The Shandong court released the top ten typical cases of commercial trials in 2021

Public Network Poster News Reporter Li Jinshan reported from Jinan

On the afternoon of January 19, 2022, the Shandong Provincial High People's Court held a press conference, and Xu Qingshuang, president of the Second Civil Division of the Shandong Provincial High People's Court, informed the public of the top ten typical cases of commercial trials in 2021.

Xu Qingshuang introduced at the meeting that in 2021, Shandong courts will give full play to the role of commercial adjudication functions, guide all commercial entities to operate in good faith according to law, and provide judicial guarantees for the stable and healthy development of the economy. Recently, the Shandong Provincial Court selected 10 typical cases of commercial adjudication in 2021, which cover a wide range of cases, including the application of the newly established principles of the Civil Code, the adjudication rules of new types of disputes such as the adjudication rules for securities and futures trading disputes and the application of new laws, as well as legal issues in common areas of commercial activities such as the effectiveness of guarantees and the equity of companies, which objectively reflect the normal work of Shandong courts in serving the sustained and high-quality development of the province's economy.

Among the top ten typical cases of commercial trials in 2021 announced this time, the first type of case is the first series of damages caused by false statements by a new third board listed company in the process of private placement. Disputes on the New Third Board are new types of financial disputes and have no clear legal basis for regulation. The Shandong Higher People's Court gave full play to the guiding role of judicial adjudication in the New Third Board market, and in accordance with the characteristics and legal principles of the New Third Board market, clarified the criteria for attributing the responsibility of those responsible for securities misrepresentation in the New Third Board market, which not only severely punished securities market information fraudsters, fully protected the legitimate rights and interests of small and medium-sized investors, but also clarified the reasonable limits of the civil liability of independent directors, reflecting the value guidance and normative role of the judiciary in financial market behavior.

The second type of case is to guide commercial entities to implement the concept of green development in the performance of contracts. In the year since the implementation of the Civil Code, Shandong courts have actively guided commercial entities to adopt the "green principle" as the basic code of conduct and promote the healthy and sustainable development of the province's economy. In a new energy company v. a group contract dispute case, although the conditions for rescission stipulated in the contract have been fulfilled, the rescission of the contract seriously violates the "green principle", resulting in a great waste of resources, and the court comprehensively considers the performance of the contract, the degree of breach and the impact on the purpose of the contract, and based on the "green principle" clause of the Civil Code, appropriately restricts the right to rescind the contract of the observant party.

The third type of case is to substantively protect the legitimate rights and interests of financial consumers. In financial activities, the channels and accuracy of information obtained by financial consumers rely excessively on the informing behavior of the seller's institution, and their legitimate rights and interests are vulnerable to infringement and should be protected in accordance with law. In the case of Cao X v. a bank in the dispute over the financial entrustment wealth management contract, the court found that the seller institution failed to fully perform its obligations of knowing customers, understanding products, and selling appropriate products to suitable financial consumers in the process of introducing and selling high-risk financial products to financial consumers, and ruled that the seller institution should bear the corresponding compensation liability, which not only provided judicial standards for the determination of the responsibility of the seller's institution, but also provided a reference basis for the financial activity behavior standard of "the seller is responsible and the buyer is responsible".

The fourth type of case is to focus on preventing and resolving financial risks. Financial stability, economic stability. Shandong courts strictly adhere to the judicial bottom line of not having systemic financial risks, and earnestly prevent and resolve financial risks in the trial of cases. In the case of Wang X v. A company in Ningxia, the court took the special financial and risk attributes of the futures trading as the starting point and found that the conduct of futures trading in a trading venue established without approval was an act that harmed the national and social public interests and was extremely likely to induce financial risks, and thus found that the futures trading contract involved in the case was invalid.

The fifth type of case is to strengthen the contractual awareness of each commercial entity. The way of management, integrity-based. Strengthening the spirit of commercial subject contracts and encouraging good faith performance is an important goal of commercial adjudication. In the case of a construction company v. a property rights trading center co., LTD. equity transfer dispute, the court found that the relevant contract that the bidder bid and signed according to the listing announcement was an appointment contract based on the bidding process of the target project, and that all parties to the contract should perform in good faith, and when the counterparty to the contract breached, the bidder had the right to request it to bear the corresponding liability.

