--The implementation of judicial consideration of the revised Company Law
   Li Guoguang (Professor, deputy director of the NPC Law Committee, advisory committee of the Supreme People's Court of Shanghai Jiao Tong University law school) Wang Chuang (the Supreme People's court two people court judge, J.D.)

Editor's note: "the people's Republic of China Company Law" by the ten NPC Standing Committee18The meeting was revised in October 27, 2005, shall enter into force as of January 1, 2006. The Supreme People's court vice president, chairman, the deputy director of the NPC Law Committee, advisory committee of the Supreme People's court, Shanghai Jiao Tong University law school professor Li Guoguang and the Supreme People's court two people court judge, J.D. Wang Chuang wrote "problems" the trial case a paper, apply to the revised Company Law in judicial practice. The in-depth interpretation, has the important guiding significance. The three to be published, readers.

     Look from the perspective of market economy, the modern world is a world of today's era of company, but also the company's era. Along with our country socialist market economy, play a decisive role in the market economy status of corporate organization, plays an important role in attract people's attention. But because of the present company law from the administrative regulations and emerges, with strong administrative color and strong traces of the planned economy, so it has been difficult to adapt to the needs of reality. Amendments to the company law of the end of the transition, the legal status of the company law, is an important step to improve the legal system of company and to improve our legal system of socialist market economy, it will bring important influence on corporate litigation cases.

  One of the important spirit of the revised company law is: according to the principle of private law, the mandatory norms in company law amended as arbitrary norms, reduce legal mandatory intervention, strengthen the legal effect of the articles of association of the company, give the corporate autonomy more. The people's court in the legal relations within the company, when prudent for company autonomy, to leave enough space. For the validity of the articles of association of the company, the people's court shall handle cautiously. Company dividend amount, in principle belongs to company autonomy and shareholder autonomous area, the people's court is not for others. The people's court in the exercise of discretion by reference, the business judgment rule spirit, considered the company directors, senior management responsibilities.

The judicial power of a company, Proceedings of the appropriate intervention

  USA scholar Battelle once pointed out:"Limited liability company is the greatest invention, its significance even more than the steam engine and the invention of electricity."Limited liability company is the basic organization form of the modern enterprise system, has become a powerful driving force and a powerful lever for economic development. Therefore, from the perspective of market economy, the modern world is a world of today's era of company, but also the company's era. Along with our country socialist market economy, play a decisive role position of the company organization in the market economy, to a considerable extent, about the various resources, environment, employment, market and social harmony and stability and so on, attract people's attention plays an important role.

  The current company law is the legal important enterprises and adapt to the economic transition of China's special requirements, the 1994Years7Month1DayAfter the implementation of the positive role, set up in the specification, and promote the company operations become more and more obvious, not only speed up the pace of reform of state-owned Enterprise Inc, but also promotes the non-public enterprises company type growing. Can say, the current company law has played a huge role in starting process of the reform of enterprise system in our country. At the same time, the people's court accepting the number of company cases has been to yearly double-digit percentage increase, to1999Annual peak, about150Million, the amount in dispute6000Billion yuan, accounting for the nationalGross domestic productTotal8%.2000Years, bring a lawsuit to the people's court company disputes continue to rise sharply, almost involved in civil litigation, disputes16For case, number is embodied in: confirmation of shares and equity transfer, infringement right of shareholders, the Shareholders General Assembly resolutions invalid confirmation, shareholders would not fulfill the obligations of company shares, shareholders, business conference convening right, corporate resolution against the rights of shareholders, the shareholders' right to know8A dispute case. But with the deepening market-oriented, the current company law originally existed in the legislative idea, legislative system, legislative technology and other aspects of the problem is increasingly obvious. Because the law is from the administrative regulations and emerges, with strong administrative color and strong traces of the planned economy, the civil rights and obligations and lack of standard, especially less on procedural law norms,Has been hampered by the company and the shareholders to seek judicial relief channel,Because of the litigation and interoperability is not strong in the establishment and operation of practice in the face of many legal disputes helpless, equally difficult to go on or retreat in the company; some important entity system and lawsuit system, such as lack of disregard of corporate personality, related party transactions, corporate deadlock, shareholder representative litigation system, as well as the company law theory and the court the lack of precedent, the people's court accepted and heard in such cases could not face the dilemma can be. To sum up in a word, the existing legal provisions in the company law has been difficult to adapt to practical needs.

  In order to alleviate the practice of corporate law trial can't can cause problems, the people's court did not stand, sit and wait for the legislative system turned preparation begins after intervention in corporate life, but actively participate in and regulate and promote Corporate Events big industry in the past. On the basis of the general principles of the civil law, company law, the relevant judicial interpretations in the people's court, in case of disputes, but also by the State Council administrative regulations, orders, notices, Zhejiang, Jiangsu; Beijing and some other provinces and municipalities, the Supreme People's Court on the basis of investigation is a guidance for some internal trial case the local judges, to unify thinking, maintain the dignity. Because some basis for trial level is not high, many differences and loopholes, the courts of the geographical location and economic development level, make a trial company cases arbitrarily large, local and departmental protectionism is strong, the trial level is unbalanced. The company disputes not only become one aspect of civil and commercial trial work in the most controversial, but also commercial trials need to standardize and strengthen the part. In order to enhance the national courts, dispute case level, the Supreme People's Court on the basis of understanding of relevant laws and legislative intent, summary trial practice, the people's courts at all levels, and listen to the views of various sectors, in2003The second half of the year launched the "provisions on Several Issues concerning the trial of the company disputes(A)The draft ", and" people's court "and related website. But with the company law revision work started, to be on the safe side, the Supreme People's court to shelve the "draft" interpretation of the company law, the company law amendment after processing.

  　2005Years10Month27Day, the ten NPC Standing Committee18Meeting examined and adopted the draft amendment of the company law, ending the current company law transitional legal status, an important step is to perfect the legal system of company of our country and the perfection of our legal system of socialist market economy, will develop our company system of norms and, further play the role of corporate governance structure in the construction Chinese socialism in the market economy, to achieve victory puts forward sixteen plenary session to the comprehensive construction well-off society in the new development starting point"Eleven five"The main goal of planning is important. Although there are many disputes in the revision and review process, but it is after all a comprehensive revision of the draft law. Major problems and practical problems of the revised company law is mainly to solve the basic problem, urgent need to address the company's procedure, such as the establishment of the company system, the one person company system, company capital system, corporate governance system, the corporate personality denial system, shareholders' right protection system, related party transactions regulation system; modify, improve a lot be clear and operational content, absorption of the effective judicial interpretation of the content and the international prevailing rules, procedure, enhances the litigious nature of the corporation law to a great extent. From the trial concept, entity program selection until the execution, the revised company law will the company litigation dispute cases brought about a series of important influence. The following six aspects should pay close attention to the issue of implementation of the revised Company Law, the focal point is to improve the level of corporate litigation.

  Range adjustment of company law has two aspects: one is that all of the company's organization, including promoters, the relationship between shareholders, between the shareholder and the company, the company organization relationship, the relationship between company and the competent authorities of the state; two is company shares, capital increase or decrease, the transfer of shares and corporate organization part of the business relationship related. The adjustment object of company law are mainly focused on the company's organization and internal relationships, are secondary, secondary to management and external relationships of the company. One of the important spirit of the revised company law is: according to the principle of private law, the mandatory norms in company law amended as arbitrary norms, reduce interfere with law, strengthen the legal effect of the articles of association of the company, give the corporate autonomy more. For example, voting, dividend distribution, investment valuation, general meeting of shareholders and the board of directors of the division of rights, foreign investment and guarantee, are determined by the articles of association of the company. In view of this, the people's court in the trial cases, should stick to moderate intervention principle in the judicial idea, the guiding ideology, physical treatment and discretionary aspects, positive and prudent for judicial intervention on Corporate Events, this is to achieve fair and justice of the necessary conditions in the field of company law.

  (a) trial idea: stick to the principle of private autonomy

  Adhere to the principle of private autonomy, respect the corporate autonomy and decision-making, handle the relationship between intervention and company autonomy in accordance with the law, the people's court hearing is the key of company disputes."Commercial law is the law of all the way to freedom, and at the same time is the most rigorous form of law"(see Zhang Guojian: "commercial law" Sanmin book publishing,1980Year edition, No.24Page). The main problems existed in current company law lies in the fact that, rarely to the company autonomous space, unavoidably, a break in law. Practice has proved, this rules do all the practices is not only feasible, but also difficult to do, Corporate Events differ in thousands of ways of the corporate governance may not follow the same pattern. In view of this, the people's court in the legal relations within the company, should be cautious to, have enough space for the company autonomous leave. The people's court not to judicial power to replace the company business judgment normal,But to respect the normal business judgment. The judge does not fit to make wise decision, justice in all cases, even if the judge out of good intentions and so. Generally speaking, the transaction should be the main company for those within the company to company autonomy according to the articles of association, as long as the company autonomous content does no harm to the transaction security, social stability, which is based on commercial considerations should respect their independent to determine their own affairs, respect their meaning freedom and civil liberty, admit the force of company autonomy. Only for those involved to sound organization, transaction security, such as controlling shareholders, directors and senior management personnel abuse of the autonomy of private law and the civil liberty and causes the company rights and interests is damaged, the people's court to intervene in the judicial judgment, to replace the commercial judgment.

  (two) the guiding ideology: caution on the validity of articles of Association

  The justice principle and concept of people's Court upheld the trial of autonomy of private law that is to carefully deal with the validity of the company constitution. The articles of association of the company is the company internal contract, parties on major matters of the company expected, according to the actual situation through several rounds of repeated negotiated to achieve its maximum benefits compromise, contains the future development direction and the distribution of major matters right decisions for the company, have reason to be respected. At the same time, the articles of association of the company is a necessary condition for the establishment of the company, the company registration authority of constitution review as an important prerequisite for registration with the company, therefore also have reason to be respected. In general, the articles of association of the company includes absolutely necessary items, relative necessary items and arbitrary items. The revised Company Law Article25Article, article84Restrictions on the articles of association of the company inside this contract shall stipulate the limited liability company and Limited by Share Ltd, the absolute items recorded is the company law; if there is lack or defective, can be formed by agreement of the parties to supplement or remedy according to the law of Corporation stipulated by the articles of Association of the company, do not necessarily lead to invalid or dissolution of the company. Legitimacy of the articles of association of the company is the company's effectiveness. Easily deny the articles of association of the company, not only would complicate the corporate behavior has been conducted, and the severity of the shareholder responsibility; but also detrimental to the interests of the creditors, affecting social and economic stability.

