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Case: Equity transfer and asset transfer in the process of restructuring of joint-stock cooperative enterprises

A factory is a joint-stock cooperative enterprise with a registered capital of 6.5438+0.5 million yuan, which is divided into 6.5438+0.5 million shares, all of which are individual shares of employees. From June 5438 to February 2003, its net assets were assessed as1889 million yuan. On June 5438+February 3, 2003, A factory and B company signed a letter of intent for cooperation, stipulating that B company would buy all the shares of A factory at a premium of 1: 5, and pay 5.8 million yuan in compensation for the length of service of employees. On June 6, 2004, 65438+A Factory held a shareholders' meeting and a staff meeting. The shareholders' meeting passed a resolution on the transfer of shares by shareholders to Company B and Company C at a premium of 1: 5, and confirmed the assets appraisal results. The workers' congress passed the reform plan of the labor and employment system. On the same day, three board members and a factory supervisor signed a resolution at the enlarged meeting of the board of directors to compensate Company B and Company C for the loss of adjusting product structure and disposing of inventory with net assets of 3.59 million yuan. On June 65438+1October 65438+June, 2004, A factory signed an agreement with Company B and Company C, stipulating that Company B and Company C would acquire all the shares of A factory at the price of 5 yuan per share, and pay 5.8 million yuan for the employees' seniority compensation; A factory will be changed to a limited liability company; After the completion of the acquisition procedures, all assets, creditor's rights and debts under the name of Factory A shall be enjoyed and borne by the new company after the change. On June 65438+1 October 65438+September 2004, Company B and Company C paid13.3 million yuan to Factory A. On February12004, all shareholders of a factory signed a share transfer agreement with Company B and Company C. Since then, all shareholders have received shares. On February 0, 2004, a factory was changed into a limited liability company.

On August 3rd, 2004, the former125th shareholders of a factory sued the court on the grounds that the former three factory directors of the factory violated the provisions of the articles of association that the workers' congress had the right to make resolutions on the merger, division, change of enterprise form, dissolution and liquidation of the enterprise, and decided to sell the enterprise assets at a low price without authorization, which caused the factory to reduce its income by 3.59 million yuan and seriously damaged the legitimate rights and interests of all shareholders.

Judgement result

The court held through trial that in the process of restructuring a factory into a limited liability company, Company B and Company C obtained the shares of a factory, not the net assets. The process of reorganization shows that all shareholders know the evaluation of net asset value, share transfer price and the reform plan of labor and employment system in a factory before transferring shares, and finally sign share transfer agreements with companies B and C at the price of 1: 5. Therefore, 125 shareholders claimed that the three directors decided to sell the net assets of a factory at a low price without authorization, which caused the factory to reduce its income by 3.59 million yuan, without sufficient factual basis; Its claim that three directors should compensate all shareholders for losses of 3.59 million yuan has no factual and legal basis. Accordingly, the court decided to reject the lawsuit of 125 shareholders. After the verdict was pronounced, neither party appealed.

Comment and analysis

(1) Disputes over the application of law in the restructuring of joint-stock cooperative enterprises

Joint-stock cooperative enterprise is a special enterprise organization form explored in the practice of economic system reform in China to solve the development of collective enterprises and small state-owned enterprises. It is a combination of labor cooperation and capital cooperation. Enterprise employees are both laborers and investors. China's current laws have no special provisions on the organizational form of such enterprises, but are scattered in some policies and guidance opinions of the central ministries and commissions and documents of local governments. Therefore, this form of enterprise organization is not a civil and commercial subject in the legal sense. It is only a timely product in the practice of reform, and will eventually withdraw from the historical stage because of the lack of legal status. Many joint-stock cooperative enterprises have been or are in the process of restructuring, but disputes and lawsuits will inevitably arise in the process of restructuring or extinction. This case is one of them. Because there is no special law to regulate the organization and behavior of joint-stock cooperative enterprises, the legal application of such disputes in procedure and entity is a difficult problem and controversy in practice. One view holds that this kind of disputes can be analogously applied to the Company Law, while the other holds that there are no legal norms to be invoked except the General Principles of the Civil Law and the Contract Law.

