Beijing Haidian District people's court Civil judgment
(2000) the sea Jing Chu Zi No. 3658th
The plaintiff Qi Defeng Shenzhen City Industrial Development Co., Ltd., room 302A No. 1 Yinli building, Hongli Futian District road Shenzhen city domicile. Legal representative: Sun Depu, chairman of the board. Defendant: Xue Xiaoguang, male, the Han nationality, born in August 1, 1963, the chairman of Beijing Ankeer Communication Technology Co., Ltd., Beijing city Haidian District Tsinghua University South Gate on the south side of 313 room. The defendant Beijing Ankeer Communication Technology Co., Ltd., Beijing City, Haidian District located North Fourth Ring Road No. 29. Legal representative: Xue Xiaoguang, chairman of the board.
The plaintiff Qi Defeng Shenzhen City Industrial Development Co., Ltd. (hereinafter referred to as the Qi Defeng company) and the defendant, the defendant Xue Xiaoguang Beijing Ankeer Communication Technology Co., Ltd. (hereinafter referred to as the Ankel company) the equity transfer contract dispute case, the court, a collegial panel, the case was heard in public.Now the trial has been closed. The plaintiff Qi Defeng claimed: June 29, 2000, my company and the defendant Xue Xiaoguang signed the "equity transfer agreement", the agreement: the defendant Xue Xiaoguang agreed to hold its Ankeer company 5% of the shares transferred to the Qi Defeng company, the price of 2000000 yuan.The agreement by all shareholders Ankeer company recognition.In June 30, 2000, Qi Defeng company in accordance with the agreement will be the equity transfer price 2000000 yuan to Ankeer company account.By the end of October 23, 2000, at my request of the company, Ankeer company is not in accordance with the relevant provisions of obligations, to shareholders to change procedures for the administrative department of industry and commerce, which I have been unable to obtain legal status as a shareholder, a serious violation of the legitimate rights and interests of our company.According to the relevant provisions, to protect our legitimate rights and interests are not infringed, to the court, asked to be relieved of my company signed with Xiao Guang Xue equity transfer agreement, ordered Xue Xiaoguang and Ankeer's return my company the equity transfer price of 2000000 yuan compensation for economic loss is our loss. The defendant Xue Xiaoguang argued that: the two sides signed and has been implemented the "equity transfer", does not violate the "company law", "contract law" the relevant provisions, the contract is established in accordance with the law, shall be protected by law, any party shall not terminate the contract or contract; Qi Wheelock and company performance of the equity transfer agreement after that, has obtained legal status as a shareholder;In August 25th, Liu Xun sent Qi Defeng to Beijing to attend the shareholders' meeting and the signing of the shareholders' meeting, signed the revised Ankeer the articles of association of the company, in September 14th, Qi Defeng company to the shareholder agreement to rectify the company team of the resolutions of the shareholders' meeting, Qi Defeng not only actually enjoy the shares of the company, but the actual exercise of the rights of shareholders, the rights are not affected by any damage; without business registration, cannot be lifted "equity transfer agreement" reasons, companies in violation of administrative rules and consequences, is the only company in the industrial and commercial registration management Department's request for correction within a prescribed time limit.To sum up, the Qi Defeng company litigation request does not comply with the provisions of the law, should be rejected. The defendant Ankeer company argued: I companies should not be the defendant in this case; we do not deal with the legal consequences of industrial and commercial registration has nothing to do with the case, the legal consequences should not lead to the lifting of the contract; Defeng company representatives participated in the meeting of shareholders, enjoy the interests of shareholders, so it cannot request to terminate the deal with Xue Xiaoguang; Qi Defeng company signed a share transfer agreement with Xue Xiaoguang, Qi Defeng, the exercise of the rights of shareholders, but because there are contradictions between the shareholders, the formalities of business change is not complete; our company and Xue Xiao Guang not to the administrative department for Industry and Commerce for registration of alteration of equities of the fact to Qi Defeng apologize, and hope to go to the administrative department for Industry and Commerce in this case is required; Qi Defeng and Xue Xiaoguang dispute, the company is not a contract, should not bear the equity transfer of rights and obligations, should not return the transfer payment, rejected all Defeng company litigation request. The controversial focus of the case: the equity