  (three) physical treatment: dividend should not interfere with the company

  Dividend distribution depends on whether the company has for the distribution of profits, the specific amount depends free judgment to shareholders in the shareholders or the general meeting of shareholders. This judge is often affected by the shareholder wealth maximization and the recent long-term wealth maximization two distribution concept, its itself does not have legal and illegal not. In addition, the dividend is subject to the company's category (listing Corporation and non-listed company), and rate of market status and development prospect at home and abroad, the company changes and other factors. For example, as a result of any listing Corporation shares fluctuations of interest rates, the signal will be passed one of the companies into trouble to shareholders or other vast potential investors. Therefore, many listing Corporation pursues the dividend rate is relatively stable dividend policy, if not for profit status of the company's long-term support such stable dividend policy also is so, the company is hoping its operation will take a turn for the better in the future. Many of the company's shareholders may prefer to pay the rent, interest, and other forms of share dividends, or simply do not distribute any form of dividend, for the company assets accumulated to a certain extent, then sell it at a profit (see Liu Junhai:"Revision and interpretation of the company law: a moderate judicial intervention as the center", contained in the "law"2005No.3Period). Visible, the amount of dividend distribution, principle belongs to company autonomy and shareholder autonomous area, the people's court is not for others, to avoid judicial tyranny. Also should see, although China's company law will dividend rights prescribed by the shareholders' meeting or the general meeting of shareholders, but this does not mean that the dividend distribution behavior completely outside the scope of judicial review. According to the revised Company Law Article22The provisions of the people's court, judicial review of dividend distribution behavior of stay should be placed on the shareholders or the general meeting of shareholders, the board of directors of the procedural flaws, if shareholders or the general meeting of shareholders, board of directors meeting convening, voting in violation of laws, administrative regulations or the articles of association of the company, the shareholders may within sixty days the day when the resolution is made, request the people's court to revoke. The shareholders' meeting or shareholders' general meeting, the resolutions of the board of directors in violation of the law, administrative regulations or the articles of association of the company's violation, shareholders can also confirms the resolution invalid lawsuit to the people's court. Similarly, in the management of the company or the controlling shareholders abuse of the capital majority rule, deliberately over from the provident fund, and the non dividend or less dividend and its press small shareholders means, aggrieved shareholders also have the right to make a mandatory dividend distribution companies appeal to the people's court.

  (four) discretion: reference business judgment rule

  The people's court in the exercise of discretion by reference, the business judgment rule spirit, considered the company directors, senior management responsibilities. The business judgment rule(business judgment rule)Is USA state court developed and widely used a reasonable operating errors from the board of directors of the company legal responsibility (see (United States) RobertWHamilton, Liu Lisheng: "summary" company law, Chinese Social Science Press1999Year edition, No.255Page). American law "principles of corporate governance" article4.01Article3Provisions, make the business judgment of the director or manager and judge the content not interested; there are reasonable grounds for believing that the circumstances of relevant business judgment information fully, appropriate, reliable; there is good reason to believe that the business judgment is made in the best interests of the company, it shall consider their honest obligations errors in judgment, the loss caused by the rational management of the resulting, may be mitigated or exempted from liability."The business judgment rule and the consistency between existing obligations, duty of care, if the controversial in making business judgment as a rational person undertake prudent behavior that, even if this behavior results finally proved to be a wrong judgment and cause losses to the company, the directors are not liable responsibility"(see Zhang Minan: "the company law on the balance of interests", Peking University press,2003Year edition, No.398Page). This means that, the business judgment rule only protect directors behavior without fault and not protect their wrongdoing.

     Thus, the business judgment rule not only in line with the company business and the complexity of the business decisions of its own, and in accordance with the operation of the board of directors of the company management mechanism, to encourage the board of directors, senior management personnel management, bold and aggressive, more effectively with the shareholders for the company to create value. If you do not exclude court for unnecessary intervention reasonable business judgment, it is impossible to eliminate the fear psychology, companies will also come to a standstill. Therefore, the people's court for distribution of discretion on responsibilities of directors, senior management personnel, consider the business judgment rule of operation and reasonable judgment of the spirit, is a good choice.

Statutory capital system and the legal liability of defective capital contribution of shareholders, the company's two

  The capital of the company is the company's survival"Blood", is not only the material basis for the operation of the company, the company is the material guarantee of foreign debt, has the special function marks the company credit. Therefore, the company capital system is a system form is very important in the company law, and support the company through the legal system, plays a guiding role of core, embodies the orientation of the rule of law. The revised Company Law in the system of the capital formation does not take the authorized capital system, but continue to use the legal capital system, in order to consolidate the company's capital structure, safeguarding the safety of transactions and economic order; at the same time according to the current situation of economy of our country the investor, the original full pay system modified for subscription system, for investment (or share capital) in installments, no longer need to one-off paid. Article26A minimum registered capital of a limited liability company10Million yuan,30Million yuan,50Million yuan, will be reduced to3Million yuan; Article81The provisions of the minimum amount of registered capital for Limited by Share Ltd500Million; and allow shareholders or sponsors since the date of establishment of the company2Within two years paid, further to relax investment company5Years. Visible, the revised company law is the legal capital system and subscription system structure, which not only reveals the company law to reduce the threshold for the establishment of companies, the establishment of the company is more simple, the value orientation of encouraging investment, but also means that the revised company law has established the capital system of our own, suitable for national conditions the.

  In the statutory capital system, the sponsors or the capital contributions made by shareholders as shareholders obligations to the company, but also the material basis of company shareholders bear limited liability company material premise and foreign civil liability. Judicial practice shows a lawsuit over company, limited liability company shareholder disputes especially defective capital contribution of shareholders caused occupy a considerable proportion of investment disputes. Because of the existing company law on the defective capital contribution of shareholders and the composition of the civil responsibility stipulation too principle, combined with the practice of company operation is not very standardized, resulting in the trial practice of disagreement, difference. Although the revised Company Law in the28Article, article31Article, article36Article, article92Article, article94Article, article200Tiao Hedi201The provisions of the processing principle, but because of the regulations are too simple and operability is weak, the actual treatment is difficult, so the legal liability of defective capital contribution of shareholders is still an important issue the people's courts must deal with.

  (a) manifestation of defective capital contribution of shareholders

  Defective capital contribution of shareholders mainly for shareholders not investment, insufficient capital contribution, improper capital contribution and withdrawing capital in violation of company law on the obligation of shareholders. Can be basically summed up as false investment and capital flight two.

  A false capital contribution refers to shareholders on the surface from the actual not funded, essential feature is that the shareholder fails to pay the corresponding price made on equity,Such as the company law article200The situation. In practice, mainly as follows: (1) with no actual cash or higher than the actual cash Jinzhangchan, false bank statement for the capital verification report, in order to obtain the company registration (2) with false investment procedures for capital verification report, in order to obtain the company registration (3) in kind, industrial property rights, non patent technology, land use rights, but did not do the procedures for property transfer (4) as investment in kind, industrial property rights, non patent technology, the actual price of land use right is significantly lower than the price specified in the articles of association of the company; (5The establishment of a company) shareholders, in order to cope with the verification, the money to the company account after short-term and immediately transferred out, the company is not the actual use of this money management (6Not audited net assets) of investment, only to provide investors with less overvalued assets accounting statements note liabilities verification (see the Jiangsu Provincial Higher People's court two people court:"The cognizance of defective capital contribution of shareholders and its civil responsibility""Civil trial, load China" No.3Roll, No.62Page).

  Withdrawal of capital refers to the shareholders in the company after the establishment of the paid capital secretly withdraw, such as company law article201The situation of the. Typical forms of practice is: (1The controlling shareholder) using its dominant position, forced the registered capital contribution in currency a part or all of the removed (2) based trading relationships forged false, such as companies and trading relationship between shareholders, the company will a few shareholders registered capital to shareholders (all3) non monetary part of registered capital, such as buildings, plant, machinery and equipment, industrial property rights, proprietary technology, the right to use the site in the verification is completed, will be some or all of it away (4) without the statutory common reserve fund or statutory public welfare fund or making false financial accounting report inflated profits, in the short term to the distribution of profits proposed investment (the name5) take monetary contribution, to the other without the audit evaluation and the actual value is obviously lower than the declared value of non monetary part account, in order to achieve the purpose of capital flight (6) by providing collateral to shareholders in withdraw investment (see Xi Jianlin:"On the withdrawing shareholder""Civil trial, load China" No.4Roll, No.215Page).

  　(two) the liability of defective capital contribution of shareholders

  To enrich the Surety Company capital maintenance company, shareholders, creditors and the interests of the public, the promoters of the company or the shareholders shall bear the corresponding liability of defective capital contribution.

  　1A false capital contribution obligation of shareholders

  　(1) shareholders false capital contribution to the company and other shareholders of the liability for breach of contract

  In Limited by Share Ltd, because the promoters agreement for all sponsor has the binding force of contract, breach of the agreement and is not paid or not paid in full capital contributions, shall constitute a breach of contract. After the establishment of the company, whether it is a limited liability company or a Limited by Share Ltd, the articles of association of the company is the general rules, organization and activities, by all the shareholders or promoters jointly agreed and signed the articles of association of the company, therefore has the nature of contract (see fan Jian, Jiang Da Xing: "company law" (Volume I), the Nanjing University press1997Year edition, No.218Page). The articles of association of the company are binding on all the shareholder and the company, the articles of association of the company recorded on the shareholder capital contribution must be adequate, or constitute a breach of shareholders commitment. The revised Company Law Article28Article2Paragraph, article84Article2Paragraph respectively specified the shareholders of a limited liability company, joint stock limited liability company in violation of the articles of association of the company or the promoter of the promoters' agreement and not paid in full by the liability for breach of contract. The liability for breach of contract is strict liability, regardless of the defective capital contribution of shareholders has subjective fault or not, all to the company and has been in full shareholders bear the liability for breach of contract.

