<h1 class="pgc-h-arrow-right" data-track="2" > adjudication rules</h1>
The mailing of written notice to the other shareholders in connection with the transfer of the equity was returned, i.e. it did not actually reach the other shareholders.
After receiving the notice of capital increase, the existing shareholders did not request subscription, nor did they express the method and content of the capital increase, which is an automatic abandonment of the subscription of shares.
<h1 class="pgc-h-arrow-right" data-track="6" > Court Cha Lu Fangzhi Lawyer – Lawyer Lu Fangzhi's personal blog
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The defendant Yuanke Company was established on March 29, 2007 with a registered capital of 8 million yuan, the third party Huang Zhihong subscribed to contribute 3.2 million yuan, accounting for 40%, and Xu Lirong, an outsider in the case, subscribed to contribute 4.8 million yuan, accounting for 60%. The articles of association of the company on "equity transfer of shareholders" stipulate that shareholders may transfer all or part of their equity to each other, and may also transfer equity to persons other than shareholders; the transfer of shares by shareholders shall be agreed by the shareholders of other majority of the shares, and if the other shareholders of the majority of the shares do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity, and those who do not purchase shall be deemed to have agreed.
At the end of 2019, Huang Zhihong intends to transfer all the above-mentioned equity to the plaintiff Zunshi Company for a consideration of 3.2 million yuan. On December 30 of the same year, Huang Zhihong mailed the "Equity Transfer Notice Letter" issued to Xu Lirong and Yuanke Company containing the above contents to the place of registration of Yuanke Company, and the mail was returned without proper delivery.
On March 25, 2020, the plaintiff, Zunshi Company, and Huang Zhihong signed an Equity Transfer Agreement, which stipulated that Huang Zhihong would transfer the above-mentioned equity held by huang Zhihong to Zunshi Company for 3.2 million yuan, and Zunshi Company should pay the transfer price to Huang Zhihong within 30 days after the completion of the registration of the change in equity transfer; Huang Zhihong should assist Yuanke Company to complete the registration procedures for the change of industry and commerce required for the equity transfer within 15 working days after this agreement came into effect, and the date of completion of the change of industrial and commercial registration is the completion date of the equity transfer. From now on, Zunshi Company shall enjoy all rights and interests as a shareholder of Yuanke Company.
Subsequently, the two parties did not go through the change of registration, and the plaintiff mailed a notice letter requesting the change of industrial and commercial registration to Yuanke Company in July 2020, which was also returned. The plaintiff went to this court.
<h1 class="pgc-h-arrow-right" data-track="11" > the court held</h1>
The limited company has a personal nature, therefore, the transfer of equity to others by shareholders is subject to certain restrictions, and others need to form a valid contractual relationship with the transferring shareholders in addition to forming a valid contractual relationship with the transferring shareholders, and also need to notify other shareholders in accordance with the law or the provisions of the company's articles of association and obtain the consent of other shareholders. The written notice of the transferor should reach the other shareholders sufficient to inform them of the contents of the transfer and to express their intention accordingly. In this case, the Equity Transfer Agreement signed by the plaintiff, Zunshi Company, and a third party, Huang Zhihong, was established and valid. However, Yuanke Company did not hold a shareholders' meeting on the equity transfer involved in the case. Moreover, the transferor shareholder, the third party Huang Zhihong, mailed a written notice to other shareholders on the transfer involved in the case and was returned, that is, it did not actually reach other shareholders, and corresponding expressions of intention could be made. Nor was there any evidence that the other shareholders were aware of the transfer. Therefore, under the circumstance that the third party and the plaintiff in this case did not inform all the other shareholders of the transfer matters involved in the case, and obtained the consent of the other shareholders in accordance with the law or expressed their intention to agree, the plaintiff claimed that the defendant Yuanke Company had no basis in law to handle the registration of the change, and this court did not support its claim.
<h1 class="pgc-h-arrow-right" data-track="14" > court</h1>
On June 3, 2020, the defendant Red Pepper Garden Company held a shareholders' meeting to form the "Resolution of the Shareholders' Meeting of Changsha Red Pepper Garden Catering Service Co., Ltd. (Provisional)" as follows: 5. Agreed to increase the registered capital of Changsha Red Pepper Garden Catering Service Co., Ltd. by 1.04 million yuan, that is, the registered capital of Changsha Red Pepper Garden Catering Service Co., Ltd. was changed from 2.96 million yuan to 4 million yuan. The shareholders who increased the capital by bidding (83% of the equity agreed to approve this proposal). At the same time, in accordance with the above-mentioned resolutions and the provisions of the articles of association of the company, the company registration management authority went through the relevant procedures such as the change of registration and filing (83% of the equity agreed to pass this proposal).
