[introduction of the lawyer in this case]
Yang Xingquan, Secretary of the Party committee and director of Liaoning Tongfang law firm, is a national excellent lawyer. He is currently the president of the Liaoning Provincial Lawyers Association, the president of the Liaoning Provincial Lawyers Association of the Communist Party of China, the Deputy Secretary of the Liaoning Provincial lawyers Industry Committee of the Communist Party of China, and the representative of the Liaoning Provincial People's Congress. The main business areas are domestic arbitration and litigation business, criminal business, and providing high-quality legal advisory services to more than 100 enterprises, institutions and institutions.
Yang Dawei, a practicing lawyer and consultant of Liaoning Tongfang law firm, is mainly engaged in major civil and commercial litigation and arbitration business, and has rich experience in mineral resources, construction, real estate and other industries. Lawyer Yang Dawei is hardworking and dedicated, has a strong sense of career and responsibility, and has rich working experience. He has not only the judicial trial of the court and the local legislation, but also the judicial supervision of the power organs. He is familiar with the work of various judicial organs. Since his practice, he has served as a perennial legal adviser for enterprises and institutions such as the Liaoning Provincial Corps of the Chinese people's armed police force, the provincial business environment construction bureau, and the Shenyang land reserve center, and has provided legal services for many state-owned enterprises, listed companies and private enterprises.
[key points of judgment] Article 25 of the provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III) stipulates that: "Where a nominal shareholder transfers, pledges or otherwise disposes of the equity registered in his / her name, and the actual investor requests that the disposal of the equity is invalid on the ground that he / she has actual rights to the equity, the people's court may handle the case with reference to the provisions of Article 106 of the property law. If the nominal shareholder disposes of the equity and causes losses to the actual investor, and the actual investor requests the nominal shareholder to bear the liability for compensation, the people's court shall support it. ”In this case, one of the claims of a non-ferrous metal geological exploration team is to order Gao to transfer 30% of the equity of a Mining Co., Ltd. in Dongning city to a holding group Co., Ltd. as unauthorized disposal, and a holding group Co., Ltd. does not constitute a bona fide acquisition of the 30% equity. Whether the claim can be established should be based on whether a non-ferrous metal geological exploration team is the actual investor of the 30% equity of a Mining Co., Ltd. in Dongning city, Find out whether the basic facts of the claim made by a non-ferrous metal geological exploration team are established and whether the claim made has legal basis.
[basic case] in 2005, a non-ferrous metal geological exploration team obtained the mineral resources exploration license from the Provincial Department of land and resources to conduct a general survey of the periphery of a copper mine in Dongning county. In 2006, a Mining Co., Ltd. in Zunhua city was established. Gao accounted for 70% of the equity and served as the legal representative. The registered capital was 1 million yuan.
In 2006, a non-ferrous metal geological exploration team signed a 2006 cooperation agreement with a Mining Co., Ltd. in Zunhua city. Both parties agree that the mode of cooperation is the share responsibility system; A Mining Co., Ltd. in Zunhua city invested in cash, and a non-ferrous metal geological exploration team contributed with exploration rights; A non-ferrous metal geological exploration team accounted for 30% of the equity, and a Mining Co., Ltd. in Zunhua City accounted for 70% of the equity; If the expected target is not achieved, it can be packaged and transferred, and the profits will be shared by shares.
In 2007, a non-ferrous metal geological exploration team submitted the request for instructions on the transfer of exploration rights to the Provincial Department of land and resources, and part of the exploration rights were transferred to the cooperative company, covering an area of 1.25 square kilometers. In the same year, a Mining Co., Ltd. in Dongning city was established. It was a wholly-owned enterprise of Gao, with a registered capital of 100000 yuan.
In September 2007, the Department of land and resources replied that before the transfer of the project, the exploration right should be evaluated according to law, and the transfer and change procedures can be handled only after the price is paid to the Department of land and resources according to the evaluation and filing results. In April 2008, the evaluation value of the exploration right was 7.8495 million yuan. Transfer is permitted.
In April 2008, the development management office of the Provincial Department of land and resources (the transferor) signed the contract for the transfer of exploration rights with a Mining Co., Ltd. in Dongning city (the transferee), with the price of 7.8495 million yuan paid in installments. A Mining Co., Ltd. in Dongning City paid 2.4 million yuan in the first phase, and the balance in 2010 was 5.4495 million yuan. A Mining Co., Ltd. in Dongning city obtained the exploration right license.
