The special craftsman lawyer said that the case | the company was closed, the shareholders were fiercely conflicted, and the lawsuit for dissolution was refuted. (2021) SPC Minshen No. 6117
Wang served as the executive director and general manager of Sunflower Catering Management (Hainan) Co., Ltd., Wang also held 40% of the company's equity, another shareholder, Hainan Tianhong Haidao Real Estate Development Co., Ltd., held 60% of the equity, the two shareholders had a dispute in the course of business, becoming increasingly fierce, unanimously the catering company stopped operating, Wang sued the court to dissolve the company, the first instance and second instance did not support. Wang applied to the Supreme Court for a retrial, and after trial, the collegial panel held that:
First, according to the facts ascertained by the court of first instance, Sunflower Company held a shareholders' meeting on January 15, 2018, and formed a valid resolution, and it has not been two years since Wang filed a lawsuit with the court of first instance to dissolve Sunflower Company on January 2, 2020. Therefore, after comprehensively considering the contents of Sunflower Company's articles of association, Wang's right as an executive director of the company to convene a shareholders' meeting, and Tianhong Haidao Company's willingness to resolve disputes through consultation and other means in litigation, the court of first instance held that if Wang believed that Tianhong Haidao Company's behavior infringed on the legitimate rights and interests of the company or its shareholders, it could be resolved in accordance with the relevant provisions of the Company Law and in accordance with legal channels.
Second, Wang did not provide evidence to prove that he had voluntarily convened a shareholders' meeting or through other channels stipulated in the Company Law to solve the current predicament of Sunflower Company; he failed to provide sufficient and effective evidence to prove that the continued existence of Sunflower Company would cause significant losses to the interests of shareholders. Therefore, the court of first instance held that the contradiction between the shareholders of Sunflower Company still existed through other means to resolve, there was no need for judicial dissolution, and the evidence submitted by Wang was insufficient to prove that the contradiction between the shareholders of Sunflower Company could only be resolved by dissolving the company, so it was made that Sunflower Company did not meet the conditions for the dissolution of the company stipulated in the Company Law, and the facts and legal basis were sufficient, and this court recognized it.
Third, although Wang applied for a retrial in accordance with the provisions of items 4 and 9 of article 200 of the Civil Procedure Law, he did not provide sufficient and effective evidence to prove that the main evidence of the original trial that determined the facts had not been cross-examined and violated the provisions of the law, depriving the parties of the right to debate, so this court did not support it. During Wang's application for retrial, Wang submitted to this court the "Catalogue of New Evidence for Retrial Applicants", as well as evidentiary materials such as abnormal information on industrial and commercial operations, SMS notification of China Merchants Bank, SMS notification of tax bureau, and photos. According to Article 387 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, not only did Wang not reasonably explain the reasons for submitting evidence late, but the above-mentioned evidentiary materials could not prove that the original judgment identified the basic facts or the judgment result was wrong, and Wang's application for retrial was rejected.
The author has also handled the company dissolution dispute, as a party to the lawsuit for dissolution, in addition to referring to the provisions of Article 182 of the Company Law and Article 1 of the Interpretation II of the Company Law, it is necessary to pay attention to the convening of the shareholders' meeting and whether other means have been adopted to solve it. There is also a case where communication is fruitless, to find an intermediary to negotiate with shareholders to see if they can communicate the results? None of these avenues worked, and a dissolution lawsuit was filed.
In particular, this case is a retrial lawsuit, and the applicant filed it in accordance with items 4 and 9 of the Civil Procedure Law, at this time it depends on whether there is an evidentiary basis to support items 4 and 9. In the retrial case handled by the author, as the applicant, it must focus on article 200 of the Civil Procedure Law to consider the factual basis and normative basis of the retrial, and only when the foundation is established can the retrial be supported.
Article 1, Paragraph 1 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 (II) stipulates: "Where a shareholder who individually or collectively holds more than 10% of the voting rights of all shareholders of a company initiates a dissolution lawsuit for the dissolution of the company on one of the following grounds and complies with the provisions of Article 182 of the Company Law, the people's court shall accept it: (1) If the company is unable to convene a shareholders' meeting or shareholders' meeting for more than two years, and serious difficulties occur in the operation and management of the company." ;(2) When shareholders vote, they cannot reach the proportion prescribed by law or the articles of association of the company, and they cannot make effective resolutions at the shareholders' meeting or shareholders' general meeting for more than two years, and serious difficulties occur in the operation and management of the company; (3) the conflict between the chairman of the board of directors of the company cannot be resolved through the shareholders' meeting or the shareholders' general meeting, and serious difficulties occur in the operation and management of the company; (4) other serious difficulties occur in the operation and management, and the company's continued existence will cause major losses to the interests of shareholders. ”