The author holds the first view. For this kind of disputes, besides the general principles of civil law and contract law, the company law can also be applied by analogy. On the one hand, to some extent, the joint-stock cooperative enterprise is an enterprise organization form that originates from the practice of economic reform and is designed with reference to the characteristics of limited liability companies. Its main characteristics and nature are: from the perspective of subject qualification, joint-stock cooperative enterprises have independent corporate qualifications; Judging from the nature of the investor's liability, the joint-stock cooperative enterprise bears civil liability with all its assets, and the investor bears limited liability for the enterprise's debts to the extent of the capital contribution; From the perspective of the closed nature of the enterprise, individual shareholders must be employees of the enterprise and have strong humanity; From the perspective of organizational structure and authority, a joint-stock cooperative enterprise may set up a general meeting of employees' shareholders or a board of directors and a board of supervisors. The employees' shareholders' meeting is the authority of the enterprise. The board of directors is elected by the employees' shareholders' meeting and is responsible to the employees' shareholders' meeting. The chairman of the board is the legal representative of the enterprise. The board of supervisors is responsible for supervising the work of the board of directors, the general manager and other managers, and reporting directly to the employees' shareholders' meeting. The above-mentioned characteristics of joint-stock cooperative enterprises are similar to those of limited liability companies, and they have independent legal personality, and shareholders bear limited liability to the extent of capital contribution, which is closed, and the establishment and power distribution of shareholders' meeting, board of directors and board of supervisors. On the other hand, in modern society, judges should not refuse to accept judgments in civil and economic cases because of unclear laws, nor should they refuse to invoke legal provisions because of unclear laws. At the same time, analogy is also one of the methods to supplement legal loopholes in civil and commercial trials. Therefore, the application of company law by analogy in the disputes of joint-stock cooperative enterprises is not only the need to solve disputes, but also in line with modern judicial concepts, and has the basis of analogy application.

This case involves disputes between shareholders and directors arising from the restructuring of joint-stock cooperative enterprises. Although there is no special law that can be directly applied, according to the above analysis, the relevant provisions of the Company Law can be applied to this case by analogy. Also referring to the provisions of the Company Law, the cause of this case is determined as a dispute in which directors, supervisors and managers harm the interests of the company. As for the behavior in the process of reorganization, it can also be defined and evaluated according to the relevant systems and theories of the Company Law.

(B) On the definition of the nature of the acquisition behavior of Company B and Company C.

The focus of the dispute in this case is whether the acquisition behavior of companies B and C belongs to the acquisition of net assets or property rights, which is also the key issue of this case.

If it is a net asset acquisition, the board of directors has no right to decide the net asset transfer price of a factory. The enlarged meeting of the board of directors decided to compensate Company B and Company C for the loss of adjusting product structure and disposing of inventory with 3.59 million yuan, which harmed the interests of a factory. But if it is a property acquisition, it only involves the interests of the majority of shareholders, not the interests of a factory. What affects the interests of the majority of shareholders is the share transfer price and the amount of compensation for the length of service of employees. If the shareholders are willing to transfer their shares at the price of 1:5, and have not raised any objection to the compensation for the length of service of employees, it cannot be concluded that the decision of the directors' enlarged meeting made by three directors of a factory to compensate Company B and Company C for the loss of product structure adjustment and inventory disposal by 3.59 million yuan has harmed the interests of A factory.