On December 17, 2020, the plaintiff, Wang Huanjun, issued the "Confirmation Letter for Equity Subscription", confirming that he would voluntarily contribute RMB104,000 in monetary terms according to the original equity ratio of 10%, that is, 1,040,100 yuan to subscribe for the equity of Changsha Red Pepper Garden Catering Service Co., Ltd., and voluntarily contribute 1,0473% to 759,200 yuan to subscribe for 73% of the equity of Hunan Guoyu Lithium Energy Industrial Co., Ltd. that abandoned the capital increase.
On February 25, 2021, the plaintiff Wang Huanjun and the defendant Red Pepper Garden Company signed the Equity Subscription Agreement (hereinafter referred to as the "Agreement"), which stipulates that, according to the "Resolution of the Shareholders' Meeting of Changsha Red Pepper Garden Catering Service Co., Ltd. (Provisional) Held at the Extraordinary Shareholders' Meeting held by Red Pepper Garden Company on June 3, 2020", Red Pepper Garden Company increased its capital by 1.04 million yuan, and now Wang Huanjun subscribes 104 shares from Red Pepper Garden Company in cash, totaling RMB1.04 million, an increase of 26% shareholding ratio. On March 1, 2021, the plaintiff, Wang Huanjun, paid the defendant Red Pepper Garden Company 1.04 million yuan in capital increase subscription money as agreed, and the defendant Red Pepper Garden Company has not yet registered the change for the plaintiff.
<h1 class="pgc-h-arrow-right" data-track="18" > the court held</h1>
1. According to Article 43 of the Company Law of the People's Republic of China, "The methods of deliberation and voting procedures of the shareholders' meeting shall be stipulated by the articles of association of the company, except as provided in this Law." Resolutions made at the shareholders' meeting to amend the articles of association, increase or decrease the registered capital, and the resolution to merge, separate, dissolve or change the form of the company must be passed by the shareholders representing more than two-thirds of the voting rights", and the content of the resolution to increase the registered capital of 1.04 million yuan determined by the defendant Red Pepper Garden Company to increase the registered capital of 1.04 million yuan as determined by the "Resolution of the Changsha Red Pepper Garden Catering Service Co., Ltd. (Provisional) Shareholders' Meeting" held by the provisional shareholders' meeting on June 3, 2020 is legal and valid.
2. According to Article 34 of the Company Law of the People's Republic of China, "shareholders shall receive dividends in accordance with the proportion of paid-up capital contribution; when a company adds new capital, shareholders have the right to subscribe for capital contribution in accordance with the proportion of paid-in capital contribution." However, unless all shareholders agree not to share dividends in accordance with the proportion of capital contribution or do not subscribe to capital contribution in accordance with the proportion of capital contribution." On February 24, 2021, the Changsha Intermediate People's Court (2020) Xiang 01 Min Zhong No. 12138 Civil Judgment revoked the matter of "deciding on the capital increase of shareholders through bidding", but the Notice on Confirming the Subscription of the Company's Capital Increase Shares delivered to all shareholders by the defendant Red Pepper Garden Company on December 16, 2020 was the Company's capital increase plan, which determined the way of capital increase and was subscribed by the original shareholders in accordance with the original equity ratio. According to the provisions of the Company Law and the Articles of Association, the capital increase plan is an internal business matter of the company, and this kind of capital increase method complies with the provisions of the law. After the third party, Zhu Youming and Zhu Zeyu, received the notice of the capital increase, they did not request subscription, nor did they express the method and content of the capital increase, which was an automatic abandonment of the subscription of shares. As a shareholder of Red Pepper Garden Company, the plaintiff Wang Huanjun's subscription of 104 shares of the defendant Red Pepper Garden Company's capital increase did not violate the provisions of the company's articles of association, complied with the law, and was legal and valid.
3. The "Equity Subscription Agreement" signed by the plaintiff and the defendant is the true intention of both parties, does not violate the mandatory provisions of laws and administrative regulations, does not violate public order and good customs, is legal and valid, the parties should fully perform their respective obligations in accordance with the agreement, the plaintiff has fulfilled the obligation to pay the capital increase subscription fee in accordance with the agreement, because the amount of shareholder capital contribution and shareholding ratio after the capital increase has changed, so according to Article 32 of the Company Law of the People's Republic of China, "the company shall register the name or name of the shareholder with the company registration authority." Where there is a change in the registered matters, the registration of the change shall be handled. Where registration has not been carried out or the registration has been modified, it shall not be confronted against a third party. and Article 23 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 < the > (III) stipulates that "if a party performs its capital contribution obligation in accordance with the law or has acquired equity in accordance with the law, and the company fails to issue a certificate of capital contribution, record it in the register of shareholders and register with the company registration authority in accordance with the provisions of Articles 31 and 32 of the Company Law, and the parties request the company to perform the above obligations, the people's court shall support it." The defendant shall register the change of equity for the plaintiff.