[introduction to the lawyer of this case]: Li Haiyi, senior partner of Liaoning Tongfang law firm. Engaged in enterprise bankruptcy, liquidation, reorganization and other company legal business for a long time. He is currently the legal adviser of the people's Government of Liaoning Province, the director of the bankruptcy and liquidation Professional Committee of Liaoning Lawyers Association, the vice president and Secretary General of Shenyang bankruptcy administrator Association, and the deputy director of the liquidation and bankruptcy Professional Committee of Shenyang Lawyers Association.
[key points of adjudication]: the plaintiff requested to dissolve the joint venture company according to the company law. As the voting rights of the company held by the plaintiff have exceeded 10%, it has the right to file a lawsuit for dissolution of the company. According to the provisions of the company law, the dissolution of the company shall meet three conditions at the same time, that is, the company has serious difficulties in operation and management, the continued existence will cause significant losses to shareholders' interests, and cannot be solved through other means. First of all, whether there are serious difficulties in the operation and management of the joint venture. In this case, the joint venture has convened the board of directors for many times since its establishment and formed effective resolutions. The plaintiff has formed effective resolutions on major matters of the company within the two years before filing the lawsuit. At the same time, the joint venture has been in continuous operation with good operating efficiency. The evidence provided by the plaintiff is not enough to prove that the operation and management of the joint venture is out of order and cannot operate normally, and the operation and management of the company has not encountered serious difficulties. Secondly, whether the continued existence of the joint venture will cause significant losses to shareholders' interests. The joint venture does not have serious difficulties in operation and management. On this premise, whether the continued existence of the company will cause significant losses to shareholders' interests should be analyzed in combination with the relief methods of shareholders' interests. The existing evidence is not enough to prove that the continued existence of the joint venture will cause significant losses to shareholders' interests. Finally, whether the disputes between the shareholders of the joint venture can be resolved through other channels. It is a necessary prerequisite for the shareholders to request dissolution of the company if they can not be resolved through other channels. Only when all possible remedies are exhausted and the deadlock of the company cannot be resolved, can the shareholders be given the right to forcibly dissolve the company through judicial procedures. In this case, the contradiction between shareholders is difficult to reconcile, but the contradiction between shareholders is not the legal reason for dissolution of the company. The shareholder disputes can be resolved by internal means (such as the right to know, the right to request dividends, and the shareholder withdrawal mechanism). To sum up, the joint venture does not meet the dissolution conditions specified in the company law and should not be dissolved. The plaintiff's claim lacks factual basis and the court will not support it.
[basic case]: an automobile service company in Shenyang (hereinafter referred to as the joint venture) is a joint venture established by a company (hereinafter referred to as the plaintiff) and a Shenyang Group Co., Ltd. (hereinafter referred to as the Chinese shareholder). I told the joint venture and the Chinese shareholders that I wanted to dissolve the joint venture. The plaintiff's cause of action is: the long-term conflict between the directors of the joint venture company is an objective fact. The conflict between the directors also directly reflects the antagonism and loss of trust among the shareholders, the foundation of joint operation is shaken, and the operation and management of the company is extremely difficult. The continued existence of the company will cause great losses to the plaintiff's interests, which cannot be solved through other channels. According to Article 182 of the company law and Judicial Interpretation II of the company law, the joint venture shall be dissolved. The joint venture company and its Chinese shareholders do not agree to dissolve the joint venture company. They believe that the joint venture company has been able to operate normally since its establishment, and there is no difficulty in operation and management.
[judgment result]: the judgment of the first instance rejected the plaintiff's claim.
The case acceptance fee was 174904 yuan, which was borne by the plaintiff.
Reason for judgment in the first instance: the automobile service company has not fallen into the situation where the company's operation and management are out of order and cannot operate normally, and the company's operation and management have not encountered serious difficulties. As far as the existing evidence in this case is concerned, it is not enough to prove that the continued existence of the joint venture will cause significant losses to shareholders' interests. The conflict between shareholders is not the legal reason for dissolution of the company. The shareholder disputes can be resolved by internal means (such as the right to know, the right to request dividends, and the equity withdrawal mechanism). The joint venture does not meet the conditions for dissolution stipulated in the company law and should not be dissolved. The plaintiff's claim lacks factual basis.
[relevant articles of Law]: Article 182 of the company law: if the company has serious difficulties in operation and management, and its continued existence will cause heavy losses to shareholders' interests, which cannot be solved through other means, shareholders holding more than 10% of the voting rights of all shareholders of the company may request the people's court to dissolve the company.