transfer contract, the plaintiff as the transferee to fulfil payment obligations, the defendant Xue Xiaoguang, Ankeer company did not timely for the equity transfer registration, the plaintiff is entitled to a contract between the shareholder rights, can exercise the right to terminate a contract, reason and responsibility is not for the equity registration change procedures. Before the court, the court under the auspices of the parties for the two time the exchange of evidence, Qi Defeng exchange evidence for a total of 19 copies, of which, 1 - 5 is the first evidence of evidence, evidence of 6 -- 19 is additional evidence.Xue Xiaoguang and Ankeer company to the court to provide 15 pieces of evidence, the evidence of 1 -- 13 is the first to provide evidence, evidence of 14 -- 15 is to provide supplementary evidence. In December 20, 2000, the Institute conducted a public hearing on the case, the parties of adducing evidences according to the evidence exchange number.Qi Defeng company to produce 19 copies of evidence and proof of the name are: evidence from 1, a photocopy of the business license of the company of Qi Defeng, that Qi Defeng company has the legal subject qualification.Evidence 2, equity transfer agreement, that Qi Defeng and Xue Xiaoguang established the equity transfer contract relationship.Evidence 3, Qi Defeng paid Ankel 2000000 yuan remittance certificate, proof of Qi Defeng company will invest money has been remitted to the Xue Xiaoguang.Evidence 4, Xiamen international Trust Investment Company Shenzhen Securities Sales Department issued principal confirmation, the business department commissioned remit 2000000 yuan stock Qi Defeng company.Evidence 5, Ankeer company business archives, prove Ankeer company did not apply for shareholders to change procedures; two original retail invoice with Xue Xiaoguang that Xue Xiaoguang false capital contribution.Evidence 6, issued by the Beijing Business Information Center Ankeer company, Tengfei company business registration.Evidence 7, HangYu star company registration status.Evidence 8, issued by the Beijing Municipal Bureau of State Taxation two commercial retail invoice proof of identification.Evidence 9, a certificate issued by the Fengtai Bureau of state taxation.Evidence 10, issued by the Bureau of industry and Commerce of Beijing Miyun development company 98 annual inspection report (with company dedicated seal financial style), the report stated Ascendas has no computer operating ability and range.Evidence of 6 - 10, further proof that two original retail invoice is false invoices, false Ankeer company registered capital.Evidence 11, testimony Ankeer company shareholders Liu Runsheng, Liu Jia November 27, 2000 issued.The evidence shows that Liu Runsheng in December 17, 2000 12, issued by the situation, prove Ankeer company seal is not lost, and Shen Wanqiu in the company's general manager of hands, Ankeer company to announce the official seal loss by original void, and delay the change of shareholders of the company registration.Evidence 13, Anker shareholders Zhao Ping testimony.Evidence 14, general manager of Shen Wanqiu's testimony.Evidence 15, Li Xiaoyu testimony.Evidence 16, testimony to the company resources minister Yi ping.Evidence 17, market Minister Li Meng testimony.Evidence 18, project manager Wu Jie testimony.Evidence 19, issued by the project manager Hong Tao testimony.The testimony of witness in 12 external evidence to prove that Xue Xiaoguang to the registration department is not for the equity transfer registration is a breach of contract; prove false capital verification Ankeer company. Xue Xiaoguang and Ankeer company on the evidence provided by the company: Qi Defeng said on the evidence of 1 - 5 without objection, the evidence is irrelevant to the case of 6 - 10, 11 - 19 is evidence of the original shareholders Ankeer Co. Ltd and staff of the testimony, these people have left the company, has the contradiction with company, evidence of the effectiveness of their problems, not to be recognized.Objection two original invoice on the evidence of 5 included to prove the problem, put forward by Xue Xiaoguang as a buyer to seller issued by the true and false invoices not review obligations, true and false invoices unrelated, cannot prove that the false capital contribution.12 Liu Runsheng statements about the official seal of the evidence is true, to be recognized. By the testimony of Qi Defeng, the company's evidence as follows: evidence from 1, 2, 3, 4, 5, 12 have the authenticity, legitimacy, effectiveness is proved on the facts of the case.Evidence of 5 to be confirmed, but Qi Defeng proposed the authenticity of the invoice and the termination of the contract the fact no relevancy.Evidence of 6 - 10 can confirm that Qi Defeng company from the relevant registration department to verify material, but the material and the truth no association.The legitimacy of evidence, evidence of 11 13 - 