  (2A false capital contribution to the company's shareholders) difference between the supplementary liability

  The revised Company Law Article31Article about"The establishment of a limited liability company, found that the actual value of the non monetary property as set up company contribution was significantly lower than the price specified in the articles of association of the company, shall be made up by the shareholder who offered the difference; the establishment of the company and other shareholders shall bear joint and several liability"And the provisions of the article94Article about"Limited by Share Ltd was founded, the promoters fail paid up capital, in accordance with the provisions of the articles of association of the company shall pay the other promoters shall bear joint and several liability","Limited by Share Ltd was founded, found that the actual value of the non monetary property as set up company contribution was significantly lower than the price specified in the articles of association of the company, the investor shall sponsor make up the difference; the other promoters shall bear joint and several liability"The provisions of a false capital contribution, shareholders balance added responsibility of the legal basis. The difference is the essence of supplementary liability capital adequacy responsibility, is a kind of special civil liability system in the company law, its purpose is to establish a mutual supervision and mutual restriction relationship between investment guarantee company set up, to ensure capital adequacy, maintain the company creditor and social public interests.

  The legal liability of supplementary liability is the difference of the company, not the company set up the agreement is necessary, also can not excuse to shareholders of the company or the articles of Association General Assembly resolution; also is a kind of joint and several liability, the company set up any one of the lack of capital in all were negative full responsibility. The other shareholders or promoters shall bear joint and several liability, there are three reasons: first, if the company found defective situation, should lead to an invalid incorporation. But if the deal null and void, not only let the majority of shareholders or investors and others on the company look forward to, and re establishment of a company will lead to an increase in social costs and the waste of resources, the establishment of other shareholders or promoters that full responsibility to pay the joint capital, can avoid the company cannot be established or set up invalid case. Second, practice has proved that our company, other shareholders or promoters on the behavior of the false capital contribution is often occur that, even in collusion, false documents to defraud the company registration. Since the existence of fault, self responsibility, the provisions of the company shall bear joint and several liability embodies the principle of good faith the legal requirements of the company law. Thirdly, set up the system of joint and several liability, not only can more effectively protect the interests of the creditors of the company, also can produce control force mutual supervision, consciously restrain between established in the company, reduce the occurrence of false capital contribution, such as withdrawing such phenomena.

  A problem that needs to be discussed are: in the non monetary property investment situation, balance funded solely due to changes in the market, whether the shareholders bear the civil liability of false capital contribution? Because the non monetary property investment shareholders of the non currency property market is not control force, so the investment difference appears no negligence. According to the revised Company Law Article26Tiao Hedi81The provisions for the registration, the registered capital of the company by all the shareholders registered in the company (or sponsor) subscription (or call) the amount of capital (or capital). This can be extended out such a principle: shareholders shall invest value determined by the articles of association of the company, the delivery and actual investment value of a company is subject to. Funded non monetary property, even in the formulation of the articles of association according to the prevailing market prices for the evaluation of the right, if the company a market was falling, the paid in capital of the company is in fact below the specified in the articles of association of capital contribution, resulting in incorrect results and non monetary property too high price is the same in the objective on the. Therefore, the non monetary property on the added responsibility of the difference, the Surety Company is to set up, actually paid capital and specified in the articles of association capital is consistent."Of course, not only suitable for evaluation and the original property situation, is also applicable for the changes in the economy and the resulting price drop, no fault liability is set to enrich the company capital"Chen Su."The company set up by the breach of investment responsibility and capital adequacy responsibility""Jurisprudence", contained in1995No.6Period).

  (3) debt liability shareholders false capital contribution to the company creditors

  The statutory capital system in our company law, the ultimate goal of the system of registered capital pursues is the protection of the interests of creditors, maintain the security of transaction;A false capital contribution or not really belong to fraud,The company and its creditors believe that financial transactions, the expectation interest is to achieve all the claims of fraud, the shareholders of the loss and can not achieve the expected benefits, thus establishing the shareholder false capital contribution shall bear civil liability for the creditors, it is necessary to.

  In view ofThe minimum amount of registered capitalIs an important factor, as the company legal person independent personality in civil liability of shareholders, or false capital contribution to the company creditors to distinguish between two kinds of situations:The actual payment of the shareholders, the registered capital and fails to reach the minimum amount; second, the actual payment of the shareholders of the registered capital and fails to reach the prescribed in the articles of association of the amount, but has reached the statutory minimum.According to the company's statutory capital system and the revised Company Law Article31Article, article94The provisions of the spirit, in the first case, the shareholders regardless of whether he has fulfilled the obligation of capital contribution, the company shall bear joint and several liability shall be a debt. Because the basis of company law, in this case the company still belongs to the company set up the stage, do not have legal personality separate, each of the shareholders to establish relations in the process of company as a partnership, so during the false capital contribution behavior, shall bear unlimited joint and several liability for the debts in accordance with the common partnership. In the second case, because it meets the minimum amount of the provisions of the company law, it shall be deemed the company has independent legal personality, the shareholders of the company should also be protected by limited liability principle. Considering the insufficient capital contribution fault, not to fulfill the obligation of capital contribution of shareholders in the paid in capital shall be liable within the scope of the balance should be paid in capital and creditor, has to fulfill the obligation of capital contribution of shareholders did not fulfill the obligation of capital contribution within range of shareholders can not fulfill creditors bear joint and several liability. Fails to fulfill the obligation of capital contribution of shareholders of the legal duties of the company investment complement, it shall be liable to the creditors in the scope of subrogation in investment, which belongs to the responsibility. Has the obligation of contribution of shareholders on the company capital shortage has fault subjectively, also have the obligations. Because the law has stipulated the shareholders about the contribution of the internal control mechanism, shareholders have the obligation to supervise each other contribution. In addition, the shareholders of the company creditors more than to prevent false funding, and funding is not real shareholders have the right to recover, from the perspective of interest balance, the creditor shall also precede assume risk responsibility.

  Have paid their shareholders liable to the creditors of the company, can exercise the right of recourse on the grounds of breach of contract to the shareholders not to fulfill the obligation of capital contribution. In the defective capital contribution of shareholders did not lead the company's registered capital is less than the statutory minimum limit of the case, the investment is not in place of the shareholders in the scope of their respective capital contribution margin within the shared responsibility. For more than the capital contribution of shareholders not to the shareholders of the company shall bear joint and several liability for the debts of the company under the circumstances, investment between false shareholders according to their actual contribution and proportional difference should be contribution share responsibility (see the Jiangsu Provincial Higher People's court two people court:"The cognizance of defective capital contribution of shareholders and its civil responsibility""Chinese civil trial", load2003No.1Roll, No.72Page).

  　2The withdrawing shareholder responsibility

  (1) the withdrawing shareholder liability to the other shareholders

  Equality is an important principle of the provisions of the company law, the shareholders shall be in accordance with the proportion of investment interest; and the withdrawing shareholder still enjoy the equity interests, is disguised by the interests of other shareholders. In this case, have paid shareholders can according to the articles of association of the company, for withdrawing shareholders bear the liability for breach of contract; can also according to the revised Company Law Article152Herein, the company fails to exercise its right of recovery, on behalf of the company to mention the indirect lawsuit, smoke escape capital requirements will be returned to the company.

  (2) the withdrawing shareholder liability to the company

  According to the revised Company Law Article3Herein, the company enjoys the property right of legal person. Because the shareholder property and the property of the company strictly separate corporate personality independence is the premise, therefore, shareholder in the capital contribution after withdraw their capital contribution, has formed the corporation property right infringement, the company has the right to sue the smoke escape capital shareholders, for the return of the flight of capital.

  (3Withdrawing capital) civil liability of shareholders to creditors of the company

  Company assets is an important guarantee of realizing the company creditors, shareholders to withdraw the risk out investment inevitably weakens the company's solvency and increase the creditors, which constitute an infringement on creditors; at the same time, the withdrawing of civil fraud, losses due to fraud behavior of creditors of the company shareholders, should obtain compensation.

  At the beginning of the shareholders before the establishment of the normal operation of the capital flight has not been in the company, the company net assets amounted to less than the statutory minimum amount of registered capital, the company can not pay off debts, shall bear unlimited liability shareholder. After the establishment of the company, the shareholders in a variety of ways to smoke escape capital, the company can not pay off the debt, the shareholder shall in the smoke escape capital bear the liability within the scope of.

  Because of capital flight is a fraudulent concealment characteristics of illegal behavior, other shareholders are no fault, and the revised Company Law Article31Article, article94Mainly applicable to the situation of shareholder false capital contribution, therefore in the withdrawal of capital shareholders can not pay, not any other not withdrawing shareholder responsibility. But other shareholders agree or assist the withdrawing shareholder, it should be in the range of capital flight in and withdrawing shareholders together the debts of the company shall bear joint and several liability.

  In the lawsuit, the allocation of the burden of proof is the review finds that key to the withdrawing shareholder behavior. It is because the shareholders' withdrawing behavior to subtle manner, and its key evidence such as company business books, such as the balance sheet accounts are kept in the company, so as the creditor will inevitably exist evidentiary difficulties and obstacles (see Xi Jianlin:"On the withdrawing shareholder""Civil trial, load China" No.4Roll, No.225Page). Therefore, in the hearing of the withdrawing shareholder disputes, should according to the Supreme People's court "about civil action evidence regulations" article75Provisions for the shareholders, whether the withdrawal of capital, the burden of proof should in principle be by creditors, but should not be too harsh, as long as it can give the people of withdrawing capital have preliminary evidence or clues to reasonable doubt. At this time, the people's court may require the defendant to provide relevant evidence to prove its existence, not withdrawing reasonable consideration relationship between investor behavior such as company and shareholder; otherwise, there can be found in its flight of investor behavior.