Article 1 of the Judicial Interpretation II of the company law stipulates that if a shareholder who individually or collectively holds more than 10% of the voting rights of all shareholders of the company files a lawsuit for dissolution of the company due to one of the following reasons and complies with the provisions of Article 182 of the company law, the people's court shall accept it:
（1） The company is unable to convene the shareholders' meeting or the shareholders' meeting for more than two years, and the company has serious difficulties in operation and management;
（2） The shareholders fail to reach the proportion specified by the law or the articles of association when voting, and fail to make effective resolutions of the shareholders' meeting or the shareholders' meeting for more than two years, resulting in serious difficulties in the operation and management of the company;
（3） The conflict between the directors of the company is long-term and cannot be resolved through the shareholders' meeting or the general meeting of shareholders, resulting in serious difficulties in the operation and management of the company;
（4） Other serious difficulties occur in operation and management, and the company's continued existence will cause significant losses to shareholders' interests.
[lawyer's opinion]:
1、 The plaintiff's cause of action in this case is the long-term conflict between the directors of the joint venture company, and the company's operation and management are extremely difficult. The continued existence of the company will cause the plaintiff's interests to suffer heavy losses, which cannot be solved through other channels. The reason why the lawsuit is filed on this reason is that there is no time limit (such as two years) for the long-term conflict between directors. By the time of the lawsuit, the board of directors has failed to make an effective resolution for one year and two months, and this state has continued for two and a half years until the judgment of the first instance. And the deadlock of the board of directors cannot be resolved through the shareholders' meeting or equity transfer. Therefore, in accordance with the provisions of item (3) of Article 1 of Judicial Interpretation II of the company law, the company shall be dissolved. The judgment of the first instance did not adopt the plaintiff's view. The first reason was that "the plaintiff had made effective resolutions on major matters of the company within two years before filing the lawsuit. Meanwhile, the joint venture has been continuously operating and has good operating efficiency. The evidence provided by the plaintiff is not sufficient to prove that the joint venture has serious difficulties in operation and management." We believe that, first, there is no time limit of two years for directors to make effective resolutions on major issues due to long-term conflicts among directors. Second, the company's continuous operation and good benefits are not proof that there are no serious difficulties in operation and management. To judge whether the company has serious difficulties in operation and management, comprehensive analysis should be made on the operation status of the company's organizational structure, such as whether the board of shareholders, the board of directors, the board of supervisors and other company authorities and management bodies can not operate normally, whether effective resolutions can not be made on the company's matters, and whether all the company's affairs are paralyzed. Good operating efficiency is a financial problem rather than a management problem. In this case, the conflict between the directors of the joint venture company has lasted for a long time and has lasted for two and a half years until the judgment. The deadlock cannot be resolved. The deadlock of the board of directors will inevitably lead to serious difficulties in the operation and management of the joint venture company. The second reason for the first instance decision is that the contradiction between the shareholders of the joint venture company is not a legal cause for dissolution of the company, and the shareholder disputes can be resolved by internal resolution. Not all the contradictions between shareholders are the reasons for dissolution of the company, but the procedure that causes the deadlock of the company must be the reason for dissolution of the company. For example, the company can not hold the shareholders' meeting or the shareholders' meeting for two years, and can not make effective resolutions of the shareholders' meeting or the shareholders' meeting for more than two years. All these are concrete manifestations of the contradictions between shareholders. It is an objective fact that the conflicts between the shareholders (directors) of the joint venture cannot be resolved through other channels. If the plaintiff requests to transfer the equity and make a reasonable price through evaluation, but the Chinese shareholders firmly disagree. Mediation by the people's court was also unsuccessful. This is a typical manifestation of serious difficulties in operation and management, and the survival of the company will certainly cause great losses to shareholders' interests. Therefore, the plaintiff's claim should be supported. The judgment of the first instance failed to support the plaintiff's claim, which is a typical fact and two different understandings and understandings.
2、 The acceptance fee of the first instance case was 174904 yuan, which was borne by the plaintiff. The litigation costs shall be borne by the losing party, which is beyond reproach. However, it is wrong to charge the case acceptance fee based on the registered capital of the joint venture in this case. The Supreme People's Court (2017) Supreme People's court civil judgment No. 373 clearly pointed out that "since the dissolution of the company is a non property case, the court of first instance improperly charged the case acceptance fee according to the amount of the property object, and this court also corrected it according to law." The plaintiff has pointed out to the first instance judge that the case acceptance fee should be charged on a case by case basis, but the judge has not paid attention to it. When studying whether to appeal, the plaintiff asked the lawyer to ask the Provincial Higher People's court how to collect the case acceptance fee of the company dissolution lawsuit. The reply of the Provincial Higher People's court is still based on the amount of registered capital. Searching for the collection of case acceptance fees of people's courts at all levels in Liaoning Province, it turns out that the basic people's courts collect more fees per case, while the Shenyang intermediate people's court collects all fees according to the amount of registered capital. This directly led the plaintiff to abandon the appeal.
[case handling lawyer]: Li Haiyi
Yang Xingquan