[introduction to the lawyer of this case] Wu Jianping, senior partner of Liaoning Tongfang law firm. It has handled hundreds of civil and commercial cases and various civil, commercial and non litigation legal affairs with high legal professional quality, and has been accepted by Hunnan District People's government, Beiche Construction Engineering Co., Ltd., MCC Traffic Engineering Technology Co., Ltd., MCC Northeast company, Shenyang quanyun Investment Management Co., Ltd., Shenyang Wulihe Investment Management Co., Ltd., Shenyang DARUI Investment Management Co., Ltd., Shenyang Information Industry Venture Capital Co., Ltd Shenyang Biomedical Industry Venture Capital Co., Ltd., Hunnan branch of Shenyang planning and Land Resources Bureau, Hunnan District State owned assets company, Liaoning corps of China building materials industry, Shenyang Modern Transportation Co., Ltd., Shenyang tram operation Co., Ltd., Shenyang Wanrun New Town Investment Management Co., Ltd. and other 18 governments, enterprises and institutions are engaged as perennial legal advisers. During his practice, he won the titles of "excellent lawyer of Shenyang City" and "civilized lawyer of Shenyang City".
[key points of adjudication] if the investor and the original shareholders of the target company sign a gambling agreement based on the true intention, which does not violate relevant laws and regulations, the agreement is legal and effective.
If the original shareholder of the company dies after signing the gambling agreement, all his contractual rights, i.e. equity, shall be inherited by his legal successor. If there is no special agreement on equity inheritance in the articles of association and the gambling agreement, the legal successor shall enjoy the rights and assume the obligations if the legal successor does not give up the inherited equity. According to the principle of consistent rights and obligations, he shall perform the corresponding contractual obligations and assume the corresponding responsibilities.
[basic case] on December 3, 2015, Shenyang Information Industry Venture Capital Co., Ltd. (hereinafter referred to as "Shenyang venture capital company") made equity investment to Shenyang weiding robot Co., Ltd. (hereinafter referred to as "weiding company"), and signed the investment cooperation agreement with the original shareholders Zhou an, Hou Jingwei, Cao Junbiao, Li Ning and weiding company. The agreement agreed that: 1. The newly increased capital of weiding company was 750000 yuan, Shenchuang investment company subscribed for the newly increased registered capital of weiding company of 750000 yuan at 16.75 million yuan, with a price of 22.33 yuan per share; 2. According to Article 4 of the agreement, Zhou an, Hou Jingwei, Cao Junbiao, Li Ning and weiding company jointly promise that the operating target of weiding company in 2016 is to achieve the net profit after tax of 7.44 million yuan. If one target is not reached, the difference will be made up by Zhou an, Hou Jingwei, Cao Junbiao and Li Ning to weiding company within 180 days from the date of receiving the compensation notice from shenchuang investment company. After the investment cooperation agreement came into effect, shenchuang investment company paid investment funds to weiding company and became a shareholder of weiding company through capital increase.
In February 2017, zhongzhun Certified Public Accountants (special general partnership) audited the operation and financial situation of weiding company in 2016. The actual net profit after tax of weiding company in 2016 was 1.2675 million yuan, which failed to meet the 2016 business objectives promised in the investment cooperation agreement. According to the investment cooperation agreement, Zhou an, Hou Jingwei, Cao Junbiao and Li Ning shall make up the aforesaid difference of 6.1725 million yuan to weiding company. As the original shareholder Li Ning died on December 4, 2015, Li Zhongliang, Wu Shujuan and Zheng Lu, as the legal successors of Li Ning, were confirmed as shareholders of weiding company in (2016) Liao 0102 min Chu No. 7282 and the proportion of equity inherited by each successor was determined. It was confirmed that Li Zhongliang held 3.3% of the shares of weiding company, Wu Shujuan held 3.3% of the shares of weiding company, and Zheng Lu held 13.4% of the shares of weiding company. The above equity confirmation items have been registered with the industrial and commercial administration for change.