In May 2008, a non-ferrous metal geological exploration team signed the 2008 cooperation agreement with a Mining Co., Ltd. in Zunhua city. Both parties agreed that the equity ratio was changed to 20% of a non-ferrous metal geological exploration team and 80% of a Mining Co., Ltd. in Zunhua City; A Mining Co., Ltd. in Zunhua City paid a compensation of 6 million yuan for the early geological exploration investment of a non-ferrous metal geological exploration team. The rest is consistent with the 2006 agreement.
In February 2012, a mining company in Dongning city obtained a mining license. In the same year, Gao submitted an application to a non-ferrous metal geological exploration team that "I am willing to purchase 20% of the dry shares held in this mining right at a reasonable price". The application was not approved by a non-ferrous metal geological exploration team.
In April 2012, a listed company in Hunan signed the contract for transfer of equity of Dongning company with effective conditions with Gao. In September 2012, a listed company in Hunan issued a public announcement for the acquisition of 100% of the equity of Dongning company and issued the plan for non-public development of A-share. The estimated value of a Mining Co., Ltd. in Dongning city was 3 billion.
In January 2013, Gao signed an equity transfer agreement with a holding group Co., Ltd. On January 23, the industrial and commercial change registration was handled. In March 2013, the board of directors of a listed company in Hunan decided to terminate the non-public offering of shares.
In 2013, a non-ferrous metal geological exploration team filed a lawsuit to a provincial high court, requesting to confirm that the equity transfer agreement signed by Gao and a holding group Co., Ltd. was invalid and requesting to return to the state before the transfer.
[reason for judgment] the existing evidence can not prove that a Mining Co., Ltd. in Dongning city was established by a non-ferrous metal geological exploration team and a Mining Co., Ltd. in Zunhua city according to the cooperation agreement in 2006. The parties to the cooperation agreement are a Mining Co., Ltd. in Zunhua City and a non-ferrous metal geological exploration team, not a Mining Co., Ltd. in Dongning city. What is the relationship between a Mining Co., Ltd. in Zunhua City and a Mining Co., Ltd. in Dongning city, Whether a Mining Co., Ltd. in Dongning city is established by a non-ferrous metal geological exploration team and a Mining Co., Ltd. in Zunhua city according to the cooperation agreement signed by both parties directly affects the fact finding of this case.
In this case, a non-ferrous metal geological exploration team claimed that it could determine its investment relationship with a Mining Co., Ltd. in Dongning city according to the cooperation agreement, and held 30% of the shares. Gao claimed that the cooperation agreement did not stipulate that it should hold shares on behalf of a certain nonferrous metal geological exploration team, and the 702 team could not claim the equity of a Mining Co., Ltd. in Dongning city from Gao. The existing evidence cannot show whether a non-ferrous metal geological exploration team enjoys the rights and interests of shareholders in the company law in a Mining Co., Ltd. in Dongning City, or whether it has the right to distribute the company's profits according to the cooperation agreement.
[relevant articles] Article 106 of the property law and Article 25 of the provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III)
[lawyer's opinion] the 2006 cooperation agreement was signed by a non-ferrous metal geological exploration team and a Mining Co., Ltd. in Zunhua city. Both parties agreed to cooperate in exploration and development of a copper mine, but the agreement did not agree to establish a cooperative enterprise. In addition, the effective (2013) mscz No. 10 civil judgment of the agreement confirms that "the purpose of the 2006 cooperation agreement signed by both parties is to cooperate in the exploration and development of the copper mine, not to transfer the exploration right or establish a cooperative or joint venture company. Therefore, both parties did not evaluate the value of the exploration right as capital contribution when signing the agreement, nor did they specify the amount of cash contribution of a Mining Co., Ltd. in Zunhua city." Therefore, a Mining Co., Ltd. in Dongning city was not established by a Mining Co., Ltd. in Zunhua City and a non-ferrous metal geological exploration team to perform the 2006 cooperation agreement.
A non-ferrous metal geological exploration team did not invest the exploration right as capital into a Mining Co., Ltd. in Dongning city according to legal procedures. Article 46 of the Interim Provisions on the administration of the transfer of mining rights (gtzf [2000] No. 309) issued by the Ministry of land and resources stipulates that "the parties involved in the transfer of mining rights must sign a mining rights transfer contract according to law. According to the different transfer methods, the transfer contract can be a sales transfer contract, a joint venture transfer contract or a cooperative transfer contract". Article 5 of the administrative measures for the transfer of exploration and mining rights stipulates that "the transfer of exploration rights shall meet the following conditions:... (IV) the exploration right use fee and the exploration right price have been paid in accordance with the relevant provisions of the State..." in this case, a non-ferrous metal geological exploration team has not signed the relevant mining right transfer contract with a Mining Co., Ltd. in Dongning City, nor has it gone through the relevant examination and approval and change registration procedures for the transfer of mining rights, Moreover, a certain team of nonferrous metal geological exploration has not paid the price of exploration right. The exploration right obtained by a Mining Co., Ltd. in Dongning city is the exploration right obtained by signing the exploration right transfer contract with the mineral development management office of the Provincial Department of land and resources, and the exploration right price is 7.8495 million yuan. Therefore, the exploration right obtained by a Mining Co., Ltd. in Dongning city is not invested by a non-ferrous metal geological exploration team.
