China News Agency, Beijing, July 7th, Question: What should be the law from "stamp grabbing" to "false stamp"?
China News Service reporter Zhang Su
Following the "Seal the Official Seal" on April 26, Li Guoqing, the founder of Dangdang.com, entered the Dangdang office again on the 7th to "get information." When Dangdang called the police, Li Guoqing was investigated by the police.
Li Guoqing's real-name authenticated Weibo account voiced several times on the same day, saying that he took over Dangdang and started office, presented a "Dangdang organizational structure and personnel adjustment announcement" stamped with an official seal, and also issued an open letter to small shareholders. When Dangdang responded, what Li Guoqing said to take over Dangdang was false information. As of press time, Li Guoqing's wife, Yu Yu, who actually took charge of Dangdang in recent years, remained silent.
Dangdang official seal. From Li Guoqing's Weibo
As the first generation Internet startup in China, Dangdang was China's first B2C online mall listed in the United States, with a market value of more than US$2.3 billion. Li Guoqing and Yu Yu have received much attention around the dispute over the management rights of Dangdang.com, and in the process of "power struggle", "snatching India" is not only the focus, but also involves legal issues.
Wu Jingming, associate professor of economic law at China University of Political Science and Law, said that the official seal is an important carrier for guaranteeing and conducting business on behalf of the company. It is generally the legal representative or the person authorized by him who has the official seal. However, the legal representative must be elected by the legal shareholders' meeting or the board of directors.
As it said, the company seal is the company's special property, not the "private property" of the company's shareholders, legal representatives and others. As for who will manage the company seal and who can use it, it is often clarified and restricted by the company's internal management regulations. Wu Jingming said that Dangdang as a limited liability company, the election of legal representatives can be decided by shareholder voting or the proportion of capital contributions, of course, also depends on the specific provisions of the company's articles of association.
"Many people in practice are too superstitious about official seals." Liu Junhai, a professor at the Renmin University of China Law School, bluntly said that it depends on whether Li Guoqing's "taking India" is legal. The key depends on Li Guoqing's equity ratio, the effectiveness of shareholders' meeting resolutions and the effectiveness of board resolutions.
The outside world noticed that Li Guoqing said that the police's investigation of "robbing the official seal" in June was that "Li Guoqing did not violate the law". Another lawyer analyzed Li Guoqing’s “grabbing information” on the 7th and said that this was a conflict of corporate governance caused by the fact that the family of the actual controller changed, and it was not a robbery by unrelated outsiders.
Zhu Yicong, a lawyer from Beijing Yingke (Shenzhen) Law Firm, has a different opinion. He told a reporter from China News Service that Li Guoqing’s “grabbing the official seal” was not handled by the police in April. On the one hand, it showed the modesty of the public security organs in the process of intervening in social and economic disputes. On the other hand, it was difficult for the official seal to be quantified as a fixed price. Objects, it is not appropriate to directly apply the crime of property infringement. But this does not mean that the public security organ recognizes this behavior. In fact, the act of Li Guoqing and others forcibly entering Dangdang and prying open the safe to obtain information is bound to be inappropriate. "If all internal company disputes can be resolved by snatching the official seal and internal information, the entire society will lose order."
Zhu Yicong pointed out that Li Guoqing's legal flaws in "grabbing the official seal" are clearly visible. Checking the business information materials of Dangdang's parent company, Beijing Dangdang Information Technology Co., Ltd., it can be seen that although Li Guoqing made a series of changes to the company after "taking the seal", the company's business information information has not changed accordingly, indicating that Li Guoqing The main content of the resolution announced by one party, such as the election of Li Guoqing as chairman and Yu Yu no longer serving as legal representative, etc., did not pass the industrial and commercial change registration.
Embedding the names of Li Guoqing and Yu Yu, what is the follow-up to the “Qingyu Year”, which is a homonymous TV drama in 2019, and whether Li Guoqing’s “obtaining information” is illegal, the legal profession believes that it depends on the police's understanding of the relevant provisions of the Public Security Management Punishment Law. However, due to the official seal, many people think of the recent "fun geese injustice" that is homophonic with the classic Chinese tragedy-Tencent and Lao Ganma. The police found that the "arrears" of more than 16 million yuan (RMB, the same below) were three criminal suspects who forged the seal of Laoganma Company and pretended to be the manager of the company's business department and defrauded them from Tencent.
"When a false seal appears, it generally involves the issue of the validity of a civil contract and whether the illegal act constitutes a crime." Zhu Yicong said that it is divided into two cases of "real fake seal" and "dummy fake seal". The former refers to "representative" The contract signed by the legal representative or agent of the agency right is valid," the latter judges whether it constitutes an offence or a crime based on the relationship between the actor and the company, the means adopted, and the impact on the company.
It is not only Tencent that is blinded by the “false seal”. In 2016, Midea Group was defrauded of 1 billion yuan in financial management funds by the fake seal. A recent media investigation found that despite the criminal law and other regulations that prohibit the forgery of seals, the black industry chain of "fake seals" still exists because of the large buyer market. Not long ago, a police station in Hebei cracked two "cases of selling fake certificates and false seals" within one month. The criminal suspect Qiu confessed that he had sold hundreds of "official seals" since 2018.
How can we reduce the legal disputes caused by the company's seals from "snatching" to "false stamps"? Legal experts believe that the effectiveness of individual seals should be moderated, for example, "It is clearly stated that the legal representative's handwritten signature and company seal must be provided at the same time, so as to conform to the complete expression of the company's will." At the same time, it is necessary to standardize the procedures for the use of custody seals and to enhance the publicity and technicality of company seals, such as "clearly announce the company's seal patterns and seal specifications to facilitate public inquiry."
From "Qing Yu Nian" to "Funny Goose Injustice", electronic seals have also come into public view. Supporters believe that the electronic seal contains a digital certificate specially issued by a national authority and is stamped with the time stamp of the National Time Service Center, which has legal effect and cannot be forged.
"Electronic seal can effectively prevent the official seal from being tampered with, which is beneficial to backtracking and verification." Zhu Yicong said, but because the content of the contract is also stored on the server of the company that provides the contracted service when using the electronic seal, the market body is inevitably worried about the disclosure of commercial secrets And prefer to use the traditional official seal, so it needs further exploration and improvement. (Finish)