Behind the fight for the official seal: Who’s Dangdang?Interpretation of lawyers When things happen

Behind the fight for the official seal: Who’s Dangdang?Interpretation of lawyers “When things happen”
When Dangdang’s right to compete was staged again, Li Guoqing “snatched” the official seal of Dangdang Company, which attracted much attention. Subsequently, Dangdang Company’s open media communication would counterattack.Become the most lively financial news of the day.In addition to eating melons to see the excitement, is it illegal for Li Guoqing to win the official seal?Does Dangdang.com declare that the official seal is invalid?Can the official seal represent the right of control?How to split the shareholding of the husband and wife shop?Who owns the right to hold the son’s shares?Does Li Guoqing have the right to claim dividends?How can a husband-and-wife shop avoid “seizing power” farce?Conduct, Sauna, Yewang invited Han Xiao, a lawyer from Beijing Kangda Law Firm, and Zhao Zhan, a lawyer from Beijing Zhilin Law Firm, to conduct professional analysis on the above key issues.Did you grab the official sealSauna Night Net: Is it illegal for Li Guoqing to grab the official seal?Zhao Occupation: The act of grabbing the official seal may not be appropriate in terms of form, but whether it is illegal or not can not be judged simply. It involves the resolution of the board of directors and the resolution of the shareholders ‘meeting.When Dangdang first convened a shareholders’ meeting on April 24 to formulate a resolution, it decided to set up a board of directors, which then convened a meeting to formulate a resolution of the board of directors and elected Li Guoqing as chairman and general manager.Therefore, if these two resolutions are valid, although the act of grabbing the official seal may not be appropriate, it is not illegal.The key now is to judge the effectiveness of the resolutions of the board of directors and the shareholders ‘meeting, which we will continue to talk about.Han Xiao: In fact, the dispute over the control of the official seal is related to management disputes within the company. The state public power should not be overly involved, and the management of the official seal should vary from company to company.In judicial practice, there are relevant regulations regarding the custody of the company’s official seal.The current treatment is that the company must either follow the corresponding management system or the country ‘s compulsory regulations, but the country currently has no such regulations.Therefore, the right and wrong of the act of grabbing the official seal requires the company to make its own judgment, but we believe that it is not illegal.The company can resolve it through civil litigation. If Li Guoqing does not have copyright control rights over the company, then this behavior may violate the relevant provisions of the Property Law.Although the current news reveals that Li Guoqing was elected as the chairman of Dangdang.com, I think that the control of the official seal also needs to go through statutory procedures, and the act of snatching is still not proper.At present, Li Guoqing has doubts about the control of the company obtained by the resolution of the shareholders ‘meeting, because the two parties have different statements about his proportion in the shareholders’ meeting, and further review of the company’s regulations is required.If Li Guoqing does not obtain the control of the official seal in accordance with the “Company Law” and the company’s articles of association, then the official seal is an act of unauthorized possession. For such an act of unauthorized possession, you can request the return of the property.At the same time, in judicial practice, the official seal can also be replaced through a variety of actions, just directly through legal persons and companies, but how to prove that this is a company’s behavior, generally only the official seal can be agent, so this is a vicious circle.Sauna Nightnet: Can you regain control of the company by snatching the official seal?Or do you need other conditions?Han Xiao: In fact, the official seal does not equal the company’s control, and the company’s ownership rights need to be decided by an effective shareholders’ meeting.But there is a problem that China and foreign management systems are not the same. Many foreign countries have adopted the signature, they do not have the concept of official seal; but China recognizes the official seal, so the existence of the official seal can represent the company ‘s behavior at the surface review stage., Just like when you need to add an office seal, you need to have the authorization of the previous official seal.It can only be said that the official seal has a limited control over the company, but it does not mean that the company’s control is completely taken away.Zhao Occupation: We can look at this issue from two levels. First, from a legal point of view, has he passed the industrial and commercial registration change, although Dangdang now has a shareholders ‘meeting resolution and a board resolution, but Li Guoqing has not yet become aThe company’s directors and chairman, legal representative and general manager did not complete the industrial and commercial change registration.Under the current circumstances, despite getting a shareholder meeting resolution