The second paragraph of Article 27 of the company law stipulates that "the non monetary property as capital contribution shall be evaluated and verified, and the property shall not be overvalued or undervalued. Where there are provisions on Evaluation and valuation in laws and administrative regulations, such provisions shall prevail." A certain nonferrous metal geological exploration team has not gone through the formalities of examination and approval for the transfer of mining rights, change registration or filing, nor has it evaluated and valued the exploration rights involved, nor has it fulfilled the mandatory provisions of the company law on the contribution of non monetary assets. It is impossible to determine the value of the assets invested by a non-ferrous metal geological exploration team, let alone the investment proportion. Since the establishment of a Mining Co., Ltd. in Dongning city in 2007, the registered capital has increased from 100000 yuan to 260 million yuan. A non-ferrous metal geological exploration team has not made any investment, and a Mining Co., Ltd. in Zunhua city has not made any investment. All the funds are invested by Gao. On the premise that the three parties have a dispute over whether a non-ferrous metal geological exploration team holds 30% of the equity of a Mining Co., Ltd. in Dongning City, there is no factual basis and legal basis for the claim of a non-ferrous metal geological exploration team.
This case has a long time span, complex circumstances, huge subject matter, tortuous first instance process, and lasted four years. The first instance decided that we lost the case. Starting from the litigant's claim and based on the facts of the case, the undertaking lawyer team reviewed whether the litigant's claim had legal basis, stripped the silk and cocoon of the case, reduced the complexity to simplicity, and made a breakthrough in the case based on the claim right. The Supreme Court adopted all the opinions of the lawyers. The ruling of this case answers the application conditions of Article 25 of the provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III), and has a good reference for the trial of such cases in the future.
Yang Xingquan, Secretary of the Party committee and director of Liaoning Tongfang law firm, is a national excellent lawyer. He is currently the president of the Liaoning Provincial Lawyers Association, the president of the Liaoning Provincial Lawyers Association of the Communist Party of China, the Deputy Secretary of the Liaoning Provincial lawyers Industry Committee of the Communist Party of China, and the representative of the Liaoning Provincial People's Congress. The main business areas are domestic arbitration and litigation business, criminal business, and providing high-quality legal advisory services to more than 100 enterprises, institutions and institutions.
Yang Dawei, a practicing lawyer and consultant of Liaoning Tongfang law firm, is mainly engaged in major civil and commercial litigation and arbitration business, and has rich experience in mineral resources, construction, real estate and other industries. Lawyer Yang Dawei is hardworking and dedicated, has a strong sense of career and responsibility, and has rich working experience. He has not only the judicial trial of the court and the local legislation, but also the judicial supervision of the power organs. He is familiar with the work of various judicial organs. Since his practice, he has served as a perennial legal adviser for enterprises and institutions such as the Liaoning Provincial Corps of the Chinese people's armed police force, the provincial business environment construction bureau, and the Shenyang land reserve center, and has provided legal services for many state-owned enterprises, listed companies and private enterprises.
[key points of judgment] Article 25 of the provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III) stipulates that: "Where a nominal shareholder transfers, pledges or otherwise disposes of the equity registered in his / her name, and the actual investor requests that the disposal of the equity is invalid on the ground that he / she has actual rights to the equity, the people's court may handle the case with reference to the provisions of Article 106 of the property law. If the nominal shareholder disposes of the equity and causes losses to the actual investor, and the actual investor requests the nominal shareholder to bear the liability for compensation, the people's court shall support it. ”In this case, one of the claims of a non-ferrous metal geological exploration team is to order Gao to transfer 30% of the equity of a Mining Co., Ltd. in Dongning city to a holding group Co., Ltd. as unauthorized disposal, and a holding group Co., Ltd. does not constitute a bona fide acquisition of the 30% equity. Whether the claim can be established should be based on whether a non-ferrous metal geological exploration team is the actual investor of the 30% equity of a Mining Co., Ltd. in Dongning city, Find out whether the basic facts of the claim made by a non-ferrous metal geological exploration team are established and whether the claim made has legal basis.