19 sources to be confirmed, but the witness and Xue Xiaoguang and Ankeer company has a bad relationship, not be the authenticity of the admissibility of testimony. The defendant Xue Xiaoguang and Ankeer company to produce 15 copies of evidence before the court exchange in the trial.Evidence of 1-4, respectively is the articles of incorporation of Ankeer company business archive material carrier name; Tiancheng letter assets assessment report; keep the accounting firm in the 011429 report; report the Charoen preserved joint accounting.The above evidence to prove Ankeer company is legally registered company.Evidence 5, equity transfer agreement, the original, the defendant to prove the legal relationship between the parties.Evidence of 6-9 were in August 25, 2000 shareholders meeting record Ankeer company; August 25, 2000 shareholders meeting to amend the articles of Association; resolution August 25, 2000 shareholders meeting (1); August 25, 2000 shareholders meeting (2, 3).The above evidence to prove Ankeer company has obtained the legal identity of shareholders, at the same time to prove that there exists a contradiction between the shareholders.Evidence of 11-13, were Liu Runsheng, Liu Jia, Li Xiaoyu "equity transfer agreement" and Liu Runsheng, Zhao Ping, Liu and give up ownership of letters; resolution of shareholders will be announced in September 15th September 14th; the record of the meeting of shareholders resolution.The above evidence to prove that Qi Defeng has been in the exercise of the rights of shareholders.Evidence 14, Ankeer company business license and seal loss statement, proof of Ankeer company business license and seal has set aside the papers in the "Beijing news".Evidence 15, Ankeer company related to the balance sheet, income statement and the related documents, proof of Qi Defeng company 2000000 yuan shares have been transferred by Xue Xiaoguang. Qi Defeng, Xue Xiaoguang, Ankeer company to provide the evidence that the evidence no objection: 1.Evidence - evaluation report had no objection to the authenticity, but the content has the objection, the report completely according to the invoice to assess, not a reasonable discount, unreasonable; assessment unit not of true and false invoices check; audit report also violated the principle of authenticity audit.Evidence of 5 equity transfer agreement without objection.No objection to the authenticity of the evidence 6-13; raised an objection to the proof of the problem, do not think the evidence that Qi Defeng company has made legal status as a shareholder.Evidence 14 newspaper statement seal missing facts, but Ankel is false statement on Xue Xiaoguang's instructions under the seal did not actually lost.Evidence of 15 without objection, but does not recognize the legitimacy of the company, Qi Defeng think this evidence shows that the first defendant through a series of operation, 2000000 yuan seems to be legalized, but such is not the fact. After both sides of the two defendants in court testimony, the evidence is as follows: the authenticity, legitimacy of 1-14 evidence confirmation, effectiveness and has proved to the facts of the case.The legitimacy of the 15 sources of evidence confirmation, but has no relationship with the case to prove the facts. The trial subpoena a witness for the prosecution of Shen Wanqiu to testify in court.On Shen Wanqiu's testimony, both parties recognized Shen Wanqiu Qi Defeng stated that companies with 2000000 yuan to buy Xue Xiaoguang held Ankeer company 5% of the shares and Ankeer company statement in the newspaper seal obsolete facts, the court for confirmation. The court heard the original, was told that debate, both sides of opinion evidence of cross debate, final statement and the Institute of the evidence cognizance, ascertain the facts as follows: In June 29, 2000, Xue Xiaoguang signed the equity transfer agreement, and Qi Defeng agreed: Xue Xiaoguang agreed to hold Ankeer company 5% of the shares transferred to the Qi Defeng company, for the price of 2 yuan000000 yuan.Qi Defeng in 2000 July 1 days before the stock purchase money into Ankeer company account, by all shareholders Ankeer company confirmed, Qi Defeng company shareholder's rights according to the articles of association of the company.In June 30, 2000, Ankeer company commissioned Xiamen international Trust Investment Company Shenzhen Securities Sales Department 2000000 yuan of investment funds in the name of the accounts into Ankeer company account, buy Ankeer company 5% of the equity. In August 25, 2000, Ankeer company convening a meeting of the shareholders, the shareholders agreed between Xue Xiaoguang and Qi Defeng's equity swap agreement, and the company's original charter was amended, the amended articles of association of the company as a shareholder Ankel, stated Ankeer company shares accounted for a ratio of 5%. In September 5, 2000, Ankeer company because the company's former general