When the company increases its capital, shareholders have the priority to subscribe for the capital contribution in proportion to the paid-in capital contribution. The current law does not stipulate the time limit for exercising this right, but from the perspective of maintaining transaction safety and stabilizing economic order, combined with the rules and characteristics of commercial behavior, the people's court should limit the reasonable time limit for exercising this right when trying related cases, and do not support the claim of exercising the preemptive right beyond the reasonable time limit.
Case introduction 1. Mr. Yang and Hongri Company are shareholders of Kechuang Company. Among them, Mr. Yang contributed 676,000 yuan, accounting for 65,438+04.22%; Hongri Company contributed 276,000 yuan, accounting for 5.8 1%.
2. In June 65438+February 65438+June 2003, Kechuang Company held a shareholders' meeting and passed the resolution of "Accepting Chen as a new shareholder" (75.49% agreed, 20.03% opposed and 4.48% abstained). Mr. Yang and Hongri Company voted against it, demanding to exercise shareholders' preemptive right to newly-increased registered capital.
Three. 65438+February 65438+February 8, 2003, Kechuang Company signed a Share Agreement with Chen, stipulating that Chen would contribute 8 million yuan to subscribe for 6 1.3 yuan/share newly added by Kechuang Company.
4.65438. On February 22nd, 2003, Hongri Company submitted a report to Kechuang Company, claiming that Jiang Yang and Hongri Company have the priority to subscribe for the newly-increased capital.
5.65438 On February 25th, 2003, Kechuang Company completed the industrial and commercial change of registered capital and contribution ratio, and the contribution ratios of Mr. Yang and Hongri Company were reduced to 6.20% and 2.53% respectively. The next day, Hongri Company submitted the Report on Not Handling the Registration of New Capital and New Shareholders to the Industrial and Commercial Bureau.
6. On March 30th, 2005, Chen transferred his 665,438+053,800 shares of Kechuang Company to Gusheng Company (the legal representative of Gusheng Company is Chen) and went through the industrial and commercial change registration.
7.5438 June+February 2005, Jiang Yang and Hongri Company filed a lawsuit in court, requesting to confirm that the resolution of "absorbing Chen as a new shareholder" passed by the shareholders' meeting of Kechuang Company in June 5438+February 2005+June 2003 was invalid, and to confirm that they had the priority to subscribe for the newly-increased capital of 8 million yuan. Mianyang Intermediate People's Court decided to reject its claim.
8. Hongri Company and Mr. Yang refused to accept the appeal, and found that the content of "accepting Chen as a new shareholder" in the resolution of the shareholders' meeting of the Sichuan Higher People's Court was invalid. They decided that after Jiang Yang and Hongri Company paid the share purchase price of 8 million yuan to Kechuang Company, Gusheng Company would return its153,800 shares to Kechuang Company, and Kechuang Company would return them at the same time.
Nine, Kechuang Company, Gusheng Company and Chen refused to accept the judgment of second instance and applied to the Supreme People's Court for retrial. The Supreme People's Court's judgment: 20.03% of the newly-increased shares in the resolution of the shareholders' meeting (the total contribution ratio of Mr. Yang and Hongri Company was 20.03% before the capital increase) were invalid because they infringed on the preemptive right of Hongri Company and Mr. Yang, and 79.97% of the newly-increased shares were valid, but the claims of Hongri Company and Mr. Yang to exercise the preemptive right of newly-increased capital were rejected.
Reasons for losing the case Although the resolution of the shareholders' meeting of Kechuang Company on June 5438+February 65438+February 6, 2003 was partially invalid because it violated the rights of Hongri Company and Mr. Yang to subscribe for the newly-increased capital according to their respective investment proportions, whether Hongri Company and Mr. Yang can exercise the right of preemption of the above-mentioned newly-increased capital still needs to consider whether they properly claim their rights. The right of shareholders to subscribe for the company's newly-increased capital belongs to the right of formation. Although the current law does not clearly stipulate the time limit for exercising this right, in order to maintain the transaction safety and stabilize the economic order, this right should be exercised within a certain reasonable time limit, and because the exercise of this right is a typical commercial act, the determination of the reasonable time limit should be stricter than the usual civil act.
