Look at the Supreme People's court from a case

"Company law judicial interpretation (two)" in the relevant provisions of the applicable company dissolution

In May 12, 2008, the Supreme People's Court issued "Regulations on the application of 'problems of company law of the people's Republic' s (two)" (hereinafter referred to as the "company law judicial interpretation (two)"), and implemented in May 19th of the same year. "Company law judicial interpretation (two)" is the basis of drafting in early 2001 "on the trial involving corporate dissolution cases the provisions of a number of issues" on the specific provisions, combined with the "company law" article 183rd, 184, specific provisions for the dissolution and liquidation of company system of applicable law.

Long term since, on the one hand, our theory and Practice for the research and Discussion on the dissolution and liquidation of companies, market exit mechanism is relatively small, theoretical support is weak; on the other hand, in judicial practice, due to the understanding of corporate dissolution and termination of confusion, leading to many companies in the dissolution after liquidation, not through the judicial process in a timely manner, and even many companies intentionally by the dissolution of the name of evasion of debts, serious damage to the relevant person's legitimate rights and interests. And the "company law judicial interpretation (two)" promulgated, respectively in a company dissolution case acceptance and party a company dissolution suit and a company liquidation case of separation, a company dissolution case of preservation and mediation, lawsuit to dissolve the company, the validity of the judgment of cases of compulsory liquidation, the liquidation group shall compulsory liquidation, dissolution of the composition and change of the liquidation, liquidation of the company notice of claims and supplementary declaration, compulsory liquidation agreement under the mechanism, the company in liquidation, liquidation of the obligor of civil litigation and civil liability, the members of the liquidation group lawsuit and civil liability issues such as a clear. Therefore, the interpretation of the refined operational and arrangement of dissolution liquidation system, not only to a certain extent, to fill our country's related theory about the liquidation of company dissolution system and legislation blank, but also makes the judicial personnel to the law in the process of handling relevant cases, pointed out the direction for the practice of standardized operation company.

In the "company law judicial interpretation (two)" after the introduction, in dealing with specific cases, also met the actual legal problems similar to the dissolution of the company, now the case in court proceedings.

The circumstances of the case:

(a) the case

In the new century Port Industrial Park Co. Ltd. (hereinafter referred to as the "new Century Co") is a Singapore Investment Group Company (my client) and Beijing Feida trading company in 1999 July to jointly invest to set up Sino foreign joint ventures. After the founding of the company, due to poor management and financing problems once run into difficulties, as the company's main asset land seized by the court, to resolve the funding problems, through negotiations between the shareholders, Beijing Feida trading company active request to exit the new Century Co, the introduction of new partners, a Liaoning heavy industry Co., ltd.. In 2005 December, Beijing Feida trading company will its stake in the joint venture in 48% of all transferred to the case of a Liaoning Heavy Industry Co. Ltd., a Singapore Investment Group Company also will be 3% of the shares transferred to the Liaoning Heavy Industry Co Ltd, a Liaoning Heavy Industry Co., Ltd. joint venture shares accounted for 51%, Singapore Investment Company of a group the 49% stake in the venture, Liaoning Heavy Industry Co., Ltd. has in the holding position.

Liaoning is a heavy industry limited company in the new Century Co, only a small amount of money was raised to have as, moreover, a Liaoning heavy industry limited company to the controlling shareholder identity, with the new Century Co providing security for their own land, to the city commercial bank loans 50000000 yuan. The company is facing severe debt burden and judicial proceedings, the company's business difficulties deeper. The contradiction between the two shareholders delegate to the new director of the Century Co on the company issues arising in. A group of Singapore Investment Company under the helpless, forced to give up the company management.

I accept a Singapore Investment Group Company, the company in the new Century Co's investment is evaluated, we found a new Century Co, the existing assets (mainly facing judicial disposal of land), even in the judicial disposal after paying off the debts, there will still be two to three hundred million of assets, if a Singapore Investment Group the company completely give up on new Century Co equity, justice, the remaining assets if handled by a Liaoning Heavy Industry Co Ltd, will seriously damage the interests of the company a Singapore Investment group. How to actively safeguard their legitimate rights and interests?

(two) determine the action of ideas

The author in a careful analysis of the case, according to the Supreme People's Court promulgated a new "company law judicial interpretation (two)" the relevant provisions, determine the dissolution lawsuit idea of new Century Co.

1, determine the litigant.

According to the "company law judicial interpretation (two)" the provisions of fourth: "the 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 ", to my client a Singapore Investment Group Company as the plaintiff, the new Century Co as a defendant, in a Liaoning Heavy Industries Co. Ltd. for third people, registered lodge a company dissolution litigation to the intermediate people's court to the company.

2, legal facts and reasons.

First of all, the new director of Century Co long-term conflict, and not through the shareholders' meeting, the company management has serious difficulties.

Since 2007, my client and the third person of a Liaoning Heavy Industry Co Ltd were appointed to the new board members of Century Co differ in many business matters of the company, the board has not formed before the resolution to long-term cannot normally held. Because of the new Century Co is composed of only two shareholders, between the shareholders long-term mutual distrust, the board of directors deadlock cannot by shareholders will solve, were unable to reach an agreement, the new Century Co can not continue normal operations, operation and management of serious trouble.

The proportion of investment effect, my client directors is always in a passive state in the decision of new Century Co management, are subjected to third people. My clients in the new Century Co management cannot effectively exercise the shareholder's rights, improper nor effective control of the company's assets outflow, serious in passive state.

Secondly, serious difficulties in the operation and management of the new century, continued existence would make me the principal shareholders suffer heavy losses.

During the period of new Century Co management, because in the project and other major litigation caused serious difficulties in the management of the company, the company assets as land seized by the court, once land is disposed of in accordance with the law, will lead directly to the company can not achieve the purpose. In addition, third people use in the board of directors holding status, to provide security to the city commercial bank loans 50000000 yuan for its own use new Century Co assets, has been unable to return, the direct damage to the legitimate rights and interests of the new Century Co and my client. This kind of situation, growing in my client almost quit the company management situation, the new Century Co, if the continued existence of the plaintiff shareholders will make more significant losses.

3, a company dissolution litigation law and judicial interpretation of the provisions of.

Based on the above, combined with the "PRC Company Law" the 183rd regulation "has serious difficulties in the management of the company, its 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 to dissolve the company", and "the company law judicial interpretation (two)" the provisions of the first paragraph "alone or combined holding company shareholder vote ten percent shareholders, the following circumstances put his powder company litigation, 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' meeting or the Shareholders General Assembly resolution, company management Serious 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 ", we in the organization of the relevant evidence materials, in a timely manner to the city people's court filed a lawsuit to dissolve the company.

(three) to achieve the purpose of litigation

The case went to court procedures, we promptly according to the "company law judicial interpretation (two)" 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 provisions of the people's court may grant the preservation" and "the provisions of the civil procedure law" in article ninety-second, for the preservation of the property to the people's court. Once the new Century Co land be prosecuted after paying off the debts, the remaining part of the property will be the people's court to freeze, and after the dissolution of the company, the following liquidation proceedings in the distribution, my client will be timely in accordance with the law to participate in this part of the assets of the.

Can say, company dissolution lawsuit is only my client as minority shareholders to implement a means to actively control the assets of a company. But the lawsuit and adopted the preservation measures, the dissolution of the new Century Co the purpose of litigation in fact has already been reached, my client has made new Century Co remaining assets is only a question of time and procedures.