manager Shen Wanqiu refused to take official seal, contract seal,Business license is a copy of legal representative, to Ankel, Xue Xiaoguang, and Xue Xiaoguang in the "Beijing news" on the grounds of the official statement, Lost Chapter contract invalid.In September 25, 2000, Ankeer company to re submit the business license, official seal, contract seal and financial seal. During the trial, Qi Defeng proposed to change the prosecution request in the investigation stage, asking the court to revoke its and Xue Xiaoguang signed the equity transfer agreement, the reasons for revocation is Ankeer company's original shareholders Xue Xiaoguang and Zhu Chunfu proved that the two invoices its investment is false invoices, Xue Xiaoguang and Zhu Chunfu, the actual investment is not in place, Ankeer company the registered capital is false, and Xue Xiao Guang based on false capital verification signed the equity transfer agreement is signed by fraud, requesting revocation.Xue Xiaoguang and Ankeer company court disagreed with the Qi Defeng company change the prosecution request, think Qi Defeng is two v. two different facts presented, the court should not also accepted; Xue Xiaoguang and Zhu Chunfu to provide verification unit two to confirm real investment invoice is issued to sell people buying people and Xue Xiaoguang Zhu Chunfu, even if the invoice is false, also cannot presume the real investment is false, and the capital verification report issued capital verification unit, except for invoice according to physical examination.The trial, Qi Defeng admitted, equity transfer agreement signed, understand and anticipate Ankeer's ongoing research projects and high-tech companies and their shareholders can give Ankel the future earnings. Specify Ankeer's industrial and commercial registration materials: Ankeer Co. Ltd was established in November 10, 1999, registered capital of 2000000 yuan, with physical capital, human capital, Xue Xiaoguang and Zhu Chunfu, in which Xue Xiaoguang invested 1200000 yuan, Zhu Chunfu invested 800000 yuan.In November 3, 1999, Beijing Tiancheng letter Assets Appraisal Co. Ltd. (hereinafter referred to as Tiancheng credit evaluation company) issued an assessment based on Xue Xiaoguang, Zhu Chunfu investment, the content is: "I in 1999 November to accept Xue Xiaoguang, Zhu Chunfu commissioned, the preparation of investment in fixed assets of an Keer company (COMPAQ server etc.) and inventory (computer), in accordance with the provisions of the assessment procedures, were assessed using the reset cost method, the evaluation results are as follows: the Xue Xiaoguang Committee estimated assets of the original purchase value of 1214500 yuan, to assess the value of 1214500 yuan, the original purchase Zhu Chunfu estimate the value of the assets value of 86.5 yuan, to assess the value of 86.5 yuan."In November 4, 1999, Beijing Rui Wencheng joint accounting firm issued capital verification that opened, content is: after verification, Xue Xiaoguang put into real 1214500 yuan, Du Xiaobo put in 865000 yuan, total 2079500 yuan, has Tiancheng assessment rating company confirmation.Xue Xiaoguang, Zhu Chunfu investment real in the business license, shall timely handling of property transfer procedures, otherwise, the capital verification report is invalid.For 65000 yuan 14500 yuan and Zhu Chunfu Xue Xiaoguang put put, stay after the establishment of the company, as the "other payables processing".In December 1, 1999, Beijing remained limited liability company issued by the accounting firm special audit report on firms paid in kind transfer capital to Ankel company, express the audit results as follows: 1200000 yuan investment in real assets Xue Xiaoguang, Zhu Chunfu invested 800000 yuan real assets have been completed transfer procedures, into the enterprise financial accounts, the confirmation.The company registered capital of 2000000 yuan, all physical assets.As of November 30, 1999, the paid in capital of 2000000 yuan. The above facts, and the evidence exchange record, the court record of documented evidence. The court considered, price and the transfer of Qi Defeng and Xue Xiaoguang signed the equity transfer agreement on the transfer of the share transfer conditions, made a clear agreement, transfer agreement is the same meaning of both parties, the contract has been established.In this case, the transferor and the transferee intention expressed is genuine, according to the provisions of China's "contract law", the parties expressed their true meaning, legal content, not in violation of state law, the contract shall be valid; China's "company law" provisions of article thirty-fifth, the shareholders to a person other than a shareholder capital contribution, must be approved by a majority of all the shareholders consent.The provisions of article thirty-seventh, resolutions of the shareholders meeting on the transfer of shareholders to a person other than a shareholder