2. If you were registered as a shareholder when the company was established at that time, according to the publicity effect of industrial and commercial registration, you enjoyed 25% shareholder rights.
You'd better consult a lawyer at that time. Lawyers know how to write. In order to protect your legitimate rights and interests, you must hire a lawyer.
Wish you success!
Let me show you another one.
Technology shareholding refers to the behavior of technology holders (or technology investors) to invest in the company with technological achievements as intangible assets. After the technological achievements become shares, the technical investors obtain the status of shareholders, and the corresponding property rights of technological achievements are transferred to the company for enjoyment. With the promulgation of the Company Law of People's Republic of China (PRC) (hereinafter referred to as the Company Law) and the Provisions of the State Science and Technology Commission on Several Issues Concerning the Shareholding of High-tech Achievements (hereinafter referred to as the Provisions on Several Issues), it objectively provides a good premise for the value of technological achievements, which is conducive to improving the enthusiasm of technology investors to share shares and effectively mobilizing them to actively realize the transformation of achievements. However, technological achievements are different from monetary investment or physical investment, because technological achievements are not objective objects, and it is difficult to find their absolute true value. Overvaluation or undervaluation will damage the interests of investors and lead to various disputes.
First, the complete right to participate in technological achievements
The Provisions on Several Issues stipulates that if a high-tech achievement is used as the capital contribution, the investor of the achievement shall agree with other investors on the scope of the technology reservation right and the liability for breach of contract. It can be seen that the investors of technological achievements do not necessarily take the ownership of the achievements as shares, that is, they can still retain some rights. Some people think that this is inconsistent with the concept of property independence in company law. According to the basic principles of the company system, the company is liable for its debts with all its property. Its prerequisite is that the company must have independent property rights, and some functions are not independent property rights, so they cannot be used as a form of capital contribution. However, the author believes that it is scientific and reasonable to allow technology to become a shareholder.
First of all, as an intangible property, technological achievements can be used by different people at the same time, or they may be practiced in different regions at the same time, and there is no tangible control over possession and loss. Tangible property can only be possessed or dominated by one subject at the same time. Therefore, the transfer or right license of tangible things can only be owned by one owner, and it is impossible to shop with more goods. The intangible characteristics of technological achievements determine that its dynamic components are independent to some extent. As long as technological achievements exist, its various powers can exist independently, be possessed and dominated. In that case, why not take a slice of the technology?
Second, capital is the value that can bring surplus value, and once a part of the power of technological achievements interacts with money and objects, it can bring more products or more added value to investors. It can be seen that some capabilities of technological achievements also have the property of capital, so they can also be the content of capital contribution.
Third, if a certain technological achievement is partially invested, the corresponding rights and obligations of the technology investor can be stipulated in the contract. Our country's law can draw up a standard contract on the rights and obligations between the technology investor and other investors, and the technology investor must undertake the obligations within the scope stipulated or agreed by law according to the technical ability of his investment, and enjoy the corresponding rights. Other investors can also control the technology according to the contract.
Fourth, the price of ownership transfer of technological achievements is much higher than the transfer of rights such as the right to use, and in many cases, investors who want to acquire advanced technologies just want to acquire the right to use related technologies. For example, it is uneconomical for other investors to invest in ownership stocks. Therefore, it is also beneficial to allow other investors to participate in part of the shares.
Second, the price of relevant technology investment.
As a non-monetary investment, the most important thing is to determine the value of technological achievements. Determining the value of technology scientifically, reasonably, truly and fairly is conducive to technology becoming the real capital and reasonable shares of enterprises. In practice, there are three main pricing methods of technological achievements: evaluation pricing, negotiation pricing and the combination of the two pricing methods. Technology evaluation pricing refers to the pricing method of professional evaluation institutions to determine the value of investors' technological achievements, that is, the process of quantifying technological value. Negotiation pricing method is a way for investors to reach an agreement on the pricing amount of technology without evaluation. This pricing method is that investors determine the value of technology through negotiation on the basis of good faith.
