Shenzhen XX Data Technology Co., Ltd. v. XX Electrical Appliances (Shenzhen) Co., Ltd. and Wuxi XX New Material Technology Co., Ltd., a dispute over the creditor's right of revocation
-- Determination and handling of the creditor's exercise of the right of revocation on the grounds that the debtor has not repaid the debts of the shareholders without the company's resolution procedure
keyword
Civil Creditor's Right of Revocation Guarantee Contract Repayment in Kind Resolution of the Shareholders' Meeting Review of the validity of the contract
Basic facts of the case
Shenzhen XX Data Technology Co., Ltd. (hereinafter referred to as a data technology company) alleges: 1. Revoke the act of XX Electrical Appliance (Shenzhen) Co., Ltd. (hereinafter referred to as XX Electrical Appliance Company) to transfer the real estate of No. X1 and X2 of a park in Binhu District, Wuxi City to Wuxi XX New Material Technology Co., Ltd. (hereinafter referred to as a new material company); 2. Order an electrical appliance company and a new material company to change and register the above-mentioned immovable property in the name of an electrical appliance company.
After trial, the court ascertained that on July 5, 2018, an electrical appliance company and a data technology company signed a "Material Procurement Agreement", stipulating that a data technology company would carry out the procurement of specific types of materials in accordance with the material suppliers designated by an electrical appliance company. On the same day, You Moumou, deputy general manager and director of an electrical company, signed a "Letter of Guarantee" to a data technology company, stating that he was willing to provide joint and several liability guarantee to an electrical company. On December 9, 2020, the court rendered a judgment on the case: 1. The electrical appliance company repaid the payment of 18,825,702.84 yuan to the data technology company and paid liquidated damages;
On October 20, 2018, Huang, the legal representative of an electrical appliance company, signed two "Wuxi Stock Housing Sales Contracts" with a new material company on behalf of an electrical appliance company, respectively stipulating that an electrical appliance company would sell a house No. X1 in a park in Binhu District, Wuxi City to a new material company at a price of 3 million yuan; Sold the house X2 in a park in Binhu District, Wuxi City at a price of 3.12 million yuan. The above two houses were later transferred and registered under the name of a new material company on October 24, 2018.
On June 21, 2019, Yan Moumou, the legal representative of a new materials company, filed a lawsuit with the court, requesting that You Moumou be ordered to repay the principal of RMB 3,861,444.47 (HK $10 million deducted You Moumou's loan of RMB 5,273,855.53 with the real estate of No. X1 and X2 in a park in Binhu District, Wuxi City). The trial of the case ascertained that Yan Moumou agreed that You Moumou would use the real estate of No. X2 of a park in Binhu District, Wuxi City, and the real estate of No. X1 of a park in Binhu District, Wuxi City, under the name of his company. You Moumou stated: In 2018, in order to repay the debts of the case, he had transferred the real estate of No. X1 and X2 of a park in Binhu District, Wuxi City to a new material company, and the new material company did not pay the house payment, and the two parties agreed to offset the debt of the case at that time. Later, on April 8, 2020, the court ruled that You Moumou should repay the principal of the loan of 3,861,444.47 yuan and interest.
In this case, both an electrical appliance company and a new material company failed to provide evidence that the above-mentioned transfer of immovable property was resolved by the corporate authority of an electrical appliance company.
On December 9, 2021, the Binhu District People's Court of Wuxi City, Jiangsu Province, rendered the (2021) Su 0211 Min Chu No. 1240 Civil Judgment: rejecting the litigation claim of a data technology company. After the judgment was pronounced, a data technology company appealed against the original judgment. On March 22, 2022, the Intermediate People's Court of Wuxi Municipality, Jiangsu Province, rendered the (2022) Su 02 Min Zhong No. 983 Civil Judgment: rejecting the appeal and upholding the original judgment.
Grounds for the Trial
The effective judgment of the court held that although an electrical appliance company and a new material company signed a real estate transfer contract, combined with the private loan lawsuit between Yan Moumou (the legal representative of a new material company) and You Moumou (the deputy general manager and director of an electrical appliance company) and related evidence, there was no real transaction between an electrical appliance company and a new material company, but that an electrical appliance company used its own real estate to repay the loan owed by You Moumou to Yan Moumou, and Yan Moumou designated a new material company to receive the real estate. Therefore, there was no expression of intent to buy and sell real estate between an electrical appliance company and a new material company, and there was no act of transferring real estate for free or at a low price, and the revocation claim of a data technology company could not be established.
Article 7 of the Interpretation of the Supreme People's Court on the Application of the < Civil Code of the People's Republic of China > the Guarantee System stipulates that if the legal representative of a company violates the provisions of the Company Law on the procedures for the resolution of the company's external guarantee and enters into a guarantee contract with the counterparty on behalf of the company beyond his authority, the guarantee contract shall not be effective against the company if the counterparty is not in good faith. The legal consequence of invalidity is caused by the lack of an expression of intent by the company and the fact that the counterparty does not constitute a bona fide acquisition. Although the mortgage in this case can be compared with the above-mentioned guarantee act, although it has not been resolved by the shareholders' meeting, its legal consequences are not invalid, but it is not effective against an electrical company, and an electrical company or its shareholders have the right to choose whether to recognize it, and the right should be attributed to an electrical company or its shareholders, and a data technology company, as a creditor of an electrical company, has no right to claim invalidity by subrogation.
Summary of the trial
1. If the company uses its property to pay off the debts for the shareholders, and the transferee of the property pays the property consideration by eliminating the original creditor's rights, and the company's repayment behavior does not belong to the statutory circumstances of disposing of property rights and interests without compensation, and the transferee of the property does not know or cannot know that the act affects the realization of the creditor's rights of the company, the creditor exercises the right of revocation, and the people's court does not support it.
2. If the company pays off the debts for the shareholders without the resolution procedure, and the counterparty fails to conduct a reasonable review of the company's resolution procedure, the repayment will not be effective for the company, but the company or other shareholders have the right to choose whether to recognize, and the right to claim that it is not effective shall belong to the company or other shareholders, and the company's creditors have no right to subrogate.
Associate indexes
Articles 146, 538 and 539 of the Civil Code of the People's Republic of China
Article 16 of the Company Law of the People's Republic of China
Article 7 of the Interpretation of the Supreme People's Court on the Application of the > Guarantee System of the Civil Code of the People's Republic of China in <" (Fa Shi [2020] No. 28).
First instance: Civil Judgment of Binhu District People's Court of Wuxi City, Jiangsu Province (2021) Su 0211 Min Chu No. 1240 (December 9, 2021)
Second instance: Civil Judgment of Wuxi Intermediate People's Court of Jiangsu Province (2022) Su 02 Min Zhong No. 983 (March 22, 2022)