capital contribution.Ankeer company shareholder Xue Xiaodong other people to the company outside that Qi Defeng company share transfer, Ankeer company has been convening a meeting of the shareholders, shareholder equity members of Qi Defeng, and Xue Xiaoguang all through the transfer agreement, both parties of transfer behavior in accordance with the provisions of China's "company law" the relevant equity transfer effective element, so transfer agreement was in June 29, 2000 through the resolution adopted at the meeting of shareholders shall become effective on the date of. The equity transfer agreement after the entry into force, have the following obligations of the transferor and the transferee: the transferee bears the obligation to pay the price to the transferor, the transferor has proposed a shareholders meeting to amend the articles of association, handle the relevant formalities of change to the administrative department for Industry and Commerce for the record's obligations to the company.The share transfer agreement after the entry into force of the transferor and the transferee binding, but also has binding force on the company.That is, in the agreement enters into force, the company has the transferee as a shareholder in the register of shareholders, to industrial and commercial registration of alteration registration obligations, the transferee shareholder legal identity, shareholders through attending a shareholders, the company's major policy decisions and major issues for the final declaration of rights distribution; right on the company's profitability.In this case, the Qi Defeng company to fulfill payment obligations, the transferee Xue Xiaodong and company have for the change of registration obligations to the industry and commerce.According to the "Regulations" of the people's Republic of China on the administration of company registration in thirty-first the first paragraph, Ankeer company shall from the date of change of shareholders for the change of registration to Beijing Haidian District City Administration for Industry and commerce within 30 days.Looking from this case, in August 25th changed the articles of association of the company, the shareholders will have recognized Qi Defeng as Ankel shareholder, so the period for registration of alteration of equities from August 25th to calculate change registration.Ankeer company for the alteration registration obligations.Because of the major shareholder Xue Xiaoguang both Ankeer company, is the legal representative of Ankeer company, has a dual identity, so Xue Xiaoguang should bear the primary responsibility for alteration registration.In September 25, 2000 the company for Ankeer to re submit business license, official seal, contract seal, financial seal, but from that date to Qi Defeng sued is the date of November 3, 2000, more than 30 days.In the lawsuit, the transferee and transferor company Qi Defeng Xue Xiaoguang not enough evidence that the respective obligations as reminders, change registration executive Ankel, there is no evidence that a reasonable reason, it can not handle this, that transferring party change main obligation people registered Xue Xiao Guang and Ankeer company should bear the main responsibility. But Xue Xiaoguang and Ankeer company fails to handle the registration of alteration of equities should not result in the cancellation of the equity transfer contract, the main reasons are as follows: first, equity generally limited liability company transfer agreement by the shareholders' meeting for approval, not only of the equity transfer of both legally binding, but also for the Ankel company and have other shareholders binding.Second, the equity transfer effect and change of registration of shareholders are two different concepts, change registration of shareholders equity transfer agreement is the problem, its function is to effect make equity changes generated publicity, not equity agreement elements; and the transferor and the company to do the registration of change of shareholders is generally Agreement attached obligations, rather than the main obligation.According to the "contract law" of the spirit, the party in breach of collateral obligation, does not lead to the loss of the other party to the purpose of the contract, the other party to the contract has no legal rescission right.Third, the equity transfer agreement, shareholders have started according to the amount of capital invested to enjoy the owner's equity, making major decisions and the right to choose managers, that is to say, whether registered not registered, the right new shareholders have begun to exercise, not to change the registration exercise conditions.Ankeer company to amend the articles of association, representative Liu Xun Qi Defeng, attended the two shareholder Ankeer company, this shows that Qi Defeng has begun to exercise the rights of shareholders.Fourth, Anker company exceed the time