[basic case] in 2005, a non-ferrous metal geological exploration team obtained the mineral resources exploration license from the Provincial Department of land and resources to conduct a general survey of the periphery of a copper mine in Dongning county. In 2006, a Mining Co., Ltd. in Zunhua city was established. Gao accounted for 70% of the equity and served as the legal representative. The registered capital was 1 million yuan.
In 2006, a non-ferrous metal geological exploration team signed a 2006 cooperation agreement with a Mining Co., Ltd. in Zunhua city. Both parties agree that the mode of cooperation is the share responsibility system; A Mining Co., Ltd. in Zunhua city invested in cash, and a non-ferrous metal geological exploration team contributed with exploration rights; A non-ferrous metal geological exploration team accounted for 30% of the equity, and a Mining Co., Ltd. in Zunhua City accounted for 70% of the equity; If the expected target is not achieved, it can be packaged and transferred, and the profits will be shared by shares.
In 2007, a non-ferrous metal geological exploration team submitted the request for instructions on the transfer of exploration rights to the Provincial Department of land and resources, and part of the exploration rights were transferred to the cooperative company, covering an area of 1.25 square kilometers. In the same year, a Mining Co., Ltd. in Dongning city was established. It was a wholly-owned enterprise of Gao, with a registered capital of 100000 yuan.
In September 2007, the Department of land and resources replied that before the transfer of the project, the exploration right should be evaluated according to law, and the transfer and change procedures can be handled only after the price is paid to the Department of land and resources according to the evaluation and filing results. In April 2008, the evaluation value of the exploration right was 7.8495 million yuan. Transfer is permitted.
In April 2008, the development management office of the Provincial Department of land and resources (the transferor) signed the contract for the transfer of exploration rights with a Mining Co., Ltd. in Dongning city (the transferee), with the price of 7.8495 million yuan paid in installments. A Mining Co., Ltd. in Dongning City paid 2.4 million yuan in the first phase, and the balance in 2010 was 5.4495 million yuan. A Mining Co., Ltd. in Dongning city obtained the exploration right license.
In May 2008, a non-ferrous metal geological exploration team signed the 2008 cooperation agreement with a Mining Co., Ltd. in Zunhua city. Both parties agreed that the equity ratio was changed to 20% of a non-ferrous metal geological exploration team and 80% of a Mining Co., Ltd. in Zunhua City; A Mining Co., Ltd. in Zunhua City paid a compensation of 6 million yuan for the early geological exploration investment of a non-ferrous metal geological exploration team. The rest is consistent with the 2006 agreement.
In February 2012, a mining company in Dongning city obtained a mining license. In the same year, Gao submitted an application to a non-ferrous metal geological exploration team that "I am willing to purchase 20% of the dry shares held in this mining right at a reasonable price". The application was not approved by a non-ferrous metal geological exploration team.
In April 2012, a listed company in Hunan signed the contract for transfer of equity of Dongning company with effective conditions with Gao. In September 2012, a listed company in Hunan issued a public announcement for the acquisition of 100% of the equity of Dongning company and issued the plan for non-public development of A-share. The estimated value of a Mining Co., Ltd. in Dongning city was 3 billion.
In January 2013, Gao signed an equity transfer agreement with a holding group Co., Ltd. On January 23, the industrial and commercial change registration was handled. In March 2013, the board of directors of a listed company in Hunan decided to terminate the non-public offering of shares.
In 2013, a non-ferrous metal geological exploration team filed a lawsuit to a provincial high court, requesting to confirm that the equity transfer agreement signed by Gao and a holding group Co., Ltd. was invalid and requesting to return to the state before the transfer.
[reason for judgment] the existing evidence can not prove that a Mining Co., Ltd. in Dongning city was established by a non-ferrous metal geological exploration team and a Mining Co., Ltd. in Zunhua city according to the cooperation agreement in 2006. The parties to the cooperation agreement are a Mining Co., Ltd. in Zunhua City and a non-ferrous metal geological exploration team, not a Mining Co., Ltd. in Dongning city. What is the relationship between a Mining Co., Ltd. in Zunhua City and a Mining Co., Ltd. in Dongning city, Whether a Mining Co., Ltd. in Dongning city is established by a non-ferrous metal geological exploration team and a Mining Co., Ltd. in Zunhua city according to the cooperation agreement signed by both parties directly affects the fact finding of this case.