    Three."Across the bridge loan"Pay the shareholder responsibility

  The shareholders of a company's own property investment is not disputed, but the contribution of shareholder loans can easily trigger disputes. Among them, the shareholders of the company by"Across the bridge loan"Payment of capital contributions in the judicial practice, is the most common, but also the most controversial case."Across the bridge loan"Is a social concept rather than a legal terms accurately, usually refers to the shareholders of the company to perform the obligation of capital contribution made by borrowing from the third person; shareholders will borrow money and make delivery company equity stake in the company, the company funds directly or indirectly returned to the lender, to offset the shareholders of the lender in arrears. In the form of,"Across the bridge loan"Lenders get paid in two ways: one is shareholder funds of the company name to shareholders, and shareholders name to lenders to repay the loan, repayment of debt, the company's financial records of the company shareholders of receivables; two is the shareholder on behalf of company funds will be paid directly to the lender, the company's financial records for lenders receivables. No matter what kind of situation, company shareholders before setting up a company there subjective intent. The administrative authority for Industry and Commerce in dealing with such cases, mostly to the withdrawing shareholder or false capital contribution for processing. As long as the lender to realize creditor's rights, it can be ascertained shareholders take"Across the bridge loan"Capital contribution. But if lenders and shareholders, lenders and signed a legal agreement, and according to the agreement the lender to shareholders, company to the lender to charge reasonable remuneration or the purchase price, and the payment are within the law allows private lending rate, it seems not that the shareholders of the company to"Across the bridge loan"The way of contribution, but this has involved the legitimacy problem between non-financial enterprises financing.

As everyone knows.The statutory capital system requires the name of the company capital and real capital consistent,Also requests the shareholders' equity holdings to be consistent with the actual investment. Obviously."Across the bridge loan"Not only will result in the difference between the name of the company capital and physical capital, but also will lead to the difference between the nominal and real equity shareholders equity,This deviates from the statutory capital system and the paid in capital requirements of the system. We believe that, by the shareholders"Across the bridge loan"Investment, the subjective aims to engage in business qualification in the name of the company, rather than in accordance with the investment amount or percentage bear the investment risk, investment income. Accordingly, should be identified by"Across the bridge loan"Shareholders have nominal shareholder identity without substantial shareholder identity. That there are three meanings: first, not shareholders shall continue to undertake the obligation of capital contribution, avoid shareholders took the opportunity to escape the obligation of capital contribution; secondly, not shareholders lost profit distribution rights; thirdly, according to the company creditors subrogation directly to shareholders put forward without recourse to implement the law, company law to protect creditors (see forest, Wang Shihua:"Company legal capital system review""Applicable law", load2005No.3Period).

Obviously the positive role of corporate personality system, but the abuse of corporate personality system and limited liability of shareholders is the spread of the phenomenon, serious damage to the company creditor and social public interests. The revised company law the company personality denial system or rule of piercing the corporate veil into our law, has important milepost significance to perfect construction system of company law of our country, undoubtedly have important influence on China's civil legislation and civil and commercial trial.
  Shareholder litigation is an important part of the legal system, the revised Company Law provisions of the shareholders limited liability company and Limited by Share Ltd, and shareholder litigation to shareholder direct action and shareholder direct litigation, as the basic content of the comprehensive start, which improve the lawful rights and interests of shareholders and the social public interests protection system is very necessary.
  Three, the company personality denial system or rule of piercing the corporate veil
  Companies act twentieth provisions of the third paragraph of the revised:"The shareholders abuse the independent legal person status of the company and the limited liability of shareholders, to evade debts, serious harm to the interests of the creditors of the company, it shall bear joint and several liability for the debts of the company."This is the important embodiment of company personality denial system or rule of piercing the corporate veil into our law, undoubtedly have important influence on China's civil legislation and civil and commercial trial.
  Company law in the form of law to give the company with independent personality, this is the commodity to a certain stage of the inevitable result of economic development, there is also the prerequisite of market economy. The implementation of the company independent personality, means that the company is independent of the shareholder, become an independent subject in the name and property and civil activities of their own and bear civil liability. Its direct consequence is led to the separation of ownership and management, investment property and the property of the company, shareholders in the companies enjoy the profit benefit right at the same time, only by its investment bear the liability for the debts of the company. Therefore, the independent legal personality and limited liability shareholders, is the construction of the two cornerstones of the Modern Corporation, the combination makes the Modern Corporation investors realized profit as much as possible to reduce the risk in the premise of desire, stimulate people generally agree on the form of company. However, the actual effect of independent personality and the limited liability of economic order is like a double-edged sword, not only provides a protective umbrella for the enterprising person,As the deceitful fraud amulet. Once the independent personality and limited liability company is sufficient to abuse, the corporate veil from the legal partition between shareholders and creditors of the company contact, covering the shareholders of the company management in the position difference, which will result in the social and public interests, the interests of creditors and other interested parties to damage the interests of. Therefore, in order to America on behalf of the common law countries case form first proposed the company personality denial system, the implementation of rule of piercing the corporate veil, and had been for most countries to accept. Since the implementation of the company system of our country, obviously positive effect of company legal personality system, but the abuse of corporate personality system and limited liability of shareholders phenomenon is spreading quickly, serious damage to the interests of creditors and social public interests. In order to rectify the order of the market economy, the State Council promulgated a lot"Notice"The relevant departments of the State Council formulate, released a lot of normative documents, the Supreme People's court also issued a number of regulations, approval and other judicial interpretation, provides the legal basis of personality escaping the obligation of the contract, the abuse of the phenomenon of overcharging, processing company. At the same time, legislation, law enforcement, judicial idea change, from the beginning of absolute maintain independent personality of the company, to the limited requirements of shareholders bear some responsibility for the debts of the company. But the civil law of our country has not introduced into the company personality denial system or rule of piercing the corporate veil, to a certain extent, affected the healthy development of the company system. The revised Company Law stipulates this important system and rules, it has an important milepost significance for perfecting the system of company law in china.
  As a result of a variety of practice the shareholders abuse the corporate personality situation varied and quite subtle,The suitable conditions and occasions so in the form of legislation to fix the disregard of corporate personality theory, has been far beyond the capability of the legislators, even in stressed as is also the case grammar and logic of the legal system of civil law countries. Therefore, the people's court according to the law concept of fairness and justice, only to judge a specific case,And on the basis of good faith, good customs and the prohibition of abuse of right, the basic principle of civil law,To realize the value goal of this system rules of fair, justice in individual cases, so as to better reflect the essence of disregard of corporate personality system. Article twentieth of the company law revised is an equitable norms, reflecting the fuzzy and complementary quality principle, applicable standards, make no denial or rule of piercing the corporate veil of corporation personality makes clear a regulation, reserved for the subsequent judicial interpretations of the Supreme People's court"System interface". We think, according to the judicial practice in China, with reference to the international practice, the specific application of the rules, the main consideration should be given to the elements of the three aspects, and pay attention to several problems of understanding.
  (a) the main elements
  The main elements include two aspects: the plaintiff and the defendant the plaintiff because of company law personality abuse damaged and have the right to file application of disregard of corporate personality system action litigants; the defendant is the abuse of corporate personality.
  　On the plaintiff, can only be harmed by the abuse of shareholders of the company creditors, including natural person, legal person or other organization.Although the judicial practice often have a shareholder of the company or companies for some interest and appeal court opened the company veil situation, but it should be strictly prohibited, namely the company itself and the shareholders of the company can not be the plaintiff. The reason is that: the company,Ask the company filed a disregard of corporate personality, it means that the company claims he is not"People",This matter from jurisprudence or logic are difficult to accept. On the shareholders ,The company independent personality and shareholder limited liability system,The shareholders were to become the biggest beneficiary at,Does not exclude the company system the requirements such as company tax and other legal burden,Even do not rule out the company at the shareholders in unfavorable situation. However, the value goal of fairness, justice, legal system, since shareholders were selected to company management,Shareholders must enjoy the benefits of the company system,Bear the corresponding burden,Accept the company as an independent legal subject all the legal consequences,Including the adverse consequences,But not for individual shareholders interests advocated disregard of corporate personality system applicable to eliminate the adverse consequences. Therefore, harmed by illegal behavior of controlling shareholder in the medium and small shareholders, which can be directly to the controlling shareholders against the interests of the mention of assumpsit, and not a piercing the corporate veil of action, and not a corporate veil between the shareholders and the shareholders.
  　The controlling shareholders, should be positive only in the implementation of the abuse of corporate personality and the limited liability of shareholders behavior.First of all, the shareholders must be substantial control ability of the company's shareholders, the controlling shareholders or controlling shareholders. Controlling shareholder does not necessarily have to be a majority stake in the company,Instead of the actual control of the company as a token. People in a company(State owned company, including family, small company and China)Or the parent company(The parent subsidiary company to maintain a high degree of control)In places, the controlling shareholders over control of the company was one of the most obvious.
  Secondly, the controlling shareholders must be active shareholders, who are not as a passive shareholder rights that did not participate in the company management or have the right to participate in the company management but are unable or unwilling to participate in the company management shareholders, should not therefore be implicated, the limited liability is recognized and protected by law.