(1) Evaluation and pricing methods
The technical value determined by the evaluation and pricing method has strong legal effect, and its value is determined in the evaluation and pricing document of technical achievements, and the investor shall not change it at will, effectively preventing various disputes. At the same time, this pricing method makes up for the parties' lack of understanding of the value of technological achievements, which may lead to too high or too low price determination, thus damaging the interests of other investors and the company's capital system. China's Company Law and many local laws and regulations such as Xiamen and Sichuan clearly stipulate that technology investment should be evaluated, especially when it involves state-owned assets. In view of the possibility of the loss of state-owned assets and the seriousness of its consequences, in order to prevent investors from underestimating state-owned assets in practice and harming national interests, the law stipulates that evaluation must be adopted. However, it is unrealistic to insist on evaluation and pricing in practice when state-owned assets are not involved, especially at present, China's technology evaluation and pricing is not standardized, and many problems need to be further solved.
First, China has not yet set up a special technical evaluation institution, and the relevant evaluators also lack a certain technical level. Asset appraisal institutions refer to asset appraisal companies, accounting firms, auditing firms, financial consulting companies and temporary appraisal institutions with the qualification certificate of state-owned assets appraisal approved by the administrative department of state-owned assets management. It can be seen from this provision that China has not set up a special technical evaluation institution, and the evaluation of technology can only be undertaken by the institution that evaluates the real thing. However, the appraisers of these appraisal institutions have a low level of appraisal, and most of them have no relevant technical background, lack of relevant knowledge in technology, economy and law, and lack of understanding of technical content, so it is impossible to evaluate technology completely and objectively. In general, they can only use the evaluation method of tangible assets to evaluate technical assets, so their evaluation results are not completely reliable. In contrast, many foreign countries have defined the subject of technology pricing. For example, Brazilian law stipulates that technology investment must be approved by the Foreign Investment Bureau and valued by the central bank; Chile stipulates that such matters should be managed by the foreign investment management Committee of that country; Polish law stipulates that the third party can only be an expert in the field of industrial property rights.
Second, the evaluation organization has not yet established a reasonable technical evaluation standard, and its procedures are also lack of rigor in the specific operation process. Relevant personnel only make a general evaluation of the technology according to the usual practice. A series of related contents, such as the evaluation methods, selected evaluation parameters and evaluation standards, lack certain legal basis, and the evaluator is subjective, which greatly affects the correct evaluation of the technology and may harm the interests of technology investors or other investors in some cases.
Third, the technical evaluation did not fully consider the capital contribution right and the role of the company. As intangible assets, technological achievements can be the ownership of technological achievements or a part of their capabilities. Therefore, in the process of technical evaluation, it is necessary to determine the technical value according to its capital contribution right, so as to determine its proportion in the company's property. In addition, at present, when evaluating the technical value, technical appraisers often only start from the technology itself, without considering the role of technology in the company, which makes the evaluation of technical value unrealistic.
(2) Negotiation pricing method
Negotiated pricing method is that investors determine the value of technology through consultation. At present, this pricing method has been reflected in many local laws and regulations. In this way, the complicated pricing procedure of evaluation and pricing is avoided, and there is no need to set up a special technical evaluation institution and determine a special technical evaluation standard. The technical value can be determined through consultation. Its flexibility lies not only in overcoming the difficulties of evaluation and pricing, but also in fully realizing the rational flow and optimal allocation of resources through the market. Moreover, the negotiation pricing method is the embodiment of the will of the parties. It is of great significance to decide the fate of one's own property through the investor's own punishment, which not only helps the company to introduce advanced technology to the maximum extent, but also reduces the cost of technology investment. At the same time, the technical value determined by negotiation pricing can be evaluated according to the purpose of the enterprise and the "possibility of use" of each investor's technology. Only in this way can the qualitative category, namely the scope, of technologies such as "necessity", "usefulness" and "uselessness" be reduced to the quantitative category, namely the amount of assessment, and this value category can become an appropriate disposal for both companies and investors.
However, the legal effect of the technical value determined by the negotiation pricing method is lower than the evaluation pricing, and there may be cases where investors negotiate the amount of capital contribution at will, resulting in false capital contribution, and technical investors take advantage of the weakness of other investors who are not familiar with technology to commit technical fraud.
