not.
To sum up, the trust relationship between the appellant and the third person is not established, the lack of evidence, the appellant cannot enjoy the case involving the stock property interests of the litigation.
Three, the case of disputes is not tort law, but the financing agreement is invalid contract legal relationship. The appeal of the illegal interests appeal stocks that are not protected by the law, the court shall be dismissed.
The facts of the case is under the name of the above actual control third of the stock account, third person and the respondent signed a financing agreement, according to the agreement, third to the appellee RMB30Million yuan and transferred to the stock account. Since then, third people actually control the stock account and stock trading. Because third people did not timely repayment, the appellee according to the agreement will be involved in the stock account closed. Therefore, this case is the financing agreement and contract disputes, not tort law,The appellee shall bear tort liability no factual and legal basis. At the same time, the ownership of the property for certain legal facts and produce, the case involved the financing agreement of transfer of ownership contract, dividend as the contract the legal fruits, ownership shares fruits should be delivered from the subject matter, transfer. But in this case the lawsuit financing agreement is invalid due to violation of the state provisions, transfer of stock ownership is not the fruits. The appellant and the third party's interests in securities is illegal interest, your house shall be dismissed.
Four, the appellant trial changed during the retrial litigation request has exceeded the time limit for adducing evidence, the claim does not conform to the lawWe should reject the appeal, the appeal.The reasons are as follows:
1,The appellant trial changed during the retrial litigation request has exceeded the time limit for adducing evidence, and the changes after litigation request made substantial changes, in violation of the "The Supreme People's court "several regulations about the civil action evidence provided in Clause thirty-fourth, shall not be supported.
2Second, the appellant requests by the appellant rights or bonus compensation for losses, the request should not support. Because if the stock account of stock can realize the allotment is not inevitable, is accidental, respondent implementation of liquidation according to the agreement, the stock account is not the actual rights or bonus, the appellant did not provide valid evidence to prove the actual loss of rights or bonus in the lawsuit, the appellant request compensation rights or bonus loss and the appellee's closing act without legal interest, therefore the request should not support.
3In this case, the appellant before and after the change of the claims are due to lack of legal behavior made the antecedents of the case involved equity, its fruits is illegal interest without the legitimacy foundation of the protection should not. The appellant and the third people suspected of malicious damage the appellee's interests, and the respondent is the state-owned enterprises, the act of state property loss, the appellee reserve shall be investigated for legal responsibility the appellant and the third human rights.
In this case, the appellant does not enjoy the stock rights, and the appellant advocate is illegal interest, not protected by law, a trial of clear facts, irrefutable evidence fully, correctly applies the law, legal proceedings, request the court rejected the appeal all the appeal request to maintain the first instance judgment.
          Guangdong Hui law firm
          Chen Yanmei lawyer
           Liu Haitao lawyer
             Years Month Day