In this case, when Hongri Company and Mr. Yang held the shareholders' meeting in Kechuang Company on June 5438+February 65438+June 2003 and expressed their intention to exercise the preemptive right, they knew that their preemptive right had been violated, but they did not actively claim their rights through litigation in time. Later, when Kechuang Company held a shareholders' meeting and passed the proposal that Chen donated part of his equity to Gusheng Company, Hongri Company and Mr. Yang attended the meeting and did not object. Red Sun Company and Mr. Yang filed a lawsuit in changes in equity nearly two years later, and the value of the disputed equity changed greatly. Allowing them to exercise the preemptive right at this time will lead to the destruction of stable legal relations, and it will also easily lead to the consequences of obviously unfair. Therefore, the Supreme People's Court ruled that the reasonable period for Red Sun Company and Mr. Yang to claim the preemptive right has expired, and accordingly rejected their claims for the preemptive right.
Lessons from losing the case, lessons from experience, and lessons from the past. In order to avoid similar losses in the future, the following suggestions are made:
1. When shareholders exercise the preemptive right to newly-increased capital, they must exercise it as soon as possible within a reasonable period after discovering that their rights have been infringed. Otherwise, for the sake of maintaining transaction security and stabilizing economic order, the court will not support it to exercise its preemptive right beyond a reasonable period.
2. Shareholders should exercise the preemptive right in an appropriate way, and if necessary, they should bring a lawsuit. In this case, three objections were raised, namely, voting against the resolution of the shareholders' meeting to discuss capital increase, submitting a report requesting to exercise the preemptive right to the company, and submitting a report requesting not to go to the industrial and commercial bureau for industrial and commercial change registration, but failing to bring a lawsuit to the court in time. Therefore, the shareholders in this case failed to exercise the preemptive right as they wished, not because they did not express their opinions in time, but because they chose the wrong way to express their opinions. The lesson and experience of this case is: after the preemptive right is infringed, if it cannot be resolved through consultation, the shareholders should immediately explicitly request to exercise the preemptive right and exercise it through the court.
Relevant laws and regulations "Company Law"
Article 34 Shareholders shall receive dividends in proportion to the paid-in capital contribution; When the company increases its capital, shareholders have the priority to subscribe for the capital contribution in proportion to the paid-in capital contribution. Except that all shareholders agree not to pay dividends according to the proportion of capital contribution or not to subscribe for capital contribution in priority.
The following is the Supreme People's Court's exposition of this part of the case at the trial stage:
Although the resolution of the shareholders' meeting of Kechuang Company on June 5438+February 65438+February 6, 2003 was partially invalid because it violated the rights of Hongri Company and Mr. Yang to subscribe for the newly-increased capital in proportion to their respective contributions, whether Hongri Company and Mr. Yang can exercise the above-mentioned preemptive right of newly-increased capital still needs to consider whether they claim their rights properly. The right of shareholders to subscribe for the company's newly-increased capital belongs to the right of formation. Although the current law does not clearly stipulate the time limit for exercising this right, in order to maintain the transaction safety and stabilize the economic order, this right should be exercised within a certain reasonable time limit, and because the exercise of this right is a typical commercial act, the determination of the reasonable time limit should be stricter than the usual civil act. In this case, Hongri Company and Mr. Yang, when Kechuang Company held the shareholders' meeting on June 5438+February 65438+June 2003, knew that their preemptive right had been infringed, and expressed their intention to exercise the preemptive right, but they did not actively claim their rights through litigation in time. Later, when Kechuang Company held a shareholders' meeting and passed the proposal that Chen donated part of his equity to Gusheng Company, Hongri Company and Mr. Yang attended the meeting and did not object. Hongri Company and Mr. Yang filed a lawsuit in changes in equity nearly two years later, and the value of the disputed equity changed greatly. Allowing them to exercise the preemptive right at this time will lead to the destruction of stable legal relations, and it will also easily lead to the consequences of obviously unfair. Therefore, Mianyang Intermediate People's Court of Sichuan Province found that the reasonable period for Hongri Company and Mr. Yang to claim the preemptive right had passed, and there was nothing wrong with it. Therefore, our hospital does not support the request of Hongri Company and Jiang Yang to exercise the preemptive right to the newly-increased capital of Kechuang Company.