Finally, the board of directors, managers or other senior staff may also take advantage of their positions and the abuse of corporate personality, the transfer of risk to the company, damage the interests of creditors of the company, to seek their own interests; but the company directors, managers and other senior management personnel can not be accused, only according to the articles of association of the company and relevant provisions of the responsibility of company law for the board of directors, manager. Because of the different identity will involve different responsibilities,Therefore, although in reality the company directors, managers or other senior staff are usually appointed by the shareholders of the company, but the courts must be an identity dominant shareholders and directors or managers,Only the abuse of corporate personality in the dominant shareholder identity,It may be due to comply with the applicable requirements and piercing the corporate veil, straight cable company behind the dominant shareholder responsibility.
  (two) the behavior factor
  The implementation of the corporate personality abuse of corporate personality and shareholder limited liability act, is the application of disregard of corporate personality behavior element system. The abuse behavior mainly include two types: the company law personality to avoid the contract or legal obligations, as well as the skeleton of the behavior of corporate personality.
  　First, the company law personality to avoid the contract obligation and legal obligation. Among them, the abuse of company personality evade the obligation of act mainly as follows: responsible for the prohibition of business strife contract specific not as obligations of the parties to avoid the obligations and the establishment of new companies, or the use of the old company to conceal their true behavior; have transactions huge debt company controlling shareholders by withdrawing funds or dissolution of the company or to declare the company bankrupt,The place of business, the board of directors, company staff to set up a new company to exactly the same,Improper to achieve the purpose of escape debt originally company; the company to the creditors to escape the obligation of contract fraud. Abusing the company personality evade legal obligations mainly as follows: the controlling shareholder of the new company or corporation existing company lattice,Changed for the premise of the mandatory legal norms,The real purpose is to avoid the legal obligation,So that the purpose and effectiveness of the legal norms of the lost. For example, the huge compensation to prevent business misconduct may lead to,The integration of the enterprise property belongs to decentralize some company,So that each company assets only to legal lowest standard,And only the minimum amount of insurance,So it is difficult to compensate for the losses; or use the company to avoid tax liability, social insurance or other statutory obligations.
  　Second, the formalization of the behavior of corporate personality.The formalization of corporate personality is essentially refers to the company and shareholders completely confused,The company became another self shareholders or another company,Or the agency and tools,That is, the company formed shareholders shareholders of the company (see Zhu Ciyun:"On the disregard of corporate personality suitable conditions of Jurisprudence"Contained in the "law", China,1998No.5Period).
  Generally speaking, an important characterization of formalization is the company personality, property, business, mixedThe same.
  The confusion of personality,There is no strict separation between finger between the company and the shareholder or the company and other companies. Company practice, a set of troops, two brands, a company is the individual are personality confusion situation.
  When the members of the company's property can not be with the company and other company assets as a clear distinction, that is the property confusion. This has completely deviated from the principle of the separation of property,Easily lead to conceal, the property of the company or shareholder who illegally transfer, diversion. Hotchpot Changbiaoxianwei: the main equipment and the shareholders of the company place of business, the place of business or residence completely the same,The company and the shareholders use the same office facilities; the company and shareholders' capital or other property of mixed, company capital or property transferred to non company; the company and the shareholder or a company and another company interests integration, so that the shareholders themselves can be the profitability of the company as their own property at call,Or into their personal property,Or into another company. It is because of the property confusion cannot Surety Company to carry out capital and capital maintenance of the same principles,Affect the material basis of foreign companies for its debts,Therefore the property confusion is the people's Court opened the company veil when want to focus on the content of the study. As to whether the only company accounts confusion can disregard of corporate personality should apply, as the case may be, if the accounts are in disorder did not cause the mixing property and company members and other company assets, it can not be applied.
  Business activitiesBetween the company and the shareholders, especially between companies within the group, the more common. For example,Between the company and the shareholders or different companies engaged in the same activities;Specific transactions are not separate,But by the shareholders with a control or a command, control, organization of the board of directors;Company of group of the internal implementation of a large number of transactions,Transactions, trading, transaction price and so on, need the overall interests of parent company or corporation shall prevail,No independent, free competition,Funds also therefore between companies free flowing;Company business activities without true record or continuous recording etc.. The above is enough to make the appearance almost lose the independence between the company and the shareholders or parent, sister company.
  In addition, in the action element, whether on the abuse of shareholders of the need to have the subjective criteria,There has always been a subjective and objective abuse on abuse of battle. Subjective abuse theory holds that, in order to ensure the stability of law, to prevent the disregard of corporate personality is abused,The controlling shareholders abuse the subjective intention is the subjective objective elements must be determined,Personality is the company behind the user must have the illegal or improper purpose. The objective of abuse of that,Emphasizes the subjective condition does not conform to the needs of society, but also leads to the difficulties of proof aggrieved creditors (see Zhu Ciyun:"On the disregard of corporate personality suitable conditions of Jurisprudence"Contained in the "law", China,1998No.5Period). We think, in disregard of corporate personality system background and rules, the actual operation and Function Perspective,The rules show equitable features strong. The essence of disregard of corporate personality system is through the method of balancing of interests due to the company law personality is abused and the imbalance of the interest adjustment system, in order to achieve the value goal of maintaining corporate system of fairness, justice, reflects the judicial power an intervention of corporate autonomy, it reflects the interests of the measure. In view of article twentieth of the company law revised does not specify the improper purpose or illegal use of corporate personality must have malicious in the subjective intention, therefore, to truly reflect the spirit of law "Prohibition of abuse of rights, and reduce the abuse of corporate personality objective evidence difficult, the people's court in disregard of corporate personality action should not be too much emphasizes the subjective elements of the abuse of rights.
    (three) the elements
  Results element refers to the company law personalityThe abuse of corporate personality must cause harm to others or society.For the conditions, should grasp the three points: first, the abuse of corporate personality have caused serious damage to the creditors of the company. If the shareholders against the company independent personality and limited liability shareholders purpose,But did not cause any damage to the interests of creditors,Not affect the balance of interests of the system,You cannot apply the disregard of corporate personality system to correct the imbalance of interests is not. Secondly, there is a direct causal relationship between abuse of corporate personality and losses (see [day] my wife Rong: "a new set of general principles of the civil law", Iwanami Bookstore,Article35Page). The injured party must be a causal relationship between the burden of proof to prove that the improper behavior of personality by damage and abuse of company law, otherwise,Can not be brought to the denial of corporate personality to court litigation request. Thirdly, the damage can not be compensated by the company itself. That is to say, even if the controlling shareholders abuse the corporate personality and the limited liability of shareholders to achieve its improper purpose, and to the company creditors damage, but as long as the company has enough wealth to make up for losses on creditors, the creditors could not lift the corporate veil v..
  (four) pay attention to the problem
  Although the revised company law the provisions of the company personality denial system or rule of piercing the corporate veil, but should realize, in relation to the company independent personality system and the disregard of corporate personality system, the former belongs to the dominant rules based, the only exception is applied to specific situations and the specific reasons. The specific scope of judicial interpretation in the provisions of the company personality denial system and application requirements, should be more specific and clear. The people's courts must adhere to the standards, in accordance with the law, a careful balance, prudent and applicable in the trial practice, to prevent abuse. Does not fully comply with the applicable conditions, must not be applicable legal personality negative system. Otherwise, not only will cause the entire firm legal person system in an unstable state,And contrary to the original meaning of legislation created the disregard of corporate personality system, thereby seriously detract from the independence of corporate personality system value, influence the stability and development of social economy. Therefore, the people's court in the application of corporate personality denial system, should pay attention to the following points:
  First, pay attention to the way, to avoid improper. In theThe foundation must have these three basic elements, but also pay attention to consider the difference and skill specific application, to avoid undue influence on the company legal person system. In the countries of Anglo American law, the shareholders abuse the control power to avoid their own responsibility to more and more circuitous, Court opened the company veil method are also considering different cases the plaintiff's demand, in order to achieve true fairness and justice. To America method in"Deep Rock Doctrine"(DeepRock Doctrine) as an example, the parent company to abuse the independent personality of the subsidiary company case, the court according to the equity principle,Both the requirements of economic efficiency,It is necessary to protect the interests of other creditors of the subsidiary company,But also take into account the rationality of parent company debt, reservations in piercing the corporate veil thoroughly, namely, unless the subsidiary of a serious shortage of capital or the parent company has fraud misconduct must deny the parent company's debt,Creditor's rights shall be inferior to the parent subsidiary other creditors and preferred shareholders get paid (see Zhu Ciyun:"Disregard of corporate personality in the law in the parent and subsidiary company"Contained in the legal science ",",1998No.5Period). So."Deep Rock Doctrine"Neither the negative control of the company or the Hypotaxis company qualification of independent legal person, also did not deny the controlling company also have Hypotaxis company creditor status, only after the controlling shareholder creditor's rights assignment order on other creditors and preferred shareholders, in order to protect the other creditors and preferred shareholders to. These practices are worthy of reference.

  Second, restrictions apply, is strictly prohibited to expand.In the judicial practice, is strictly prohibited for expansive interpretation of piercing the corporate veil of judgment in a particular case should be, can not be extended"Piercing the corporate veil"Rule. Strictly prohibit other victims creditors outside"Piercing the corporate veil"Strictly prohibit the use of"Piercing the corporate veil"Investigation of the controlling shareholders other than human responsibility; degree of control is strictly prohibited in the parent subsidiary company did not reach over, causing no actual loss or loss is not a subsidiary company cannot make up for the case of excessive control"Piercing the corporate veil"Wait. At the same time, the rules should be applied only to the trial procedure, cannot be extended to such as executive or administrative enforcement procedures, shall not apply to the arbitration procedure, reduce the phenomenon of expansion of res judicata. Only in this case, to deny personality, but to enhance the company's overall reputation effect. If the expansion to other than trial procedure, company personality face different organs examined, easy in practice abuse veto, have the order reversed the situation, shake and weakening of independent personality and the limited liability of shareholders.
  　Third, tracking guidance, step by step for the record.Although the revised Company Law of piercing the corporate veil rule principle and simple, but the actual content of the rules is very complicated, to truly scientific and reasonable use of the rules, must be combined with the actual characteristics of our company, for long time accumulation and summarization, according to different characteristics of the case by the people's court the superior tracking guidance, explore the applicable rules out the corporate personality negation system with Chinese conditions. Considering that the people's courts at all levels may need to open the company veil cases in judicial practice, the judge discretion between the results difficult to grasp, therefore, suggested methods applicable unveiled rules case record to the high court or the Supreme Court, so that a court to judicial practice all over the problems and experience, timely sum up, exchange information, modify or improve the content of judicial interpretation.
  Four, company shareholder litigation system