(3) Capital verification
Article 26 of China's Company Law stipulates that all shareholders' capital contribution must be verified by a statutory capital verification institution and issued with a certificate. It can be seen that capital verification by a capital verification institution is a necessary procedure for the establishment of a company. Capital verification refers to the verification of the authenticity and legality of the paid-in capital (share capital) and related assets and liabilities of the audited entity by certified public accountants in accordance with the requirements of China Independent Auditing Practice Announcement No.65438 +0- Capital Verification. Its main purpose is to verify whether the registered capital of the audited entity meets the requirements of laws and regulations, and whether all investors have paid their contributions in full according to the proportion and mode of contribution stipulated in the contract agreement and articles of association. It can be seen that although the contents of capital verification and evaluation are different, capital verification is to verify the legitimacy and authenticity of the capital of the verified unit; Evaluation is to evaluate and estimate the true value of assets. However, there are many similarities between the two in specific operating procedures. 1. Both of them are entrusted by investors to the designated departments of the state to carry out specific affairs, and the designated departments must act in strict accordance with the law. 2. They should all check and evaluate assets, and finally they should make reports as supporting documents. 3. The purpose of both is to correctly reflect the true value of assets. It can be seen that blindly insisting on evaluation and pricing will increase the cost of company establishment because of repeated capital verification and evaluation procedures.
(4) Coordination of evaluation, consultation and capital verification.
Based on the above analysis, the author believes that, in essence, the pricing method of fixed technological achievements is not the purpose of legislation, but only a means to discover and clarify the value of technological achievements. For example, blindly strengthening the role of means without respecting various ways to discover the value of technological achievements not only hinders the investment of technological achievements, but also increases the cost of establishing a company. In China's Company Law, there is still a capital verification link to prevent false pricing to ensure the realization of the principle of capital enrichment. It is not appropriate to forcibly evaluate the method of determining the technical value of capital contribution, but to properly recognize the negotiation pricing method, which will not only help each investor to set up a company in a short time, but also save a lot of manpower and material resources. However, because the value of technology itself is intangible, and investors are not experts in evaluating technological achievements, they cannot well grasp the market prospect, maturity and expected income of technology. The determination of investment value of technological achievements is closely related to the company's capital enrichment system. Therefore, it should be recognized that agreement pricing should not be allowed to drift, but should have different legal effects, and should be combined with capital verification system to better play its role.
Third, the proportion control of technology investment shares.
Paragraph 2 of Article 24 of the Company Law stipulates that the amount of capital contribution with industrial property rights and non-patented technology at a fixed price shall not exceed 20% of the registered capital of a limited company, unless the state has special provisions on the adoption of high-tech achievements. The Provisions on Several Issues issued by the State Science and Technology Commission and the State Administration for Industry and Commerce 1997 stipulates that the maximum contribution of high-tech achievements can reach 35% of the registered capital. The Provisions on Promoting the Transformation of Scientific and Technological Achievements approved by the State Council General Office1April 1999 stipulates that if high-tech achievements are invested in limited companies or unincorporated enterprises, unless otherwise agreed, the evaluation value of high-tech achievements can reach 35% of the registered capital of the company or enterprise. It can be seen that Chinese laws stipulate that the contribution of general technological achievements shall not exceed 20% of the company's registered capital, and the contribution of high-tech achievements shall generally not exceed 35% of the company's registered capital. At present, in practice, many places strictly abide by the laws and regulations of China, such as Xiamen and Sichuan. However, there are also many local laws and regulations that have made breakthroughs in this ratio. For example, Article 5 of the Interim Provisions of Changzhou on the Contribution of High-tech Achievements to Shares (for Trial Implementation) stipulates that: if an investor contributes shares with high-tech achievements, the proportion of the assessed amount to the registered capital of the enterprise may exceed 20%, but shall not exceed 35%; The provincial science and technology department can reach 60%, but all shareholders need to agree. In addition, some scholars even propose to break this proportion limit, thinking that as long as the technological achievements are reasonable, no matter how much they account for. For example, after the promulgation of the Regulations on Zhongguancun Science Park, the Beijing Municipal Administration of Industry and Commerce issued a new enterprise registration management method in due course, stipulating that if a company or joint-stock cooperative enterprise is established with high-tech achievements, there is no restriction on the registered capital (gold) and equity ratio contributed by its high-tech achievements. If the investor stipulates in the articles of association that the technology price is less than 500,000 yuan, it is not necessary to make an evaluation, but only to submit a confirmation signed by all shareholders.