Property right transfer and asset transfer are common forms adopted by enterprises in the process of restructuring, both of which may be accompanied by the reform of enterprise labor and employment system, but their legal characteristics are significantly different. The specific differences are as follows: First, the signatories of the agreement are different. The main body of the property right transfer agreement is the shareholder or the competent department of the enterprise and the acquirer, and the enterprise cannot sell it by itself, while the main body of the asset transfer agreement is the enterprise itself and the acquirer. Second, the transfer objects are different. The object of property right transfer is the property right of the enterprise, and the creditor's rights and debts of the enterprise will also be transferred to the acquirer, while the object of asset transfer is the assets of the enterprise, mostly the excellent assets of the enterprise, and generally does not involve the transfer of creditor's rights and debts to the acquirer. Third, the consideration of interest transfer is different. In the transfer of property rights, the beneficiary of the transfer consideration is the shareholder or the competent department of the enterprise, not the enterprise itself, while in the transfer of assets, the beneficiary of the transfer consideration is the enterprise itself. Of course, there may still be surplus assets after the liquidation of the enterprise, but in this case, the surplus assets obtained by shareholders or the competent department of the enterprise are completely different from the nature of the transfer consideration. Fourth, the basis for determining the transfer consideration is different. In the transfer of property rights, the determination of transfer consideration not only needs to consider the present situation of the enterprise, but also the future development prospect of the enterprise. In the transfer of assets, the transfer consideration is often based on the net value of the transferred assets. Five, the direct legal consequences are different. In the transfer of property rights, the acquirer obtains most or all of the control rights of the enterprise, and the acquired enterprise needs to change its shareholder registration or change its form and name. In the transfer of assets, the acquired enterprise only takes all or part of the assets as the exchange price, and after liquidation, it can eliminate its main qualification, or continue to exist by adjusting its business direction and reforming its operating mechanism.

According to the above-mentioned characteristics of property right acquisition and asset acquisition, in this case, the acquisition behavior of company A and company B should belong to property right acquisition rather than net assets acquisition. The reasons are as follows: first, from the signing subject and content of the agreement. In the process of restructuring a factory, a * * * signed three important agreements. One is the letter of intent for cooperation signed by Factory A with Company B and Company C on June 3, 2003+February 3, 2003, the other is the contract signed by Factory A with Company B and Company C on June 65, 2004+/Kloc-0+June 65, 2004, and the third is the contract signed by all shareholders of Factory A with Company B and Company C. Moreover, Factory A is a joint-stock cooperative enterprise, so it is unrealistic to disperse shareholders and acquirers to negotiate share transfer. Factory A first negotiates with the acquirer in its own name, and then the shareholders confirm that the transfer scheme is reasonable.

The key link in the final restructuring process, that is, share transfer, was also completed by all shareholders signing share transfer agreements with Company B and Company C. Factory A did not sell itself, but its shareholders transferred its shares to the acquirer. Therefore, the final transfer agreement is signed by the shareholders and the acquirer, and the transfer target is the property rights of a factory, not its net assets. Secondly, from the perspective of the beneficiary of the transfer. After signing the share transfer agreement with Company A and Company B, all shareholders have obtained the share transfer payment at the agreed price. The beneficiary of the transfer consideration is the shareholder, not the factory itself, and the benefits obtained by the shareholder are not the remaining assets after the liquidation of the factory. Third, from the direct legal consequences. After all shareholders transferred their shares to Company B and Company C, the main qualification of Factory A was not eliminated, but registered as a limited liability company, and its shareholders were changed to Company A and Company B accordingly. In addition, although the restructuring of a factory is not only a matter of share transfer, but also involves the reform of the labor and employment system, the reform of the labor and employment system is not a standard to distinguish the transfer of property rights from the transfer of assets, but a problem that may accompany the transfer of property rights and assets. Because Company B and Company C obtained the property rights of Factory A, but not the net assets, the net assets value of Factory A is not the only basis for determining the purchase consideration, which can be equal to or even less than the net assets value of the enterprise. All shareholders voluntarily transferred their shares to Company B and Company C at the price of 1:5, and raised no objection to the compensation of employees' length of service. It cannot be concluded that the decision made by three directors to compensate Company B and Company C for adjusting product structure and disposing of inventory losses will inevitably lead to the loss of income of Factory A and damage the interests of shareholders.

Based on the above analysis, in this case, 125, the plaintiff claimed that the three defendants decided to sell the factory at a low price without authorization, which caused the factory to reduce its income by 3.59 million yuan, and then demanded compensation of 3.59 million yuan from the three defendants. This statement is groundless and should not be supported.