  Shareholder litigation is an important part of corporate law system, according to different litigation, shareholder litigation is divided into two kinds: one kind is purely in order to maintain their own legitimate interests of shareholders and to lift the company or other people's litigation that the direct action; another is the indirect litigation and litigation to protect the interests of the company. The revised Company Law Article22Article, article152Article, article153Article respectively specified the shareholders limited liability company and Limited by Share Ltd, and shareholder litigation system to shareholder direct action and shareholder direct litigation, as the basic content of the comprehensive start, it is necessary to perfect the legitimate rights and interests of the shareholders and the public interest protection system. In view of the present actual conditions of our country, should encourage shareholders to exercise the right to appeal, a pressing matter of the moment is to solve the following three problems:
  (a) shareholder litigation eligible parties
  　1The plaintiff qualification, problem. Shareholder identity is a necessary condition for shareholders to exercise their right to appeal. The revised Company Law Article153Such as the provisions of article,The direct litigation the plaintiff can be any shareholder of the company and the company152Article1Clause of indirect litigation as plaintiff shareholders make holding period and ownership restrictions, namely indirect litigation the plaintiff should be a shareholder of a limited liability company, Limited by Share Ltd continuously180Day above separately or aggregately holding one percent or more shares of the company. Make appropriate restrictions on the plaintiff qualification of the reason is that: although indirect litigation is an effective way to safeguard their own rights and interests of small shareholders, but because of the contradiction between shareholders disagreement or shareholders of local interest and the overall interests of the company and other factors, may cause unnecessary litigation burden. In order to maintain the normal operation of the company, it is necessary to hold a deadline to the plaintiff shareholders and shareholding limits. Among them, limit the shareholding period, to prevent the abuse of representative litigation system and the purchase or transfer of the shares; on the proportion of shareholding requirements, to ensure the plaintiff shareholder representative lawsuit filed with a certain degree of indirect.
  　2The problem, the defendant. In direct action, according to the revised Company Law Article153Herein, direct action in shaping the behaviour of the individual directors, supervisors and senior managers, in performing their duties in violation of laws, administrative regulations or the company's articles of association, the individual as the defendant. According to the company law article22The provisions in the general meeting of shareholders, shareholders' meeting, board of directors, convening, voting and other procedural flaws or the resolution is in violation of laws, administrative regulations of the occasion, because the subject of tort has become the company, so the company should be the direct defendant.
  In the indirect action, in order to protect the legitimate rights and interests of the shareholders, company law152Article2Paragraph and article3Paragraph indirect lawsuit defendant relatively broad, including company directors, supervisors, controlling shareholders, including senior management personnel within the company, including the third person outside the company. Such provisions, as appropriate. Indirect action since the shareholder representative litigation, then the right belongs to the company, in accordance with legal procedures and conditions, right of shareholders can exercise the company on behalf of the company. This can not only prevent and remedy the organs of company staff abuse of power, but also can prevent and eliminate infringement of third people to the company.
  　3The problem, the legal status of the company and other shareholders. In the indirect lawsuit, the legal status of the company and other shareholders is a cause for concern and consider the problem. Embodied: other shareholders may participate in the suit? Does the company must participate in the proceedings? If the company to participate in the proceedings, the legal status of?
  Then filed shareholder indirect litigation, and litigation and the other shareholders' interests are closely related, other shareholders in the indirect lawsuit and the plaintiff shareholder in the same position position naturally become an important problem of indirect litigation system, but the revised Company Law on this not clearly stipulated. Indirect shareholder litigation in the American, other shareholders without charge equal to group action in the group members. The law does not prohibit the other shareholders to participate in the litigation, but in group litigation rules, by the judge in the consideration of the cost and efficiency of litigation cases, decide whether to allow the other shareholders to participate in the proceedings; but when the application procedure in the interests of the applicant has by now give the parties represented, are not allowed to participate in the proceedings. Indirect shareholder litigation in Japan, the plaintiff shareholders by the prosecution, other shareholders shall not on the same subject matter of litigation and litigation, but in order to prevent the plaintiff and the defendant director conspiracy intentionally lost profits from the Japanese commercial code, "" article268Article2Lets other shareholders to participate in the shareholder lawsuit. However, because of the delays in the proceedings in the court or not properly heavier burden significantly, the limit. Our shareholder indirect procedure, we think, before the first hearing, if there are other shareholders to participate in the shareholder's representative action, shall be permitted, because this can make shareholder representative litigation risk sharing, the plaintiff, also help to find out the facts. After the first trial, the court should not normally be allowed to join the lawsuit because of other shareholders, shareholders indirectly result relates to the plaintiff shareholders and other shareholders of public interests litigation, and the other shareholders have the res judicata, among all the shareholders of the company is not necessary joint litigants, other shareholders of the company whether to participate in the litigation does not affect the trial of the case. So, the people's court should not take the initiative to put it as a co plaintiff, nor it is listed as the third party without independent claim, to avoid increased procedure time unreasonable delay or litigation cost.
  In the shareholder direct litigation, shareholder litigation of subrogation by the company, whether the company will participate in the lawsuit? We believe that, due to indirect shareholder litigation representative and subrogation, in fact the plaintiff shareholders is the company's right of action, so there is no necessary to participate in the litigation of company. But in view of the quality of autonomy of civil litigation by the company independently, can choose whether to participate in the indirect lawsuit. In addition, in emphasizing the autonomy at the same time, can not damage the public interests; if the indirect action if no company participation, will not be able to identify the facts of the case or the plaintiff and the defendant malicious damage to the interests of corporation and other shareholders, company should participate in the proceedings.
  The next question is: company in indirect action, what is the position in the litigation? In this regard, Public opinions are divergent. The viewpoint thinks, the company shall as the plaintiff; the viewpoint thinks, company should be no independent right of claim third; also the viewpoint thinks, the company shall as a new type of third people; and view, status and subrogation of company creditor legal relations in the exercise by subrogation the status of similar. We think, for the status of the company in the indirect shareholder litigation in the can not simply copy the current party system to be defined, its status is comprehensive in nature, should be based on the actual situation to define the litigation status.
  First, the company may be in the form of. For example, pre procedure in the indirect litigation, the plaintiff shareholders to prove existence of litigation and litigation of company shall reject reason, this company is in the position of the form. Secondly, the company can be substantial plaintiff. Shareholders on behalf of the company after the people's court proceedings, the judge natural binding on the company; win interests also belong to the company, company is real interests and ownership. Once again, the company can be third people. If we consider the indirect lawsuit has been conducted, the plaintiff and the defendant malicious damage to the interests of the company, can take the initiative to apply to join the action of nature. At the same time, the company in the third position; but in view of the company to participate in the litigation has not proposed independent litigation request, to participate in its proceedings is only in order to prevent litigation arising from the bad results, so it belongs to the third party without independent claim. Finally, the company can be a witness. To mention the indirect lawsuit in the shareholder, the company did not participate in the litigation; but if the people's court think, companies not to participate in the litigation will lead to the facts of the case can not be identified and may harm the public interest, may notify the company to participate in the proceedings. At this point, the company's rights and obligations is to provide evidence to the court, the lawsuit status similar to witness. Thus,"The company has legal status is quite complex in the shareholder direct litigation, but regardless of the form or substance is the plaintiff, or whether it is third or witness, is not the full sense of the parties, the local position only if the parties". The company may raise objections to the plaintiff's claim or action, request the court to review, but can't put forward new claims, cannot request to withdraw, cannot request reconciliation, no right of appeal, at the same time the company itself must be neutral, not inclined to any party. In this sense, we think, litigation independent shareholder indirect action in the company can have a style of one's own party.
  (two) indirect shareholder litigation jurisdiction
  Which court has the jurisdiction to indirect shareholder lawsuit, is an important problem in indirect shareholder litigation. Jurisdiction of indirect shareholder litigation of the Civil Procedure Law of our country does not set the plaintext. We think, the essence of the plaintiff shareholders indirectly is shareholder's company, just because the company failed to or refuse to bring a lawsuit by the shareholder representative lawsuit; therefore, the board of supervisors, the board of supervisors, the board of directors, executive director, responsible for breach of contract or tort obligation company, as a creditor of the company shall be to which the courts, indirect shareholder litigation in the plaintiff should be to which the courts. This can keep the coordination between indirect shareholder litigation system and civil law system, but also can fully reflect the shareholder indirect litigation plaintiff is the real spirit of the company. In addition, the shareholders to pursue the liability of directors to indirect litigation, according to the principle of contract disputes or territorial jurisdiction of cyberspace tort disputes, can also be under the jurisdiction of the people's court at the domicile of the company.
  (three) the distribution of burden of proof in the shareholder direct litigation
  In the general management at the edge of shareholders, the company management and decision-making situations are not the grasp of the situation, should stick to the facts of the case, by understanding the real master and control the key evidence of the party the burden of proof. The specific distribution, the plaintiff shareholders to deal with facts, violations have the burden of proof; there is no causal relationship between the company, directors, supervisors and senior management personnel shall provide evidence of harm behavior does not exist or damage behavior and the harm, or to bear the consequences of losing.
  (four) pre procedure and judicial review indirect shareholder litigation
  Shareholders have the qualification of plaintiff bring indirect litigation, is not equal to the shareholders can be directly represented the company sued the company suffered unfair behavior damage. Prerequisite for shareholders to mention the indirect lawsuit is the company refuses or fails to bring a lawsuit directly to the implementation by his improper behavior of the parties, whether the company should not seek shareholder lawsuit behavior meaning, should not and can not to mention the indirect lawsuit. Only the shareholders request the board of supervisors, the board of directors to take the necessary measures to exercise the company litigation request, but the company refused to shareholders to ignore or shareholders, shareholders filed a lawsuit to. This is the law of nations is usually specified"Exhaustion of Internal Remedies"(exhaustion of intra corporate remedies)Rules, also known as pre request rules (The demand rule). Its legal principle is: the company is a legal person shareholders and relatively independent of company, shareholders exercise their right to appeal, must maximum respect for the company's legal personality; at the same time, the"Exhaustion of Internal Remedies"The method can give the company the opportunity to check their behavior, if the company management to shareholders prosecution request, the company will be chance and plaintiffs settled in formally charged before. The revised Company Law Article152The provisions of this rule, in which shareholders before instituting the indirect lawsuit, should request the board of supervisors or not set up the board of supervisors of a limited liability company or the board of directors or supervisors, no executive directors of the board of directors to the people's court. If the request can not be met, the company have no reasonable reason but ultimately refuses or neglects to bring, shareholders may bring a lawsuit on behalf of. But in such as the relevant property is about to be transferred, the exercise of rights or the limitation of action is more than during emergency situations, shareholders have the right to initiate proceedings on behalf of immediately. Visible, pre program settings to reduce unnecessary litigation, but also can make the company filed a lawsuit, to avoid the abuse of litigation.
  To be fully general principle of civil procedure, the plaintiff may dispose of their rights, and the reconciliation. The entity to solve the problem of indirect shareholder litigation through settlement way, is in line with the principle of litigation economy; however, indirect shareholder litigation reconciliation with the general civil reconciliation is not the same, because be on behalf of shareholders interests are possible with indirect action in the interests of the company occurred conflict, if the plaintiff shareholder in the indirect action and the defendant reached a settlement or automatic withdrawal, which is not the legitimate interests of individuals in the proceedings (for example by the company bought the stock), system objective is completely deviated from the indirect action. In view of this, in order to prevent the abuse of litigious right and damage the interests of the company, to ensure that the contents of the settlement of fairness and rationality, the people's court shall not damage the interests of the company and other shareholders as the standard, strictly examine the shareholder and the company signed the settlement agreement or withdrawal request. Without the court approval of the settlement agreement or withdrawal were not binding. Future corporate can still indirect action in the same facts and reasons directly filed a lawsuit to the people's court, or other shareholders of the company based on the same facts and reasons to indirect action. The people's court"In a review of the settlement agreement, agreed to pay for the losses of the company shall be the amount shall be paid in proportion to the amount of shareholders, the possibility of winning the case and the defendant in the solvency of the company and other factors into account agreement. A number of people's court thinks, the settlement agreement clearly against the interests of the company and other shareholders, a serious violation of the principle of good faith and public order and good custom, has the right to deny the validity of the settlement agreement"Liu Junhai."Comparative study of litigation on behalf of shareholders filed right""Chinese civil trial, contained in the" general part1Roll, No.96Page). At the same time, the plaintiff shall notify the company and content, and the effect of the other shareholders to notice or announcement. Other shareholders objected to reconciliation, the court's permission, can provide evidence to the people's court for revocation of reconciliation and.
  (five) the shareholder lawsuit expense guarantee
  Shareholder litigation system is to safeguard the interests of the shareholders for the creation of a system, but the system may abuse of litigious right to interfere with the operation of the company indirectly and in the operation process, the company struggled to cope with the. In order to prevent shareholders abuse of litigious right, the plaintiff shareholders have an ulterior motive to prevent some malicious prosecutions, the revised Company Law Article22Article3Provides cost guarantee system, namely the shareholders by shareholders or the general meeting of shareholders, board of directors meeting convening, voting in violation of laws, regulations or the company's articles of association, or the resolution is in violation of the articles of association of the company and when the litigate, the people's court may, at the request of the company, require the shareholder to provide a corresponding guarantee. Although the warranty system aims to prevent shareholders abuse of litigation, but it also has some side effects, namely, the defendant may cost guarantee as a means to prevent the plaintiff shareholder lawsuits. Therefore, the use of the word is the clause"Sure", rather than"Should"This means that, to the people's court to discretion, the people's court judge and decide whether to require the plaintiff shareholders provide security. We believe that, in the specific operation, if the defendant can prove the plaintiff shareholder lawsuit filed with malice, or lack of a reasonable possibility for the company or the company's shareholders to benefit, or no value of the situation, the people's court may require the plaintiff deposit deposit or provision of a corresponding guarantee.