The author believes that China is in the primary stage of socialism and its social economy is not very developed. In addition, technological achievements are intangible assets, and it is quite difficult to price their intangibility. If they are not restricted from making any contribution, they will inevitably have great risks and affect the interests of all investors. On the other hand, technological achievements, as an intangible asset, must be combined with money and things in order to play a real role. If the proportion of technical contribution is not limited, there may be 100% technical contribution, which is impossible in real life. Therefore, it is of practical significance to limit the shareholding ratio of technological achievements.
However, with the continuous development of knowledge economy and the continuous improvement of product technology content, it is the need of the development of the times to develop high-tech, realize high-tech transformation and promote technological innovation. As an important means of high-tech transformation-technology shareholding, it is necessary for China to relax the proportion limit. On the one hand, legislation provides a way to evaluate or negotiate. If you are worried that the other party's investment is too high and there are risks, the parties can ask for evaluation and pricing to determine the price based on their own rational choices. On the other hand, in principle, as long as technology investors do not put forward harsh conditions based on technological advantages and as long as they meet the reasonable restrictions of the state on foreign technology, it should be decided by the parties themselves to effectively promote the economy. The state does not need and should not determine uniform standards to limit the will of free subjects. After all, the parties are the best judges of their own interests. If the state intervenes, it will undoubtedly limit the initiative of the main body to a certain extent and become the shackles of economic development. More importantly, as a developing country, the level of science and technology has fallen behind. If the proportion is limited, it will undoubtedly restrict the introduction of technology and is not conducive to the enthusiasm of technology investors. If the investment limit is too low, it will hinder high-tech investment. If the counterpart of the investor of technological achievements increases the investment proportion, it will constitute an indirect legislative intervention for the parties to freely form the company scale. If the parties strictly abide by the law, they will either give up the establishment of high-tech enterprises, lower the price of one party or increase the investment of the other party. The former may cause waste of assets, while the latter will harm the legitimate rights and interests of one party. Therefore, the restrictions on the proportion of technology investment should not be too low.
At the same time, the author thinks that the restriction on the proportion of technology investment is not consistent with the foreign legislative provisions. The company laws of many civil law countries clearly stipulate the proportion of cash to the company's capital, but not the proportion of intangible capital. As stipulated in France, the cash contribution of a joint stock limited company should account for more than 25% of the company's total capital; Germany stipulates that the capital of a joint stock limited company must have at least 25% cash; Italy stipulates that cash contribution is 30% of the company's capital; Switzerland and Luxembourg stipulate 20%. Because, for high-tech companies, their technological competitiveness is a symbol of corporate credit, and technological achievements are the key content of company development. Limiting the proportion of investment in technological achievements has just hindered the development of high-tech companies, but if the proportion of cash investment is required, it will not help the company transform its technology, but limit the proportion of investment in technology from the opposite side. At the same time, it is also the most powerful guarantee for creditors as cash, and it can also prevent the situation of defrauding creditors in the name of establishing a company. The author thinks that whether the proportion of the company's technological achievements should be limited must be weighed between the autonomy of the private law subject and the state's management of the economic order. The state can prevent fraud in the establishment of a company through the choice of means and the construction of legal responsibility, and it is unnecessary and should not blindly limit the proportion of technology.
Fourth, the benefits of value adjustment after technological changes.
With the rapid development of science and technology today, technological achievements often lose their own value because of economic development, scientific and technological progress or the expiration of protection period; Or on the contrary, the technological achievements of the shares have become more advanced technologies because of the emergence of related technologies or the maturity of market development or the improvement of their own technologies, thus increasing the technical value. Changes in the value of these two technologies will cause changes in the interests of all investors.
(A) the reduction or loss of technical value
When the technical value is reduced or lost, it is often solved by reducing or revoking the shares of relevant shareholders in practice. The author believes that there are many reasons for the reduction or loss of technology value, either because of market changes, or because of improper behavior of the parties, or because the investment price is too high. Therefore, we should analyze the reasons for the reduction or loss of technical value and take corresponding measures.