Since Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu, the shareholders of weiding company, failed to fulfill the obligation to make up the difference as agreed in the investment cooperation agreement, shenchuang investment company and shenchuang investment company sued the above-mentioned shareholders to the court to require them to fulfill the obligation to make up the difference. Lawyers Wu Jianping and Tang Ning accepted the entrustment of shenchuang investment company to participate in the litigation as litigation agents.
[judgment result] judgment result of the first instance: the people's Court of Huanggu District of Shenyang made the civil judgment (2018) Liao 0105 min Chu No. 3286, and the judgment is as follows:
1、 The defendants Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu shall, within 15 days from the date of the legal effect of this judgment, jointly make up to the third party Shenyang weiding robot Co., Ltd. the difference of net profit after tax in 2016 of 6172463.54 yuan (the defendants Li Zhongliang, Wu Shujuan and Zheng Lu shall bear the responsibility within the scope of inheriting the inheritance of the decedent Li Ning);
2、 The defendants Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan Zheng Lu shall jointly pay the overdue interest of 6172463.54 yuan (calculated according to the loan interest rate of the people's Bank of China for the same period from February 13, 2018 to the date of actual payment) to the third party Shenyang weiding robot Co., Ltd. for failing to make up the difference in net profit after tax in 2016 within 15 days from the date of legal effect of this judgment (the defendants Li Zhongliang, Wu Shujuan and Zheng Lu shall bear the responsibility within the scope of inheriting the inheritance of the decedent Li Ning);
If the debtor fails to perform the obligation to pay money within the period specified in this judgment, it shall pay double the debt interest during the period of delayed performance in accordance with Article 253 of the Civil Procedure Law of the people's Republic of China.
3、 Reject other claims of the plaintiff and the defendant.
Judgment result of second instance:
After the judgment of the first instance was made, Li Zhongliang, Wu Shujuan and Zheng Lu appealed against the judgment to the Shenyang intermediate people's court. After the trial of the court of second instance, the court made a judgment: the appeal was rejected and the original judgment was upheld.
[reason for adjudication] the focus of the dispute in this case is whether the defendants Li Zhongliang, Wu Shujuan and Zheng Lu should inherit the obligations promised by the shareholder Li Ning in the investment agreement, that is, whether the three persons and the original shareholders Zhou an, Cao Junbiao and Hou Jingwei of weiding company should jointly make up the operating balance and corresponding interest of the third party weiding company in 2016.
From the perspective of the effectiveness of the investment cooperation agreement, the agreement is the true intention of the parties and does not violate relevant laws and regulations. The agreement is legal and effective. As the original shareholder of weiding company, Li Ning is a party to the investment cooperation agreement and shall be bound by the agreement. After his death, all contractual rights, that is, the equity, shall be inherited by his legal successor. There is no special agreement between the two parties when inheriting the equity. Therefore, his legal successor shall enjoy the rights and bear the obligations. According to the principle of consistent rights and obligations, he shall perform the corresponding contractual obligations, that is, the responsibility of making up the company's profit difference.
On the issue that Shen Chuang investment company requires Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu to pay the compensation and interest for the difference between the operating objectives in 2016. According to the investment cooperation agreement, the original shareholders shall make up to the target company within 180 days from the date of receiving the compensation notice from the investor. On August 14, 2017, shenchuang investment company made a notice on requiring weiding company to compensate the outstanding difference of 2016 net profit index, and sent it to Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu, The notice on convening the first shareholders' meeting of weiding robot Co., Ltd. in 2017 issued by the third party weiding company on August 25, 2017 also reflected the notice issued by Shen Chuang Investment Co., Ltd. in the agenda of the meeting. Therefore, it can be concluded that Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu have all received the notice, but none of them has made up the difference as agreed and shall be liable for breach of contract. According to the audit, the after tax net profit of the third party weiding company in 2016 was 1267536.46 yuan, and the difference from the operating target was 6172463.54 yuan. Now, Shen venture capital company claims that Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu should make up the above difference to the third party weiding company and pay the overdue interest from February 13, 2018 to the date of actual payment at the loan interest rate of the people's Bank of China for the same period, which complies with the legal provisions.