The case originated from the Supreme People's Court Mianyang Hongri Industrial Co., Ltd. and Mr. Yang v. Mianyang High-tech Zone Kechuang Industrial Co., Ltd. [(20 10) Mintizi No.48], which was published in the third issue of People's Republic of China (PRC) the Supreme People's Court Bulletin, 20 1 1.
Further reading (1) Rules for determining the time limit for prosecution in company law-related litigation
1. Request to confirm that the company resolution is invalid (valid), the resolution does not exist, and the valid resolution is not limited by the statute of limitations.
Case 1 heard by Shanghai No.1 Intermediate People's Court: v. Shanghai Patent and Trademark Office Co., Ltd. [(20 16) Hu 0 1 Minzhong No.9630] held that "the cause of this case is a company resolution dispute, not a claim dispute. According to the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases, the limitation is not applicable to this case.
Case 2: The case of Zhu v. Zhengzhou Geweien Technology Co., Ltd. and Jiwei Company [(20 16) Yu 0 1 Minzhong No.9355] tried by Zhengzhou Intermediate People's Court held that "the resolution of the shareholders' meeting is invalid from the beginning, and the illegality of the invalid contract will not change with the simple passage of time. Zhu applied to the people's court to confirm the validity of the resolution, and the two-year statute of limitations does not apply.
Case 3: The dispute between Pei and Qinzhou Building Materials Co., Ltd. [(20 16) Gui 07 386] tried by Qinzhou Intermediate People's Court held that "the lawsuit brought by the parties to this case to confirm the invalidation of the resolution of the shareholders' meeting belongs to the right of formation and is not limited by the relevant provisions on the limitation of action, that is, the limitation of action; The appellant's defense of limitation of action is untenable, and this court does not support it. "
However, some courts have different opinions on this issue, and believe that the lawsuit to confirm the validity of the company resolution (the company resolution is invalid and valid, the resolution does not exist, and the effective resolution is not formed) should be limited by the statute of limitations.
Case 4: Yu Beihong v. Guizhou Qinglongda Real Estate Development Co., Ltd.,,,,,, Liu [(20 16) Qian MinzhongNo. 10] The Higher People's Court of Guizhou Province held that "for the above fictitious shareholders' meeting and its resolutions, as long as other shareholders know or should know that their shareholders' rights have been infringed, in accordance with the law,
2. The request to cancel the company resolution shall be filed with the court within 60 days from the date of making the company resolution.
(1) If the lawsuit is filed more than 60 days, the cancellation right will be extinguished.
Case 5: The dispute over the resolution of the shareholders' meeting between Zhongke Investment Co., Ltd. and Shandong Heze Zhongke Biological Products Co., Ltd. [(20 16) Lu Min ZhongNo. 12 16]] heard by the Shandong Higher People's Court held that "Wang Zhiqiang did not receive the notice of convening this shareholders' meeting and other reasons were whether the procedures for convening the shareholders' meeting violated the company's articles of association and laws. The resolution of the shareholders' meeting was made on August 65, 2004 at 438+06. Wang Zhiqiang should bring a lawsuit to the court to cancel the resolution within 60 days from the date of the resolution of the shareholders' meeting, but Wang Zhiqiang failed to exercise the right of cancellation, and the right of cancellation has been extinguished. "Accordingly, the resolution of the shareholders' meeting is deemed to be valid.
Case 6: The dispute between Peng and Zhuhai Boneng Mould Co., Ltd. [(20 16) No.04 1380] was heard by Zhuhai Intermediate People's Court, and it was held that "the period for shareholders to exercise their cancellation right is within 60 days from the date of making the resolution, which belongs to the agreed period, that is, the period for exercising their rights remains unchanged. After the expiration of the time limit, the revocation right holder will be lost. According to the actual situation of this case, the resolution of shareholders' meeting No.20140920 was made on September 20th, 20th14th, and the appellee Peng, as a shareholder of Boneng Company, filed a civil complaint with the Jinwan District People's Court in Zhuhai on October 20th16th10th.