In this case, a non-ferrous metal geological exploration team claimed that it could determine its investment relationship with a Mining Co., Ltd. in Dongning city according to the cooperation agreement, and held 30% of the shares. Gao claimed that the cooperation agreement did not stipulate that it should hold shares on behalf of a certain nonferrous metal geological exploration team, and the 702 team could not claim the equity of a Mining Co., Ltd. in Dongning city from Gao. The existing evidence cannot show whether a non-ferrous metal geological exploration team enjoys the rights and interests of shareholders in the company law in a Mining Co., Ltd. in Dongning City, or whether it has the right to distribute the company's profits according to the cooperation agreement.
[relevant articles] Article 106 of the property law and Article 25 of the provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III)
[lawyer's opinion] the 2006 cooperation agreement was signed by a non-ferrous metal geological exploration team and a Mining Co., Ltd. in Zunhua city. Both parties agreed to cooperate in exploration and development of a copper mine, but the agreement did not agree to establish a cooperative enterprise. In addition, the effective (2013) mscz No. 10 civil judgment of the agreement confirms that "the purpose of the 2006 cooperation agreement signed by both parties is to cooperate in the exploration and development of the copper mine, not to transfer the exploration right or establish a cooperative or joint venture company. Therefore, both parties did not evaluate the value of the exploration right as capital contribution when signing the agreement, nor did they specify the amount of cash contribution of a Mining Co., Ltd. in Zunhua city." Therefore, a Mining Co., Ltd. in Dongning city was not established by a Mining Co., Ltd. in Zunhua City and a non-ferrous metal geological exploration team to perform the 2006 cooperation agreement.
A non-ferrous metal geological exploration team did not invest the exploration right as capital into a Mining Co., Ltd. in Dongning city according to legal procedures. Article 46 of the Interim Provisions on the administration of the transfer of mining rights (gtzf [2000] No. 309) issued by the Ministry of land and resources stipulates that "the parties involved in the transfer of mining rights must sign a mining rights transfer contract according to law. According to the different transfer methods, the transfer contract can be a sales transfer contract, a joint venture transfer contract or a cooperative transfer contract". Article 5 of the administrative measures for the transfer of exploration and mining rights stipulates that "the transfer of exploration rights shall meet the following conditions:... (IV) the exploration right use fee and the exploration right price have been paid in accordance with the relevant provisions of the State..." in this case, a non-ferrous metal geological exploration team has not signed the relevant mining right transfer contract with a Mining Co., Ltd. in Dongning City, nor has it gone through the relevant examination and approval and change registration procedures for the transfer of mining rights, Moreover, a certain team of nonferrous metal geological exploration has not paid the price of exploration right. The exploration right obtained by a Mining Co., Ltd. in Dongning city is the exploration right obtained by signing the exploration right transfer contract with the mineral development management office of the Provincial Department of land and resources, and the exploration right price is 7.8495 million yuan. Therefore, the exploration right obtained by a Mining Co., Ltd. in Dongning city is not invested by a non-ferrous metal geological exploration team.
The second paragraph of Article 27 of the company law stipulates that "the non monetary property as capital contribution shall be evaluated and verified, and the property shall not be overvalued or undervalued. Where there are provisions on Evaluation and valuation in laws and administrative regulations, such provisions shall prevail." A certain nonferrous metal geological exploration team has not gone through the formalities of examination and approval for the transfer of mining rights, change registration or filing, nor has it evaluated and valued the exploration rights involved, nor has it fulfilled the mandatory provisions of the company law on the contribution of non monetary assets. It is impossible to determine the value of the assets invested by a non-ferrous metal geological exploration team, let alone the investment proportion. Since the establishment of a Mining Co., Ltd. in Dongning city in 2007, the registered capital has increased from 100000 yuan to 260 million yuan. A non-ferrous metal geological exploration team has not made any investment, and a Mining Co., Ltd. in Zunhua city has not made any investment. All the funds are invested by Gao. On the premise that the three parties have a dispute over whether a non-ferrous metal geological exploration team holds 30% of the equity of a Mining Co., Ltd. in Dongning City, there is no factual basis and legal basis for the claim of a non-ferrous metal geological exploration team.
This case has a long time span, complex circumstances, huge subject matter, tortuous first instance process, and lasted four years. The first instance decided that we lost the case. Starting from the litigant's claim and based on the facts of the case, the undertaking lawyer team reviewed whether the litigant's claim had legal basis, stripped the silk and cocoon of the case, reduced the complexity to simplicity, and made a breakthrough in the case based on the claim right. The Supreme Court adopted all the opinions of the lawyers. The ruling of this case answers the application conditions of Article 25 of the provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III), and has a good reference for the trial of such cases in the future.
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