On the issue that Zhou an, Hou Jingwei and Cao Junbiao proposed to make up the difference and pay interest to the third party weiding company according to the upper limit of the original shareholding ratio. According to the investment cooperation agreement, if the target company fails to achieve the operating target of RMB 7.44 million after tax net profit in 2016, the investor has the right to require the original shareholders to compensate the target company in cash. The compensation method is that the original shareholders make up the difference between the operating target in 2016 and the net profit achieved in 2016 to the target company. In this agreement, Zhou an, Hou Jingwei and Cao Junbiao, as original shareholders, jointly made a commitment to make up the difference in profits, but there was no specific agreement on their respective shares. Therefore, the claim of Zhou an, Hou Jingwei and Cao Junbiao that they should not bear joint and several liability is not supported.
[relevant laws] Article 8 of the contract law of the people's Republic of China: a legally established contract is legally binding on the parties. The parties shall perform their obligations in accordance with the contract, and may not alter or terminate the contract without authorization. A legally established contract shall be protected by law. Article 60 the parties shall fully perform their obligations in accordance with the contract. Article 107 If a party fails to perform its contractual obligations or fails to perform its obligations in accordance with the contract, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Article 113 where a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, thereby causing losses to the other party, the amount of compensation for losses shall be equivalent to the losses caused by the breach of contract, including the benefits that may be obtained after the performance of the contract, but shall not exceed the possible losses caused by the breach of contract that the breaching party foresaw or should have foreseen when the contract was concluded. Article 33 The Inheritance Law of the people's Republic of China stipulates that the inheritance of an estate shall pay off the taxes and debts that the decedent shall pay according to law, and the taxes and debts paid shall be limited to the actual value of his estate. This restriction does not apply to the part exceeding the actual value of the estate, which the heir voluntarily repays. If a successor relinquishes his inheritance, he may not be liable for paying the taxes and debts that the decedent shall pay according to law.
[lawyer's opinion] the gambling agreement means that in order to avoid investment risks, the investor signs an agreement with the target company or the company's shareholders. When the target company fails to achieve certain performance or meet certain requirements, the original shareholders of the target company shall compensate the investor or transfer a certain proportion of the company's shares at a certain price. In this case, the investment cooperation agreement signed by shenchuang investment company and weiding company and its original shareholders Zhou an, Hou Jingwei, Cao Junbiao and Li Ning is a typical gambling agreement.
In this case, the investment cooperation agreement does not violate the mandatory provisions of laws and regulations. The agreement was signed by Li Ning himself and passed by the shareholders' meeting before the agreement was signed. Although Zheng Lu, the defendant in the first instance of this case, is the spouse of Li Ning, according to the relevant provisions of the company law, the increase or decrease of the registered capital of the company shall be decided by the shareholders of the company, excluding the party not registered as a shareholder in the joint shareholding of the husband and wife. The investment cooperation agreement is legal and effective.
In this case, Zheng Lu, Li Zhongliang and Wu Shujuan bear the problem of making up the profit difference. The shareholder qualification of Li Ning, the former shareholder of weiding company, has been inherited by Zheng Lu, Li Zhongliang and Wu Shujuan. The three persons enjoy the rights of shareholders. Moreover, due to the investment of Shen venture capital, the value of the three persons' shares has far exceeded the capital contribution of Li Ning. Based on this, Zheng Lu, Li Zhongliang and Wu Shujuan should bear the obligations under the equity ownership, and of course should bear the responsibility of compensation for business performance. In addition, based on the signing of the investment agreement, Li Ning has the obligation to compensate weiding company when the net profit fails to reach the operating target. The agreement was signed before Li Ning's death. In 2016, weiding company's profit did not reach the operating target, which triggered the performance compensation liability agreed under the agreement. Therefore, although the compensation liability was determined after Li Ning's death, since the agreement was signed when Li Ning was alive, it was only determined after Li Ning's death because the trigger condition was reversed in 2016, so the performance compensation liability that Li Ning should bear should also belong to the debt payable by Li Ning.