and board resolution, will the industry and commerce department approve it?Will he be registered for business changes?There is actually a lot of uncertainty.From this point of view, if he has not completed this change registration, at least in legal form, he has not achieved control of this company.Second, Li Guoqing’s control of the company actually needs to include de facto control.Li Guoqing just realized the first step-just get the official seal.But it is not enough to just get the official seal, there is also actual control over financial accounts, personnel and company management.Today Li Guoqing also said that getting the official seal is only the first step, followed by team formation, and then stationed in Dangdang.In fact, these steps have been completed before it is possible to actually control the company.However, under the control of legal legislation, some legal disputes may occur, which will ultimately be determined by the judiciary.Sauna Night Net: Dangdang has announced that all official seals will be invalidated. Is it necessary to go through some legal process to cancel the official seals?Or is it okay to unilaterally declare null and void?Zhao Occupation: There is a process for invalidation.First of all, there needs to be an announcement, the announcement has a certain period, and then you need to go to the public security department to engrave and file. If you want to carry out such procedures, if you only unilaterally declare it invalid, it may not be legally effective.I believe that Dangdang will have such actions in the future.But there is currently a problem. Attorney Han also mentioned just now, how do you prove that it is the company’s behavior to do these announcements or applications without the official seal?This is the paradox.So it still has such a difficult operation.In general, only a statement with an official seal has legal effect.Sauna Night Net: Li Guoqing used the official seal of Dangdang to send a statement. Can this statement now be regarded as a voice of the company?Or is it a legally valid statement?Han Xiao: In the case that the official seal has not been abolished, the statement is legal and valid and represents an act on behalf of the company. The official seal is an important document and tool for the company’s operation and management. The act of stamping the official seal is actually a way for a company to exercise its legal rights.At present, there are no relevant regulations on the whole, and it certainly belongs to the scope of company awareness.If Li Guoqing authorizes him to take the official seal, the company conducts an act of stamping.If this happens, it can basically be regarded as a company’s behavior.Even if this person does not have any position in the company, he can act as an agent of the company and exercise a corresponding right and a corresponding obligation.These are all possible.Therefore, it does not mean that Mr. Li is not in this company, he cannot act on behalf of the company.Sauna Night Net: Dangdang’s statement is that Li Guoqing no longer has any position in the company, but as a shareholder, does he have the right to control the official seal?Han Xiao: It depends on whether the company has corresponding regulations.In general, we all require the official seal to be held by the legal representative, or to be held by the company’s shareholders’ meeting or the board of directors.However, as I haven’t seen the related management files of Dangdang, this needs to be seen in detail.Zhao Occupation: The official seal is now practiced in Li Guoqing. He does n’t even have a position, just a shareholder, but he can also act as an authorized person and an agent on behalf of the company. This is no problem. Also officials, because there are now board and shareholders’ resolutions.If you want to overthrow Li Guoqing’s behavior, fundamentally, you need to invalidate the resolution of the shareholders’ meeting in order to achieve this. Otherwise, the current stalemate is difficult to solve.Including external statements like Dangdang, saying that the official seal is invalid. At present, it is believed that the official seal is completely invalid if it is not simply abolished.The statutory procedures for invalidating the official seal have not yet been completed. In this case, Li Guoqing may hold the official seal and sign a contract to the outside world, which may be effective.The 18% equity held by the child is the latest variable. Who owns the voting rights?Sauna Night Net: At present, Li Guoqing and Yu Yu have not divorced. What is the proportion of voting if they participate in the shareholders’ meeting?Zhao Occupation: This issue is somewhat controversial.During the duration of the relationship between husband and wife, and then set up a company, equity is the common property of the husband and wife, in principle called equity is divided equally.But this split is only when the divorce divides the property.When there is no divorce or the divorce proceedings have not ended, then each party has only nominal shares, and the voting rights should be exercised in accordance with this.Because although the property rights of the husband and wife are shared property, this property refers to ownership rights, and many of the equity rights are identity rights. Some of them, such as voting rights, are an identity right that is exclusive to nominal