Frequent disputes involving shareholder qualification confirmation and equity transfer


　　Is there any need to modify the rules for changes in equity confirmation?


　　□ Our reporter Zhang Wei

　　In recent years, disputes over the confirmation of company shareholder qualifications and equity transfers are not uncommon.

　　According to statistics, from October 31, 2019 to October 31, 2020, more than 126,000 corporate disputes occurred in my country.

Among them, there were more than 10,000 cases involving the confirmation of shareholder qualifications, more than 48,000 cases of equity transfer disputes, a total of more than 59,000 cases, accounting for 48.82% of all 22 types of corporate disputes.

　　"If the company law stipulates clearly on this issue, it can reduce the workload of our judicial organs and at the same time reduce nearly half of the company disputes. However, it is because of the unclear provisions of Article 32 of the Company Law that this breeds Disputes." In the 13th Session of the "Company Law Amendment Tour Forum" held recently-"The Character Shaping and Arbitrariness and Mandatory Norm Setting of Company Law", the Institute of Business Law, School of Civil, Commercial and Economic Law, China University of Political Science and Law Long Li Jianwei said bluntly.

It is reported that the forum is sponsored by the Business Law Research Association of the China Law Society.

　　The revision of the company law has been included in the legislative work plan of the Standing Committee of the National People's Congress this year.

Whether the provisions of Article 32 of the Company Law can be amended is of great concern.

　　Whether the self-agreement is valid

　　Whether mandatory regulations are necessary

　　The issue of equity has always been a core issue in corporate law.

　　The determination and change of equity in the Company Law are mainly stipulated in Article 32 of the Company Law.

It stipulates that: a limited liability company shall keep a register of shareholders, which shall record the following items: (1) the name or name and domicile of the shareholder; (2) the amount of capital contribution of the shareholders; (3) the number of the capital contribution certificate.

Shareholders recorded in the register of shareholders may claim to exercise shareholder rights based on the register of shareholders.

The company shall register the names or names of shareholders with the company registration authority; if the registered items are changed, they shall go through the modification registration.

Those who have not registered or changed their registration shall not confront a third party.

　　Generally speaking, the industry's interpretation of this regulation is that the confirmation of the company's equity is based on the company's shareholder register. Whoever records on the register is the shareholder, whoever has the equity.

When shareholder rights change, the shareholder register is changed, and the rights will be transferred, and the industrial and commercial registration is only effective in confrontation, not effective.

　　But seemingly clear regulations often encounter problems in practice.

For example, if the parties make their own agreement on the confirmation and change of equity in the articles of association, the agreement is not inconsistent with the company law, is it allowed and effective?

　　In this regard, Zhao Xudong, a professor at the School of Civil and Commercial Economic Law of China University of Political Science and Law and chairman of the Commercial Law Research Association, believes that this involves the issue of whether the provisions of Article 32 of the Company Law on equity are arbitrary or mandatory.

For example, the parties agreed in the company's articles of association or contract that the equity is not effective due to the change of the shareholder register, nor is it due to the confrontation effect of the industrial and commercial registration, but the equity transfer occurs when this contract takes effect.

If the party makes the above choice, will it have the effect of confrontation?

This is a practical issue that deserves attention.

　　Liu Kaixiang, a professor at Peking University Law School and vice president of the Business Law Research Association, believes that this issue is indeed controversial.

The problem is that such an agreement can be internally agreed, and it cannot be said that such an agreement violates mandatory regulations and is invalid.

If the parties are in peace, there is no problem. Once a dispute arises, such as when a stakeholder raises an objection, there is no internal and external registration, and this approach can be considered as not effective against third parties.

　　"There is an internal agreement saying that he is a shareholder. Can we base this determination? We must have a standard, so is it an internal shareholder register or an external registration, or an internal transfer contract?" Liu Kaixiang believes that the standard should be the only one, that is, external registration.

　　Current regulations are divorced from reality

　　Experts suggest a unified standard

　　This also involves another issue, namely the design of equity confirmation and change rules.

　　Zhao Xudong believes that the current provisions of Article 32 of the Company Law are in fact divorced from the reality of our country.

Many companies are not managed properly. Some do not have a shareholder register at all. Some shareholder registers do not match the actual situation. Some shareholders have changed twice and are still using the original shareholder register. "At this time, it is absurd to determine shareholders based on the shareholder register. Our clients have actually become accustomed to believing in business registration in transactions, and they feel that this is the most reliable and easiest way."

Therefore, in the design of this issue, the company law should continue to adhere to the current regulations, or changes are needed, which is worth discussing.

　　Jiang Daxing, a professor at Peking University Law School and executive director of the Business Law Research Association, pointed out that the determination of group membership should be unified in terms of rules. "If you do transactions with every different company, you must investigate its shareholder qualifications. Determining what the rules are and determining the authenticity will make the liquidity of equity very difficult."

　　According to Chen Su, member of the Chinese Academy of Social Sciences and director of the Institute of Law, a more detailed observation of the company's current situation is needed.

The composition of the company is very complicated, and the situation varies greatly. Does it have to be registered?

If the shareholder is only after registration, how to judge the effectiveness of some decisions made before registration and the decisions of participation is also a problem.

"The requirement to allow a company's equity change is first stipulated in the company's articles of association, to see what model is willing to adopt, and then to give a certain effect in law."

　　Jiang Daxing did not agree with this.

He believes: "Regarding the management of equity changes, the current problem is not that the shareholder register has no value, but that the social commercial credit is not high. Therefore, it is easy to cause problems if such an important document is handed over to private individuals for production and storage. Some changes have been made to the problems in practice, such as the issue of the register of shareholders by the public security organs."

　　Unclear regulations prone to disputes

　　Change is imperative

　　In Li Jianwei's view, the lack of clarity in Article 32 of the Company Law is the "culprit" of the above-mentioned problems, so there must be a clear rule.

　　Li Jianwei believes that equity cannot be arbitrarily autonomous by the parties, such as arbitrarily agreeing when it will take effect, because equity is an absolute right, a right to the world, and a qualified right, so it should be determined by a unified standard established by the organization.

　　Zhao Xudong said that this issue is not about public power deciding private power.

Civil activities need to rely on a specific form of public trust. For example, the change of property rights in the civil law requires registration by the registration department, but this is not that the party's change of property rights is subject to public power. The registration department provides only a public service. .

　　Jiang Daxing also took the real estate transaction as an example. He pointed out that after purchasing a house, registration is required. The real estate certificate issued by the Housing Authority is similar to the register of shareholders. Facilitate the exercise of rights.

However, the real estate certificate also has a certain value, for example, in various aspects such as pledge.

　　Li Jianwei objected, he believed that housing registration is not an act of publicity.

Article 32 of the Company Law stipulates that there can be no confrontation without industrial and commercial registration, and publicity is an act of showing rights.

The object of private power-setting behavior is only specific real estate, but if the rights of the members of the organization are handed over to the public authority to confirm it is risky.