The sixth type of case is the strict implementation of judicial policies for the protection of enterprise property rights. Strengthening the protection of property rights is an inevitable requirement for creating a business environment based on the rule of law. Accurately defining property rights relations is also an important part of judicial adjudication. In the lawsuit against the enforcement of objections by outsiders in the case of a development and investment limited liability company in Benxi City v. Zibo Commercial and Trade Co., Ltd., the court found that the property to be enforced should be limited to the liability property of the judgment debtor, and the special funds established for special reasons in the account of the judgment debtor could not be determined to be the responsible property of the judgment debtor because they did not have the right to control and control, thus reasonably delineating the scope of protection of the property rights of the enterprise.

The seventh type of case is a dispute relating to a company. Two typical cases were involved. Companies are the most important market entities, and the Company Law is the basic law of the socialist market economy system. The Shandong court took the opportunity of the revision of the Company Law to fully and equally protect the legitimate rights of the company, shareholders, creditors and other entities. The first case is the full protection of the legitimate rights and interests of shareholders. In a lawsuit in which an asset company in Jinan sued a company in Shandong for an enforcement objection by an executor, the court delineated the boundary between the joint and several liability of the promoter for the shareholders who made false capital contributions and the promoter's own obligation to make up the capital contribution or return the capital contribution to the company, and found that the promoter who assumed the joint and several liability and had fulfilled the capital contribution obligation had the right to defend the limitation period of action. The second case was a case of full respect for the autonomous effects of the resolutions of the shareholders' meeting. In a dispute between a company in Qingdao v. a company in Rizhao and a company, the court held that the funds injected into the company's account could only become the registered capital of the company after a valid resolution of the shareholders' meeting and had a binding force on the company's internal shareholders, and made a judgment based on the actual use of the funds involved.

The eighth category of cases is disputes relating to guarantees. Two typical cases were involved. Guarantee behavior is a relatively common commercial credit enhancement behavior in the commercial field, but new problems in guarantee disputes have repeatedly emerged. The first case was the protection of the security rights of creditors in insolvency proceedings in accordance with the law. In a case involving a bank v. an investment company in Qingdao over a mortgage contract dispute, where the borrower entered the reorganization procedure and the guarantor passively applied for bankruptcy claims, the court adhered to the principle of good faith and equal protection while ascertaining the facts, protecting the legitimate rights of creditors who actively performed their reporting obligations, and determining that the guarantor should perform the guarantee obligations. The second case is to interpret and apply the legal principles in combination with industry norms to determine the validity of the guarantee contract. In a loan contract dispute between a bank v. Rizhao Real Estate Company, the court ascertained that there was a real estate mortgage loan cooperation agreement between the real estate developer and the cooperative bank, and the guarantee behavior of the real estate developer to provide a phased guarantee for the buyer of the property he developed for himself in the cooperative bank was a common practice in the industry, which was to provide a guarantee for its own interests, did not harm the interests of the company and the shareholders, and should not be found invalid on the grounds that the guarantee was not resolved by the company's shareholders' meeting or the board of directors.

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Top 10 Typical Cases of Commercial Trials in Shandong Courts

(2021)

1. Application of the Green Principles of the Civil Code

——An energy company v. a group company in a contract dispute

2. The adjudication rules for stock misrepresentation cases on the "New Third Board" apply

——An investment company v. a joint-stock company and its 13 directors and supervisors in a dispute over the liability for misrepresentation of securities

3. Criteria for determining the validity of futures trading contracts

——Wang X v. A Science and Technology Development Co., Ltd. in a contract dispute case

4. Examination standards and rules for the presentation of evidence for financial institutions to perform their appropriateness obligations

——Cao X v. A Bank Financial Entrusted Wealth Management Contract Dispute Case

5. Determination of liability of the breaching party to the reservation contract

——A decoration company v. a property rights trading center equity transfer dispute case

6. The substantive examination criteria for the subject matter of enforcement in the litigation of enforcement objections

——An investment company v. a trading company in a dispute over the enforcement of objections by outsiders

7. Treatment of conflicting situations between the realization of a security right and a bankruptcy reorganization plan

——A bank v. an investment company in a dispute over a mortgage contract

8. The standard for the presumption of the intention of the guarantee in the sale and purchase of commercial housing is true

——A loan contract dispute between a bank and a real estate company, Wang xx, and Meng xx

9. The joint and several liability of the company's promoter is determined

——An asset management company v. a group company, a construction company, and a chemical fiber company applied for an enforcement of an enforcement objection to the litigation dispute

10. Determination of the nature and effectiveness of the funds injected into the company's account

——A technology company v. a fishing company in a dispute related to the company