1. Market changes lead to lower value. After the establishment of the company, the property rights of technological achievements were transferred and the company became the owner of technical property rights. The profit and loss of the property shall be borne by the company, and the shareholders shall be liable only to the extent of their capital contribution. If the responsibility of reducing technology value is imposed on shareholders (technology investors), it will be solved by depriving shareholders of their equity, which is not only reluctant, but also obliterates the mutual independence of company property and shareholder property. At the same time, if the actual solution is analogized, the investor of consumables will disappear after the property contributed by him is consumed; After the currency contributed by the monetary investor is used for trading, its equity is also eliminated; The rights and interests of investors in land use rights are constantly changing with the appreciation or depreciation of land. This is obviously not in line with the ultimate goal of investors to set up companies. Therefore, the author believes that the reduction or loss of the value of technological achievements should be solved by whether the company is established or not. When the company was established, because all investors signed investment contracts, a specific contractual relationship was established between them. If the value of technological achievements is reduced or lost, it should be solved according to the principle of contract law, that is, either the contract is changed or the contract is terminated. After the establishment of the company, because the property right of the value of technological achievements has been owned by the company, the reduction or loss of its value should be borne by the company and should not be imposed on shareholders (technology investors).
2. The misconduct of relevant personnel leads to the reduction of technical value. If the decrease of technology value is intentionally caused by technology investors or other interested parties, and if investors maliciously disclose technology secrets, the company will lose the enjoyment of the technology, then investors should bear tort liability. As the company is the property owner of technology, it has the right to possess, use and benefit from technology, and the investor's malicious disclosure of technical secrets infringes on the company's property rights, so the relevant personnel should be investigated for their corresponding responsibilities according to the relevant provisions on the protection of trade secrets.
3. Insufficient technical value caused by insufficient investment. If the value of technological achievements is inconsistent with the value of capital contribution, the relevant shareholders must bear supplementary responsibilities. Article 28 of China's Company Law stipulates that after the establishment of a limited liability company, if it is found that the actual price of the physical objects, industrial property rights, non-patented technologies and land use rights as capital contribution is obviously lower than the amount stipulated in the company's articles of association, the capital contribution shareholders shall make up the difference, and other shareholders at the time of the establishment of the company shall be jointly and severally liable for it.
(2) the increase of technical value
There are many reasons for the increase of technical value, but there are two main reasons: good market development promotes the improvement of technical value; The improvement of the original technology increases the value and becomes a more advanced technology. In practice, the problem of increasing technology value is usually solved by increasing the shares of technology investors. However, this approach is one-sided. The author believes that the increase in the value of technological achievements should be analyzed according to the reasons for its increase.
1. The technical value increases due to market reasons. When technology is combined with money and objects, it has a broad market and can be transformed into huge economic benefits after long-term use, such as well-known trademarks in trademarks, whose functions of "identifying brand shopping" and "attracting customers" can be transformed into huge economic benefits. At this time, the company should be the direct beneficiary, because the company is the property owner of technology and has made a direct contribution to the value increase of technology. If it is solved by increasing the shares of technology investors, it will inevitably harm the interests of other investors, and will also confuse the boundary between the company's property and the shareholders' property, which will violate the concept of company property independence.
2. The increase of technical value brought by the technical improvement of relevant personnel. Technology investors, as shareholders of the company, can improve technology in accordance with the procedures and methods of capital increase in the Company Law. When others in the company improve their technology, they should be treated as post technical achievements. The company enjoys the technology and gives certain rewards to the technical improvement personnel. Of course, the investor can also sign a technology transfer contract on the basis of not violating the law, stipulating in the contract that the updated technology will be transferred to the technology transferee first, so that it can enjoy the priority right to use according to the regulations, which is conducive to safeguarding the interests of the company and maintaining the cooperative relationship between the company and shareholders.
Verb (abbreviation of verb) conclusion
Technology shareholding is a new content to meet the needs of the development of socialist market economy. With China's accession to the WTO, China's economy is gradually in line with the world economy, and it is of great practical significance to do a good job in technology shareholding. The author thinks that there can be different general special provisions for the special thing of technological achievements, so as to give full play to the role of technological achievements. In terms of capital contribution, China's laws should stipulate that technology investors are allowed to invest technological achievements in shares with part of their power; In terms of pricing method, there is not much difference between evaluation pricing and negotiation pricing when there is a capital verification link to prevent false pricing. China should relax the pricing method of technological achievements contributing to shares; In the proportion of investment, we should adapt to the needs of knowledge development and relax the restrictions on the proportion of technology investment; With regard to the protection of technology investors' equity, the law should make different provisions on the establishment of a company and the establishment of a company, and the equity and income of technology investors should not be increased or decreased because of the increase or decrease of technology achievements. Only in this way can we better introduce technology and develop scientific and technological enterprises.