[key points of adjudication] if the investor and the original shareholders of the target company sign a gambling agreement based on the true intention, which does not violate relevant laws and regulations, the agreement is legal and effective.
If the original shareholder of the company dies after signing the gambling agreement, all his contractual rights, i.e. equity, shall be inherited by his legal successor. If there is no special agreement on equity inheritance in the articles of association and the gambling agreement, the legal successor shall enjoy the rights and assume the obligations if the legal successor does not give up the inherited equity. According to the principle of consistent rights and obligations, he shall perform the corresponding contractual obligations and assume the corresponding responsibilities.
[basic case] on December 3, 2015, Shenyang Information Industry Venture Capital Co., Ltd. (hereinafter referred to as "Shenyang venture capital company") made equity investment to Shenyang weiding robot Co., Ltd. (hereinafter referred to as "weiding company"), and signed the investment cooperation agreement with the original shareholders Zhou an, Hou Jingwei, Cao Junbiao, Li Ning and weiding company. The agreement agreed that: 1. The newly increased capital of weiding company was 750000 yuan, Shenchuang investment company subscribed for the newly increased registered capital of weiding company of 750000 yuan at 16.75 million yuan, with a price of 22.33 yuan per share; 2. According to Article 4 of the agreement, Zhou an, Hou Jingwei, Cao Junbiao, Li Ning and weiding company jointly promise that the operating target of weiding company in 2016 is to achieve the net profit after tax of 7.44 million yuan. If one target is not reached, the difference will be made up by Zhou an, Hou Jingwei, Cao Junbiao and Li Ning to weiding company within 180 days from the date of receiving the compensation notice from shenchuang investment company. After the investment cooperation agreement came into effect, shenchuang investment company paid investment funds to weiding company and became a shareholder of weiding company through capital increase.
In February 2017, zhongzhun Certified Public Accountants (special general partnership) audited the operation and financial situation of weiding company in 2016. The actual net profit after tax of weiding company in 2016 was 1.2675 million yuan, which failed to meet the 2016 business objectives promised in the investment cooperation agreement. According to the investment cooperation agreement, Zhou an, Hou Jingwei, Cao Junbiao and Li Ning shall make up the aforesaid difference of 6.1725 million yuan to weiding company. As the original shareholder Li Ning died on December 4, 2015, Li Zhongliang, Wu Shujuan and Zheng Lu, as the legal successors of Li Ning, were confirmed as shareholders of weiding company in (2016) Liao 0102 min Chu No. 7282 and the proportion of equity inherited by each successor was determined. It was confirmed that Li Zhongliang held 3.3% of the shares of weiding company, Wu Shujuan held 3.3% of the shares of weiding company, and Zheng Lu held 13.4% of the shares of weiding company. The above equity confirmation items have been registered with the industrial and commercial administration for change.
Since Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu, the shareholders of weiding company, failed to fulfill the obligation to make up the difference as agreed in the investment cooperation agreement, shenchuang investment company and shenchuang investment company sued the above-mentioned shareholders to the court to require them to fulfill the obligation to make up the difference. Lawyers Wu Jianping and Tang Ning accepted the entrustment of shenchuang investment company to participate in the litigation as litigation agents.