Associate Company is an important force to promote the economic development of modern society, but it also has some negative effects, in the security market of our country, many listing Corporation use related party transactions to cosmetic results, manipulation of profits, to circumvent the law or evade debts, seriously hinder the healthy development of this market; in judicial practice, legal issues the deadlock the increasingly prominent, has become an unavoidable problem in judicial work. Therefore, to regulate the related transactions of corporate deadlock and judicial relief, become the focus of attention of the amendment of company law.
   The problem of related party transactions five, Associate Company

  Associate Company is the inevitable product of the company system development. Associated parties through property, production and marketing of such relations, optimize the allocation of internal resources, improve the profitability of assets; through mutual borrow funds, mutual guarantee financing, timely, effectively grasp the investment opportunities, improve the operational efficiency of funds; therefore, the Associate Company has become the driving force of modern economic and social development. However, the Associate Company has some negative effects on social economy, China's Associate Company generally using Hypotaxis company's independent personality, through illegal related transactions, infringing the Hypotaxis company and its minority shareholders and creditors etc.. In the security market of our country, many listing Corporation use related party transactions to cosmetic results, manipulation of profits, to circumvent the law or evasion of debt, has seriously hampered the healthy development of China's capital market, and finally from the market economic rules, damage the Hypotaxis company and its shareholders and creditors. Therefore, regulating related transactions become the focus of the company law and securities law concerned.

  Some listing Corporation shareholders, actual controllers, directors, supervisors, senior managers and other people through the parallel transaction"Tunneling"Company, against the company, company of medium and small shareholders and creditors' interests, the revised Company Law Article21Article, article125Article, article217And so on, from the definition, the relationship involves the four aspects of a limited liability company or a Limited by Share Ltd uses the relationship between occupation of the interests of the company and the liability of the listing Corporation board relates to the relationship and program control to the regulation of related transaction, which regulate the listing Corporation governance structure, legal obligation strictly listing Corporation and its relevant personnel, is of great significance to promote the development of capital market stability.

  In the people's court in the case of related party transactions, because of the legislative gaps, so hearing difficulty, many blind spots appear in the execution, still need further exploration. Among them, how to confirm the illegal transactions is to hear cases involving transactions starting point and key. The revised Company Law Article21The clear provisions:"The controlling shareholders, actual controllers, directors, supervisors, senior management personnel shall not use its relationship to damage the company's interests of the company."This provision establishes the legal basis and principles of regulation of the related party transactions, the specific operation method according to the need of the practice, the judicial interpretation and further clear. Among them,"Through the Association"And"To damage the interests of the company"Is confirmed, two basic standards of illegal transactions. According to the judicial practice, and verification of the market economy in developed countries, the two basic standards embodies the following elements.

  (a) transaction

  Connected transaction refers to a company's internal, and other interested parties, to business decision-making can directly or indirectly control or influence. The internal relationship is controlling relationship and great affect relations, external performance for the parent company, control of the company, holding company, joint stock company, group, company, enterprise or other forms of group Multi-National Corporation. Connected transaction includes natural person and legal person association association two, the company's board of directors and other senior management personnel as the representative, the latter to the parent company or holding company as the representative. The revised Company Law Article21Article will transactions were defined as the controlling shareholders, actual controllers, directors, supervisors, and senior managers of natural person and its direct control or indirect control of enterprise legal persons, and in Chapter217The definition of controlling shareholders, actual controllers, senior management personnel and the relationship of.

  A related enterprises and the specific scope, the relevant administrative regulations and rules of China has made a clear definition. "The people's Republic of China Law of tax collection and the detailed rules for the implementation of" article36Provisions, related enterprises refers to the capital, business sales, there are directly or indirectly owned or controlled, directly or indirectly with the third party ownership or control, other have associated relations in the interests of the companies, enterprises, other economic organizations. The State Administration of Taxation on1998Years5Month20DayRelease of the "business dealings between associated enterprises tax management rules (Trial)" the provisions of article fourth, related enterprises mainly include:1Each other directly or indirectly holds shares of a party to the25%Or above;2Directly or indirectly, with third people own or control shares reached25%Or above;3The enterprise with a business lending funds of the enterprises own funds50%Or above, the total loan or enterprise10%Is the guarantee of another enterprise;4Enterprise directors or managers and other senior staff more than half or a managing director is appointed by the other enterprises;5The production and business activities of enterprises must be provided by the other enterprises franchise rights (including industrial property rights and proprietary technology, etc.) to normal operations;6The production and operation of enterprises purchase raw materials, parts and accessories (including prices and trading conditions) by another enterprise or supply;7The production of products or sales of goods (including prices and trading conditions) is controlled by another company;8Production and operation of enterprises, the transaction has other interests on the actual control of associated relationship, including the family, kinship, etc.. Is worth noting,1998Years1Month1DayThe provisions of the "rules" in Shanghai and Shenzhen two listed in section second"Should the immediate disclosure of related party transactions"Related party transactions, including the principle, the scope, avoidance measures of association, the board of directors of the affiliated transaction of the report and announcement obligation, related party transactions exempt from disclosure, not regarded as related transactions and transactions interim report content, is by far the most complete regulations on affiliated transaction in china. In this section, correlation artificially divided affiliated legal persons and persons associated, and a detailed list, and has expanded the scope of the provisions of.

  (two) the transaction motive

  Related party transactions directly relates to the interests of the association, the transactions will inevitably exist for gain and violation of duty of loyalty and obligation and damage the interests of the company. Of course, some related people may also use the master information convenient, convenient and effective to facilitate trading purposes, so as to achieve the interests of both sides"Win-win". Therefore, the people's court shall examine whether the purpose of legitimate transactions, transaction motive for such as market manipulation, transfer of profits or property, false statements, tax evasion and other malicious, is very important to judge the validity of related party transactions.

  (three) transactions

  Association of company law the regulation mainly refers to the non routine transactions related transactions in the transaction, namely the subject abuse of centralized management, the dispersed ownership or in fact control force on the company, related party transactions engaged in damage to the interests of the company. This behavior is usually between the Associate Company on the benefit, cost, cost and profit and loss spreading meter unreasonable or unfair. Common types are: sales or transaction price of commodities or stocks between Associate Company, significantly lower than the international or domestic market normal and reasonable price; Associate Company between financing and not charge interest; between the Associate Company loan money, obviously lower than the financing cost of interest rate of interest received. Is the main problem in practice, how to identify the transaction behavior whether to belong to non trading behavior of conventional, how to evaluate the transaction price, what procedures need to fulfill. Without a fair, scientific assessment mechanism, allowing the parties to the transaction itself out of an intermediary gave the results they need, is bound to harm the interests of the company and creditors. Therefore, the people's court shall refer to the market trading practices, and expert opinion audit, assessment of professional organizations.