Case 7: Zhao Jianguo and Beijing Urban Construction Huiyou Installation Engineering Co., Ltd. [(20 16) J 02 Zhong Min No.5186], which was heard by Beijing No.2 Intermediate People's Court, held that "Zhao Jianguo's board resolution advocating cancellation was made by Urban Construction Company on June 25, 2006, and Zhao Jianguo made it on June 20 186 according to the above provisions.
(2) The time in transit for mailing complaints is not included in the scheduled time within 60 days.
Case 8: The case of dispute between Wu Chanyan and Kunming Xinyi Housing Industry Development Co., Ltd. [(20 16) Yun01No.2666] tried by Kunming Intermediate People's Court decided to cancel the dispute, holding that "the appellant has exceeded the time limit for exercising the right of revocation when filing a lawsuit, and his claim should be rejected according to law. According to the fourth paragraph of Article 82 of the Civil Procedure Law of People's Republic of China (PRC), the period does not include the time in transit, and if the litigation documents are mailed before the expiration, it will not be expired. The appellee filed a complaint with the court of first instance by mail on February 7th, 20th/Kloc-0th/5th, which did not exceed the statutory time limit for exercising the right of cancellation stipulated in the Company Law. Therefore, the court did not support the appellant's claim because there was no legal basis. "
(3) The provisions on suspension, interruption and extension of the limitation of action do not apply to the 60th scheduled period.
Case 9: Huai Peng, Shandong Huihaoli Food Co., Ltd. and Zhang Xingzhen Company settled the dispute of cancellation. Binzhou Intermediate People's Court [(20 16) Lu 16 Minzhong No.840] held that "this case is the appellee Huai Peng's request to cancel 201.065438+. Shareholders can request the court to cancel the resolution within 60 days from the date of making the resolution, and the appellee filed a lawsuit with the court on February 26th, 20 13, after which the appellee withdrew the lawsuit. On September 9, 2065438, the appellee filed a lawsuit again, which was 60 days beyond the statutory time limit. The statutory limitation within 60 days belongs to the predetermined period, and the suspension, interruption and extension of the limitation of action are not applicable. If it exceeds the statutory time limit, the people's court will not support it. It has been more than 60 days since the resolution involved was made and the appellee Huai Peng filed a lawsuit in this case, so the appellee Huai Peng's claim should be rejected. "
3. The time limit for prosecution of cases claiming the preemptive right shall be determined according to the specific litigation request.
(1) complained that the equity transfer agreement violated the preemptive right, and then requested to confirm that the equity transfer agreement was invalid. Some judges think that the statute of limitations should be applied.
10 case: plaintiff Wu and defendants Wu Jianyuan and Ma Jianshe [(20 14) No.84] Nanjing Intermediate People's Court held that "on July 26th, 20/kloc-0, Wu and others jointly wrote to Nanjing Public Security Bureau, arguing that Wu Jianyuan and Ma. Therefore, they knew about the related matters of equity transfer at that time. They claimed that the equity transfer involved violated their preemptive right, and then demanded that the equity transfer agreement involved was invalid and they should exercise their rights in time within the statutory limitation period. However, in this case, Wu appealed to our court on February 4, 20 14, requesting to confirm that the equity transfer agreement involved was invalid, which exceeded the statute of limitations stipulated by law. Therefore, this defense against Ma Jian was adopted by our hospital. "
The case of 1 1 heard by the people's court of gusu district, Suzhou: the dispute over the transfer of shares by Lu Shude, Ji Lihua and Dai Dejun [(20 13) Gusu Shangchu ZiNo.1kloc-0/87] holds that "20/kloc-0" is the case of "20".