[judgment result] judgment result of the first instance: the people's Court of Huanggu District of Shenyang made the civil judgment (2018) Liao 0105 min Chu No. 3286, and the judgment is as follows:
1、 The defendants Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu shall, within 15 days from the date of the legal effect of this judgment, jointly make up to the third party Shenyang weiding robot Co., Ltd. the difference of net profit after tax in 2016 of 6172463.54 yuan (the defendants Li Zhongliang, Wu Shujuan and Zheng Lu shall bear the responsibility within the scope of inheriting the inheritance of the decedent Li Ning);
2、 The defendants Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan Zheng Lu shall jointly pay the overdue interest of 6172463.54 yuan (calculated according to the loan interest rate of the people's Bank of China for the same period from February 13, 2018 to the date of actual payment) to the third party Shenyang weiding robot Co., Ltd. for failing to make up the difference in net profit after tax in 2016 within 15 days from the date of legal effect of this judgment (the defendants Li Zhongliang, Wu Shujuan and Zheng Lu shall bear the responsibility within the scope of inheriting the inheritance of the decedent Li Ning);
If the debtor fails to perform the obligation to pay money within the period specified in this judgment, it shall pay double the debt interest during the period of delayed performance in accordance with Article 253 of the Civil Procedure Law of the people's Republic of China.
3、 Reject other claims of the plaintiff and the defendant.
Judgment result of second instance:
After the judgment of the first instance was made, Li Zhongliang, Wu Shujuan and Zheng Lu appealed against the judgment to the Shenyang intermediate people's court. After the trial of the court of second instance, the court made a judgment: the appeal was rejected and the original judgment was upheld.
[reason for adjudication] the focus of the dispute in this case is whether the defendants Li Zhongliang, Wu Shujuan and Zheng Lu should inherit the obligations promised by the shareholder Li Ning in the investment agreement, that is, whether the three persons and the original shareholders Zhou an, Cao Junbiao and Hou Jingwei of weiding company should jointly make up the operating balance and corresponding interest of the third party weiding company in 2016.
From the perspective of the effectiveness of the investment cooperation agreement, the agreement is the true intention of the parties and does not violate relevant laws and regulations. The agreement is legal and effective. As the original shareholder of weiding company, Li Ning is a party to the investment cooperation agreement and shall be bound by the agreement. After his death, all contractual rights, that is, the equity, shall be inherited by his legal successor. There is no special agreement between the two parties when inheriting the equity. Therefore, his legal successor shall enjoy the rights and bear the obligations. According to the principle of consistent rights and obligations, he shall perform the corresponding contractual obligations, that is, the responsibility of making up the company's profit difference.
On the issue that Shen Chuang investment company requires Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu to pay the compensation and interest for the difference between the operating objectives in 2016. According to the investment cooperation agreement, the original shareholders shall make up to the target company within 180 days from the date of receiving the compensation notice from the investor. On August 14, 2017, shenchuang investment company made a notice on requiring weiding company to compensate the outstanding difference of 2016 net profit index, and sent it to Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu, The notice on convening the first shareholders' meeting of weiding robot Co., Ltd. in 2017 issued by the third party weiding company on August 25, 2017 also reflected the notice issued by Shen Chuang Investment Co., Ltd. in the agenda of the meeting. Therefore, it can be concluded that Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu have all received the notice, but none of them has made up the difference as agreed and shall be liable for breach of contract. According to the audit, the after tax net profit of the third party weiding company in 2016 was 1267536.46 yuan, and the difference from the operating target was 6172463.54 yuan. Now, Shen venture capital company claims that Zhou an, Hou Jingwei, Cao Junbiao, Li Zhongliang, Wu Shujuan and Zheng Lu should make up the above difference to the third party weiding company and pay the overdue interest from February 13, 2018 to the date of actual payment at the loan interest rate of the people's Bank of China for the same period, which complies with the legal provisions.