  (four) the trading results

  Trade related transactions people should bring real or apparent possible loss to the company.

  Needs to be pointed out is, the director of the listing Corporation and its direct control or indirect control enterprise is not completely can not trade. According to the revised Company Law Article125Herein, the directors of the listing Corporation as long as the avoidance of affiliated enterprise, the right and the meetings of the board of directors resolutions related to exercise the right to vote, do not represent the directors to exercise the voting right; the meeting of the board of directors is not permitted to attend the board of directors held a meeting of the board of directors, the resolution of the no relationship is more than half of the number of directors; no relationship between the more than three people attended the board of directors, the shareholders of the general assembly by the listing Corporation. In this case, the directors of the listing Corporation and between direct control or indirect control of the business transactions shall be legal protection. Otherwise, the transaction is invalid, led to the company suffered losses, it shall bear the liability for compensation.

Six of corporate deadlock, judicial relief

  In judicial practice, the legal issues of corporate deadlock has become increasingly prominent, has become the realistic problem that can't be avoided in the civil trial practice. The so-called corporate deadlock (Deadlock), is refers to the company in existence in the operation of the contradiction between the shareholders, directors or heated disputes, and each other is not willing to compromise and deadlocked situation, leading to the shareholders' meeting, board of directors and other power and decision-making authority in the rights of confrontation and not in accordance with legal procedures to make decisions, so that the company cannot operate normally, even paralyzed state of facts. Before the revision of the company law, because of the absence of system of company law and lack of judicial idea, the people's court in the treatment of corporate deadlock in in a dilemma, dilemma"The deadlock"Position.

  (a) the reason and harm of corporation deadlock

  Modern Corporation law must emphasize the maintenance of external creditors, consumers and other legitimate rights and interests, but also to maintain the economic democracy and a balance of interests within the company. The surface reason of corporate deadlock formation is mainly between shareholders or directors of contradictions and conflicts, institutional arrangement deep reasons from the traditional company, the basic principle is based on the capital on the basis of the existence of the company and operation includes capital democracy"Majority rule"The principle as well as the embodiment of capital maintenance and full"Shareholders may not withdraw their capital contributions"Principle. As everyone knows, is a limited liability company human resources and company, the shareholders mutual has good cooperation and long-term stable cooperative relations are the important basis. The traditional company system and the principle of putting too much emphasis on the capital fixity, machinery to adhere to the three principles of the company capital and the majority principle, free movements don't allow companies to capital, but not allowed to break the internal power structure. Although this kind of institutional arrangement and capital first philosophy can maintain the stability of the company and the interests of creditors, but also restricts the reasonable flow of economic resources, especially the initiative and the lawful rights and interests of suppression of minority shareholders, such as internal and external transfer restricted shares, oppressed minority shareholders economic democracy, which prevents the require withdrawal and dissolution the company's rights. When the company capital factors and personal factors conflict, the former priority due to the institutional arrangement, which can easily lead to corporate deadlock.

  Company deadlock occurs, whether the company or the shareholders are very bad, in most cases, the shareholders constitute serious damage. Because shareholders between the parties have lost at least trust, mutual cooperation has completely broken down, so the control of the company, one party may directly against the interests of the other party. As the Usa Inc legal person RobertWHamilton said:"In the company deadlock, majority is likely to use various means to'Torture'The minority, such as recall paid positions they held, stopped paying dividends, let them wait for a year, and so on"(Zheng Taian, Du yu:"'Company deadlock'Shareholders in relief", contained in the "social science",2004No.3Period).

  From the practice of our company, in the company deadlock, usually there is a shareholders to other shareholders in fact forced and serious unfair, the original management company shareholders controlling company management and property, in fact deprived of the legitimate rights of the shareholders.

  (two) the company deadlock judicial remedies

  Before the revision of the company law, because of the lack of evidence in the company law, the people's court in front of many corporate deadlock often shown cautious attitude back, can accept, can support multiple claims have doubts about such cases, even holding should not entertain ideas. A popular view is that, as autonomous organizations of a private law, is composed by the shareholder and shareholder money making tools, the voting right of shareholder plays in corporate governance"The sacred status". Regardless of the relief measures, the court in the essence of corporate deadlock are violations of shareholder autonomy rights; although the company deadlock due to management of paralysis and chaos caused the property of the company continued to wear and erosion, but the justice of this"The company Dutch act"Still have no right to interfere; and because of discord, company party business go from bad to worse, a natural outcome of the final bankruptcy is the survival of the fittest market environment. In this regard, we believe that, although the viewpoint with respect to the company autonomy, but ignore the corporate social responsibility. Consideration of judicial intervention in corporation deadlock problem, its essence is the company law on compulsory national and private autonomy deep-seated problems. We ought to see such an important fact: the company deadlock continued not only harm the interests of the shareholders and the company itself, and the influence of all company rise and fall in external stakeholders. The accumulation of large amount of company deadlock will produce the debts of the company, the associated enterprises chain reaction, group conflicts even inspire employees, resulting in shock to the market and social stability. If the people's court shall not accept, is tantamount to put an end to the parties to obtain the legal relief way, the contradiction to the society, the results will enable a more intensified conflicts and may lead to new social conflicts.
     Therefore, for the company deadlock, the people's court shall bear the social responsibility from the perspective of the company, the company law only positive response from respect for private order to also pay attention to the public interest, from the emphasis on freedom of contract to the development trend of advocating moderate intervention, to the company deadlock in rapid intervention, so that the adverse effect of corporation deadlock is reduced to the minimum. In view of this, the revised Company Law Article183Specialized to solve corporate deadlock judicial way:"Because the company has serious difficulties in operation and management, its continued existence would make shareholders suffer great losses, 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"The people's court, for the treatment of Corporate Deadlock Case remove legal obstacles.

  Although the revised Company Law provisions of the corporate deadlock in the shareholders lodge a company dissolution suit, the people's court to dissolve the company but by way of company deadlock, should be particularly careful. As long as the company is maintaining and existence of hope, the people's court should not easily judgment for dissolution of the company. Because the company as an independent economic entity, involve too many social relations, take on the aspects of social responsibility, not to allow individual shareholders by judicial hand free to destroy it. The judicial practice in the corporate deadlock, processing in procedure and entity, should especially pay attention to the following questions:

  First, the properness of the defendant. Because the deadlock disputes not only relates to the contradiction between shareholders, directors, and related to the corporate entity's survival, therefore, the people's court in the trial of the corporation deadlock cases, shall be the company and shareholders as a joint defendant list; the parties not listed, the people's court shall notify the plaintiff to the defendant the plaintiff refused additional; additional, to dismiss a prosecution.

  Second, the mediation is necessary procedure. The company in the company deadlock"Human nature"Basic crisis, should the mediation as a necessary procedure, in line with the principle of non dissolution measures first, as far as possible to mediate between the shareholders, directors, reconciliation or the necessary rectification of the company, such as order the company to amend its articles of association, the company decided to withdraw or change etc.. For larger companies, after the dissolution of the company may have a larger social impact of the case, shall solicit the views of the parties on relevant issues, to coordinate the various contradictions, avoid the dissolution of the company and causing social instability. Allowing shareholders, trying to find and resolve conflicts may.

  Third, timely exercise of discretion and interpretation. In the case of corporate deadlock in case of disputes, the basic principle and the system of the people's court should abide by the company law, and combining the actual situation of our country existing company operation, appropriate reference experiences and practices of foreign effective alternative, in order to seek treatment as far as possible to the fair, reasonable, effective. In the trial process, should adhere to the principle of equity, timely exercise of discretion and interpretation right, to finally resolve the deadlock for the purpose, and actively take such as to inform the parties modify claims, contributed to the parties to provide relief, middle relief measures. For example, the plaintiff requests the withdrawal action, because of China's company law emphasizes the company capital three principles, limits the integration of human factors, the plaintiff is shareholder's withdrawal request will not like partners that freedom; therefore, the people's court at this time can tell the changes to the requirements for opposite party shareholder or the company acquired its stake, or request for dissolution of the company (Li Yongxiang, Zhang Fengxiang:"Analysis on the problem of corporate deadlock in litigation""Chinese civil trial, contained in the" general part4Roll, No.158Page).

  Fourth, according to the rectification system applicable to the company. Unable to reach agreement on the shareholder, can make the necessary rectification of the company, such as order the company to amend its articles of association, the company decided to withdraw or change etc.. At the same time to maximize shareholder exit mechanism, let"Shareholders of discrete"Rather than"The dissolution of a company"For the grace period, 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 save the company's objective. If the implementation of such transfer or repurchase of the company into a leading company, the company shall be changed into a company. The revised company law second chapter of third has made it clear that one person limited liability company system.

  Fifth, the court compulsory dissolution. The people's courts accepted and heard in a company dissolution lawsuit, should focus on three aspects: (review1Company deadlock does exist). To prove the fact mentioned company dissolution litigation of shareholders: the company management difficulties and come to a deadlock, shareholder incapable of action to break the deadlock; corporate deadlock continued existence would make the shareholder and the company suffered irreparable loss. (2Whether or not to abuse the company deadlock clause). The people's court shall examine whether the shareholders"Exhaustion of remedies and conditions", which cannot be solved by any other means of corporate deadlock; whether the holding company shareholder vote more than ten percent. (3Company dissolution is necessary). With the dissolution of the company the way to break the deadlock, not only for the company and its shareholders, directors, costly, operating companies for many years to win the goodwill will be destroyed on one day, shareholders, directors have poured a lot of time and energy to all one's efforts wasted, and the dissolution of the company is bound to the company staff, produced or big or small, creditors consumers and other stakeholders. Therefore, the people's court in the trial of judicial dissolution of corporation by shareholders, should consider the public interest, for larger companies, after the dissolution of the company may have a larger social impact of the case, shall solicit the views of the parties on relevant issues, in order to find out the judgment for dissolution of the company is good for shareholders and members of the company,And do not harm the public interest, to avoid the dissolution of the company and causing social instability. (originally published in the "people's court")