Case 12: dispute over equity transfer with Jiang, Shu Weimin, etc. Jiangsu Higher People's Court heard [(20 14) Su Shang Wai Zhong Zi No.0010] that "Jiang appealed that the Hong Kong court had made a judgment on the equity matters involved as early as March 20 10, so we think that even if Li Guozhu made a 20/0 decision in the Hong Kong court, Judging from the existing evidence in this case, the People's Court of Baoying County, Jiangsu Province made a criminal judgment of (20112.27) Baoxing Zi Chu No.0430, and Li Guozhu should have been No.201165438 at the earliest. Jiang's appeal reason that this case has exceeded the limitation of action cannot be established, and this court does not support it. "
(2) If it is claimed that the equity transfer agreement infringes the preemptive right, and then it is required to confirm that the equity transfer agreement is invalid, some referees think that it should be put forward within a reasonable period of time.
Case 13: The dispute over the transfer of shares between Duan Weiqiang and Duan Weigang, Dong, Dong Shuli and the third person Qiu Yang [(20 14) No.81] heard by the People's Court of Fengman District, Jilin City, held that "although the relevant laws and the articles of association of Wutai Company do not clearly stipulate the time limit for other shareholders to exercise the preemptive right, Since the equity transfer between the three defendants in this case occurred as early as 2006, the plaintiff, as a shareholder of five companies, should have timely knowledge of important information including changes in the company's equity structure, but he was unwilling to exercise this right. In addition, in the inquiry record made by Jilin Public Security Bureau on June 5438+February 65438+May 2009, the plaintiff also clearly stated that he knew the fact that the defendants Dong, Dong Shuli and the third person Qiu Yang had invested in Wutai Company. Therefore, the plaintiff did not claim rights for many years knowing that the shareholders of the company transferred their shares to people other than shareholders and that their shareholders' preemptive rights were infringed. It shall be deemed that it has given up this right ... Defendant Duan Weigang transferred the equity to Defendants Dong and Dong Shuli as early as 2006, and went through the formalities of equity change registration. During the long-term operation of the company, a new personal relationship has been established between the new and old shareholders, and the new shareholder structure tends to be stable, and the disputed equity value between the two parties will also change greatly compared with that at the time of transfer. On August 25th, 2004, the plaintiff demanded to exercise the shareholders' preemptive right, which will inevitably lead to the destruction of the stable legal relationship, and the transaction security will not be guaranteed as it should, which may have legal consequences in obviously unfair. Now the plaintiff Duan Weiqiang has filed a complaint, which has obviously exceeded the reasonable time limit. Therefore, Duan Weiqiang, the plaintiff, claims to confirm that the Company's Registered Capital Transfer Agreement signed by Duan Weigang and Dong Shuli, the defendants, is invalid and will not be supported. If the plaintiff believes that the defendant Duan Weigang's transfer of equity has caused him to suffer losses, he can claim rights separately. "
(3) The right to claim that the equity transfer agreement violates the preemptive right, which leads to the cancellation of the equity transfer agreement, shall be filed within one year of the agreed period.
CaseNo. 14 tried by Guyuan Intermediate People's Court: dispute over the transfer of shares between Yan Fang and Chen Tinghui and Fang Xinhui [(20 16) Ning 04 No.734] held that the appellant Yan Fang, as a shareholder of Ningxia Longwangchi Liquor Co., Ltd., had the preemptive right to transfer shares to other shareholders. In this case, Fang Xinhui, a shareholder of Ningxia Longwangchi Liquor Co., Ltd., reached a share transfer agreement with Chen Tingyu, which was approved by the board of directors of the company and sealed by the company. Ningxia Longwangchi Liquor Co., Ltd. also arranged the position of Chen Tingyu and appointed Chen Tingyu as the general manager of the company. Paragraph 1 of Article 55 of the Contract Law of People's Republic of China (PRC) stipulates that "the right of cancellation shall be extinguished in any of the following circumstances: the party entitled to the right of cancellation has not exercised the right of cancellation within one year from the date when he knew or should have known the reason for cancellation". According to this regulation, Appellant Yan Fang should exercise the right of cancellation within one year from the date of convening the shareholders' meeting on February 22, 2004, but Appellant Yan Fang failed to exercise his right within one year from the date when he knew or should have known the reason for cancellation, so the right of cancellation was extinguished. The reason why the court of first instance claimed that Yan Fang's claim to terminate the share transfer agreement had exceeded the limitation of action was improper, and our court corrected it. However, it is correct for the court of first instance to apply Article 55 of the Contract Law.