On the issue that Zhou an, Hou Jingwei and Cao Junbiao proposed to make up the difference and pay interest to the third party weiding company according to the upper limit of the original shareholding ratio. According to the investment cooperation agreement, if the target company fails to achieve the operating target of RMB 7.44 million after tax net profit in 2016, the investor has the right to require the original shareholders to compensate the target company in cash. The compensation method is that the original shareholders make up the difference between the operating target in 2016 and the net profit achieved in 2016 to the target company. In this agreement, Zhou an, Hou Jingwei and Cao Junbiao, as original shareholders, jointly made a commitment to make up the difference in profits, but there was no specific agreement on their respective shares. Therefore, the claim of Zhou an, Hou Jingwei and Cao Junbiao that they should not bear joint and several liability is not supported.
[relevant laws] Article 8 of the contract law of the people's Republic of China: a legally established contract is legally binding on the parties. The parties shall perform their obligations in accordance with the contract, and may not alter or terminate the contract without authorization. A legally established contract shall be protected by law. Article 60 the parties shall fully perform their obligations in accordance with the contract. Article 107 If a party fails to perform its contractual obligations or fails to perform its obligations in accordance with the contract, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Article 113 where a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, thereby causing losses to the other party, the amount of compensation for losses shall be equivalent to the losses caused by the breach of contract, including the benefits that may be obtained after the performance of the contract, but shall not exceed the possible losses caused by the breach of contract that the breaching party foresaw or should have foreseen when the contract was concluded. Article 33 The Inheritance Law of the people's Republic of China stipulates that the inheritance of an estate shall pay off the taxes and debts that the decedent shall pay according to law, and the taxes and debts paid shall be limited to the actual value of his estate. This restriction does not apply to the part exceeding the actual value of the estate, which the heir voluntarily repays. If a successor relinquishes his inheritance, he may not be liable for paying the taxes and debts that the decedent shall pay according to law.
[lawyer's opinion] the gambling agreement means that in order to avoid investment risks, the investor signs an agreement with the target company or the company's shareholders. When the target company fails to achieve certain performance or meet certain requirements, the original shareholders of the target company shall compensate the investor or transfer a certain proportion of the company's shares at a certain price. In this case, the investment cooperation agreement signed by shenchuang investment company and weiding company and its original shareholders Zhou an, Hou Jingwei, Cao Junbiao and Li Ning is a typical gambling agreement.
In this case, the investment cooperation agreement does not violate the mandatory provisions of laws and regulations. The agreement was signed by Li Ning himself and passed by the shareholders' meeting before the agreement was signed. Although Zheng Lu, the defendant in the first instance of this case, is the spouse of Li Ning, according to the relevant provisions of the company law, the increase or decrease of the registered capital of the company shall be decided by the shareholders of the company, excluding the party not registered as a shareholder in the joint shareholding of the husband and wife. The investment cooperation agreement is legal and effective.
In this case, Zheng Lu, Li Zhongliang and Wu Shujuan bear the problem of making up the profit difference. The shareholder qualification of Li Ning, the former shareholder of weiding company, has been inherited by Zheng Lu, Li Zhongliang and Wu Shujuan. The three persons enjoy the rights of shareholders. Moreover, due to the investment of Shen venture capital, the value of the three persons' shares has far exceeded the capital contribution of Li Ning. Based on this, Zheng Lu, Li Zhongliang and Wu Shujuan should bear the obligations under the equity ownership, and of course should bear the responsibility of compensation for business performance. In addition, based on the signing of the investment agreement, Li Ning has the obligation to compensate weiding company when the net profit fails to reach the operating target. The agreement was signed before Li Ning's death. In 2016, weiding company's profit did not reach the operating target, which triggered the performance compensation liability agreed under the agreement. Therefore, although the compensation liability was determined after Li Ning's death, since the agreement was signed when Li Ning was alive, it was only determined after Li Ning's death because the trigger condition was reversed in 2016, so the performance compensation liability that Li Ning should bear should also belong to the debt payable by Li Ning.
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