Source: Shanghai Pudong Court
Transferred from: Shanghai Pudong Court
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Rich
It is the dream of many people
Financial
Become more and more people
A way to get close to the dream of getting rich
But there are also people
Straighten out
The money is gone
This issue of Pufa Lecture Hall
It depends on a variety of cases
Experience a commercial judge who entrusts financial management
Give you a guide to judicial protection for effective pit avoidance
09:10
(Click to view the video)
Lecturer on the rule of law in this issue
Zhang Yixiang, born in December 1989, is a member of the Communist Party of China, holds a master's degree from East China University of Political Science and Law, and is currently a judge in the Commercial Trial Division of the Pudong Court. He has won the honors of Outstanding Communist Party Member of Shanghai Pudong Court, Outstanding Student of Zhiyuan Talent Class, Best Debater, Pudong New Area Commendation and so on.
Yao Facai and the staff of Qianduoduo Company verbally reached a entrusted financial management agreement, and out of trust, Yao Facai directly transferred 1 million yuan.
After a year, Yao Facai, who had never seen money, came to the court to sue, demanding that the entrusted financial relationship with Qianduoduo Company be terminated and the investment funds returned. Qianduoduo Company denied that there was a entrusted financial relationship between the two sides, believing that it was only to help Yao Facai handle investment procedures.
The focus of the dispute in this case was whether the entrusted financial relationship between the two parties was established.
Upon review, the court found that Yao Facai was the plaintiff of the "three noes": there was no written agreement, no evidence to prove the existence of an oral agreement on entrusting financial management, and no way to prove that the defendant had received remuneration. Obviously, based on only one bank transfer record, the court cannot determine the entrusted financial relationship.
Yao Facai saved another 1 million yuan, he carefully selected the stable money company, signed a written agreement, the agreement stipulates: if there is a loss in a year, the stable money company will bear all losses, and guarantee 100% profit.
After a year, Yao Facai, who could not see the money, came to the court again to sue, demanding that the stable money company pay 1 million yuan for investment and 1 million yuan for entrusted financial management income.
Can Yao Facai get rich this time?
Regarding the validity of entrusted financial management contracts, Article 143 of the Civil Code stipulates that civil juristic acts that meet the following conditions are valid: (1) the actor has the corresponding capacity for civil conduct; (2) the intention is true; (3) it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs.
There is no doubt that the entrusted financial management contract is invalid in the case of the entrusted institution not obtaining the qualification of entrusted financial management, or the entrusted institution engaging in financial illegal and criminal activities under the guise of entrusted financial management. But what about the validity of a consignment contract with a guarantee clause?
The warranty clause is broadly divided into the following three types:
1. Guaranteed fixed return clause for principal and interest.
This kind of situation is "called entrusted financial management, but it is actually a lending relationship", and it should actually be handled in accordance with the provisions of the law on private lending. The legal relationship claimed by the parties directly affects the final judgment. Please pay attention to the judge's explanation during the trial.
2. Guaranteed minimum return clause for principal and interest.
3. Guarantee that the principal amount will not be damaged.
There is still a dispute over the validity of the guarantee clause in the latter two types of entrusted financial management contract disputes. But it is clear that companies are more heavily regulated than natural persons.
As far as commercial adjudication is concerned, it is generally believed that the guarantee clause makes the civil rights and obligations of both parties unbalanced, which is not in line with the basic principles of civil and commercial law, subverts the legal system composition of entrusted agency, and also violates the principle of fairness and the basic law of the market of civil law, and should be invalid. The clause is the decisive factor that promotes the two parties to reach an agreement, which belongs to the purpose clause or core clause of the entrusted wealth management contract, and cannot become a relatively independent part of the invalid part of the contract, so the invalidity of the guarantee clause leads to the overall invalidity of the entrusted financial management contract.
Article 157 of the Civil Code stipulates that after a civil juristic act is invalid, revoked or determined not to be effective, the property acquired by the actor as a result of the act shall be returned; if it cannot be returned or is not necessary, it shall be compensated at a discounted price. The party at fault shall compensate the other party for the losses suffered as a result; if each party is at fault, it shall bear corresponding responsibilities.
The guarantee clause is a temptation of the trustee, attracting the client to take out the assets, in the case of invalid contract, the trustee will bear greater civil liability, the company that is willing to legally sign the guarantee clause has a greater chance of irregularity, even if the court decides that the parties get back most of the principal, the result of enforcement also depends on the solvency of the executor, in practice, there is often a property available for enforcement by the executor, and the "dream of getting rich" can only be shattered again and again.
Yao Facai listened carefully to the lectures, avoided all the pits in front of him, saved good money, chose to trust the company, signed a good contract, and after a year he finally made a million!
But after the contract expired, the boss of the trustworthy company closed the door and evaporated!
People with basic legal knowledge choose to sue the company; if they believe that they are suspected of criminal offenses such as fraud or non-smoking, they shall report the case to the public security organs for handling. According to the Provisions of the Enterprise Bankruptcy Law, creditors may also apply to the court for reorganization or bankruptcy liquidation of debtors who are unable to pay off their debts as they fall due.
At the same time, the Company Law of the People's Republic of China and its series of judicial interpretations are a big treasure!
Under normal circumstances, the company is liable for the debts of the company with all its assets, and the shareholders are liable to the company up to the amount of capital contribution or shares subscribed. However, under specific circumstances, the limited liability of shareholders can be broken, and Article 20 of the Company Law stipulates that if a shareholder of a company abuses the independent status of a corporate legal person and the limited liability of shareholders to evade debts and seriously harm the interests of the company's creditors, it shall bear joint and several liability for the debts of the company. In addition, in cases that comply with specific legal provisions, such as shareholders withdrawing capital contributions, and one-person shareholders cannot prove that the company's assets are independent of the shareholders' assets, the corresponding shareholders can also be investigated for joint and several liability.
Even if the company is deregistered, there are remedies, for example, creditors who fail to declare their claims in a timely manner and have not been paid off can hold the liquidation team members liable for failing to perform their notification or announcement obligations in accordance with the law, and if the liquidation team implements the unconfirmed liquidation plan and causes losses to creditors, it should compensate. If the shareholders of a limited liability company, the directors and controlling shareholders of a joint-stock limited company neglect to perform their obligations, resulting in the loss of the company's main assets, account books, important documents, etc., and it is impossible to liquidate, the creditors may claim that they bear joint and several liquidation liability.
As the saying goes, money can't be earned
The pits are also innumerable
Guard the money bag
The first thing to do is to be vigilant
There are pits that do not jump
All roads lead to Rome
Articles and regulations are subject to liability
Don't be afraid to hide your responsibilities deeply
As long as you sue the right person and get the proof
Even if there are many twists and turns
The road to riches is still bright
No matter where you go
Wind and rain
The People's Court has been guarding you