Case 15: The case concerning the dispute between Tian Degang and Wang Rongping on equity transfer [(20 14) Bin Shang Zi Chu No.604] heard by Bincheng District People's Court of Binzhou City held that "the defendant Wang Rongping signed an equity transfer agreement with the third party Yang Xiaozhi on February 5, 20 13. Combined with the signature of the plaintiff Tian Degang on the resolution of the shareholders' meeting held by Binzhou Magnesium Oxide Real Estate Co., Ltd. on February 6, 20 13, it can be concluded that the defendant Wang Rongping transferred the equity to the third party Yang Xiaozhi, and the plaintiff Tian Degang gave up the preemptive right; In addition, the plaintiff Tian Degang should have known or should have known that the defendant Wang Rongping transferred his equity to a third person Yang Xiaozhi on February 6, 20 14, and the plaintiff Tian Degang applied to our court to exercise the cancellation right on August 27, 20 14, and the cancellation right was extinguished after a predetermined period. Therefore, the court did not support the plaintiff's claim. "
4. Shareholders' request for the company to buy back shares shall be made within 90 days from the date of the resolution of the shareholders' meeting, otherwise the court will dismiss the lawsuit.
Case 16: dispute between Zhu and Jiangsu Huatian Chiyu Building Decoration Engineering Co., Ltd. [(20 15) Heshangchuzi No.0049] Huai 'an Qinghe District People's Court held that "Zhu voted against the resolution of the shareholders' meeting, so Zhu did not reach an agreement with Huatian Company on the acquisition of shares within 60 days from the date of the resolution of the shareholders' meeting. In our court's opinion, Zhu sued our court on 2015 65438+1kloc-0/6, which has exceeded the time limit of 90 days from the date of the resolution of the shareholders' meeting and does not meet the conditions for the people's court to accept civil cases, so the prosecution should be dismissed. "
Case 17: Dispute between Tang and Shanghai Horticultural Engineering Co., Ltd. [(20 15) Qing Min ZiNo. 1873] Shanghai Qingpu District People's Court held that "according to the Company Law, when the business term stipulated in the Articles of Association expires or other dissolution reasons stipulated in the Articles of Association occur, the shareholders will pass a resolution, and the shareholders will pass it by themselves. The defendant passed the resolution of the shareholders' meeting on June 4, 20 15, and decided to extend the business term of the company. The plaintiff objected to this and filed a lawsuit in this case within 90 days. Therefore, the plaintiff claims that the defendant should purchase the defendant's shares held by him, which is in compliance with the law. "
CaseNo. 18 heard by Changzhou Intermediate People's Court: the dispute between Li Hongjun and Changzhou Chuanglian Daily Supplies Co., Ltd. [(20 14) Chang Shang Zhong ZiNo. 133] held that "although Li Hongjun provided a copy of the resolution of the shareholders' meeting on April 28th, 201year, When Li Hongjun filed a complaint with the court on July 25th, 20 1 1, requesting Chuanglian Company to buy back its equity, the 13th shareholders' meeting resolution of Chuanglian Company on extending the operating period of the company was formed and passed, and Li Hongjun voted against the resolution. Li Hongjun sued Chuanglian Company for repurchasing shares, which met the conditions stipulated by law, that is, shareholders voted against it and prosecuted within 90 days. "
Case 19: Ye and Luzhou Real Estate Co., Ltd., heard by the Jiangyang District People's Court of Luzhou City, claimed that Article 74 of the Company Law of People's Republic of China (PRC) stipulates that the time limit for shareholders to request the company to purchase its shares at a reasonable price is "if the shareholders and the company fail to reach an equity purchase agreement within 60 days from the date of adoption of the resolution of the shareholders' meeting, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the shareholders' meeting", that is, the plaintiff must bring a lawsuit to the people's court. There is no corresponding resolution of the shareholders' meeting in this case, and the time for the plaintiff to file a lawsuit is not within the time limit stipulated in the Company Law, so our court does not support the plaintiff's claim.