limit for the equity transfer registration caused by the Qi Defeng company still can not enjoy the shareholder qualification with the publicity effect; but the lack of the judicial relief means can also submit, submit, Ankeer company shareholder rights can with the publicity effect, and thus protected.During the proceedings, Xue Xiaoguang and Ankeer company said that as soon as required.Extent of breach of contract so Xue Xiaoguang and Ankeer company did not give Qi Defeng caused serious consequences can not realize the contract purpose, so as the transferee company Qi Defeng proposed cancelling the equity transfer contract claims no factual and legal basis, the court not to support it. During the trial, Qi Defeng company to Xue Xiaoguang hide its registered capital investment false, false registered Ankeer company is put forward for the rescission of the equity transfer agreement litigation request, the court considered that this claim, factual basis and factual basis to terminate the contract lawsuit proposed in the indictment is different, at the request of matters is the two phase coexistence litigation request, the request is an independent lawsuit, not only action requested changes, Qi Defeng this company shall be prosecuted, this case is not the merger trial. Under normal circumstances, the proposed revocation of contract litigation, terminate the contract lawsuit should wait to cancel the contract lawsuit trial results, is to terminate the contract lawsuit should suspend the trial, to restore hearing to be cancelling the contract after the end of the trial.But in this case, Qi Defeng proposed to cancel the contract litigation matter does not affect the termination of the contract lawsuit trial, there are three main reasons: first, the transfer of equity transfer agreement is the subject of both parties signed the contract value of equity market value, instead of Ankeer company's registered capital.Second, the transfer price is evaluated both Ankeer company equity market value based, registered in knowing that Ankel capital Qi Defeng company 2000000 yuan case why with the purchase of 2000000 yuan Ankeer company the share of 5% is because see Ankeer company and relevant university research units have signed a technical cooperation project, the Qi Defeng company in the lawsuit also made it clear that the equity transfer agreement signed with Xue Xiaoguang because the principal Keer company future development prospects in the signed agreement.Third, the existing evidence can only Qi Defeng company provide proof of the assessment of real invoice report basis is not true, is not sufficient to prove that Xue Xiaoguang's contribution in kind of false.Because the company is a business organization, its registered capital is the incorporation of a company's conditions, development prospects, the company's income is decided by the company.Even if the funding is not in place, it will not necessarily lead to companies established in accordance with the law of equity shareholders to transfer the business after the flawed.Therefore, companies by shareholders is not in place and the transfer of shares by shareholders behavior whether there is no causal relationship between the fraud.The facts do not constitute a reason for the contract fraud in the case, does not affect the hospital on the trial and adjudication. To sum up, the hospital of the people's Republic of China according to the "contract law" article eighth, article forty-fourth paragraph second, "the people's Republic of China Company Law" article thirty-fifth paragraph second, the provisions of article thirty-sixth, the decision as follows: A, dismissed the plaintiff Qi Defeng Shenzhen city industrial development limited lifting of the equity transfer agreement and other litigation request. Two, the defendant Beijing Ankeer Communication Technology Co., Ltd. in the entry into force of this decision within one month after the relevant administrative department for Industry and commerce registration of alteration to the plaintiff Qi Defeng Shenzhen City Industrial Development Co., Ltd. and accused Xue Xiaoguang of equity transfer. The case acceptance fee of twenty thousand ten yuan (the plaintiff paid), the defendant Beijing Ankeer Communication Technology Co., Ltd. burden (to pay within seven days after the effective date of this judgment).The property preservation fee eight thousand five hundred and twenty yuan, the plaintiff Qi Defeng Shenzhen City Industrial Development Co., Ltd. burden (paid). Any party who refuses to accept the decision, the verdict can be delivered within fifteen days, submit the written appeal to the court, and the copy number according to the other party, and pay the court costs twenty thousand ten yuan, appeal to the Beijing first intermediate people's court.As in the appeal after the expiration of seven days does not pay the cost of appeal, the appeal by automatic withdrawal of treatment.