shareholders.At present, there are certain problems in voting for shares held by the actual holders without completing the divorce split.Han Xiao: We believe that the husband and wife joint property system has an internal effect between husband and wife. The effect of husband and wife joint property cannot break through their relativity, and cannot break and affect the effectiveness of the shareholder register and the publicity of industrial and commercial property rights information. The company’s shareholders should strictly abide by the publicly announced shareholding structure when conducting a vote. Otherwise, we actually believe that it violates the fundamentals of the limited company’s eligibility and fit and harms the interests of other shareholders.I think it is actually necessary to follow one of their own shares to vote.According to the relevant provisions of the “Company Law”, the procedures of the shareholders’ meeting, voting procedures, etc., should be stipulated by the company’s articles of association.A shareholder meeting will revise the company’s articles of association, increase the resolution to reduce the registered capital, and merge and split the dissolution and change the company’s resolution, and must be approved by more than 2/3 of the voting rights of the representatives.Therefore, if there is no divorce between Li Guoqing and his wife, the shareholders’ meeting will not be able to make effective resolutions. I think this statement is incorrect.Sauna Night: According to the information registered in the current industrial and commercial information system, Yu Yu holds more than 60% of the shares. Dangdang’s statement is that Yu Yu has 52 shares.23%, can Li Guoqing trigger a vote without divorce?Zhao Occupation: This issue is controversial. I personally think that the voting should be based on the distribution ratio shown in the industrial and commercial registration system. If the divorce is completed or the two parties have reached an agreement, they can use the actual shareholding ratio.Now there is a new variable in the situation. The children of both parties hold 18% of the shares. If the situation is true, even according to Li Guoqing ‘s algorithm, his actual share ratio is less than 46%, which may be less than 40%. It may be combined with other small shareholders.Not half.Sauna Yewang: Let’s talk about the issue of generation-to-generation holding, because their son’s equity is held by two husbands and wives, can the shareholder be able to exercise voting rights?Han Xiao: To hold the corresponding voting rights for copyright, you must have a statutory registration process in advance.If an anonymous shareholder wants to exercise the right to vote, it must be dealt with explicitly.Only with the approval of more than half of the other shareholders of the company can the shareholders be qualified to exercise their voting rights. If it has not undergone explicit processing, there is no corresponding voting right.Sauna Night Net: Just when it comes to registration, is it once registered in the business information system?Or the company’s internal charter?Han Xiao: Generally, we think that both should be registered accordingly. At present, we need to make effective judgment based on the company’s articles of association.Zhao Occupation: It is necessary to clear the source of the shares held on behalf. In judicial practice, signing a proxy agreement for holding instead of exercising the rights of shareholders, including voting rights and dividends, is a temporary agreement.In another case, his shares came from gifts from other shareholders.In general, the gift contract requires a budget. If there is no previous, the donor can be revoked.Unless charitable gifts cannot be revoked, some promise to donate and then do n’t.Notarized gift contracts cannot be revoked.This case, if it is said that there is a proxy, it will be very complicated, and it will become the focus of the divorce proceedings involving both parties.At present, we do not have a very comprehensive information, it is difficult to make a judgment.Sauna Nightnet: If, at that time, the sons of the two did not have this legal holding arrangement, if the sons are now of legal age, can they directly exercise their voting rights?Zhao Occupation: If the husband and wife share the common property as gifts, the son has no actual expenditure.Can the spouse cancel?It is possible to revoke the gift, but the question of whether to hold 9% or 18%.Han Xiao: If the child reaches the age of 18, he must be dealt with accordingly.If the property has been given before the divorce, and both parties agree, it is legal and valid.As long as you are of legal age, make changes accordingly.Sauna Nightnet: The gifted shares must go through a public registration process before they can continue to exercise their right to vote?Zhao occupation: yes.It is necessary to register the change of industry and commerce before it is a gift contract.If there is no change, it means that there is no actual budget.Husband and wife entrepreneurs should do well in advance to avoid discrimination disputes. Sauna Night Net: Because there are actually many husband and wife shops, there may be some allocations between the two couples in this entrepreneurial process.Should some agreement be made?Han Xiao: The husband-and-wife shop should make an arrangement based on the proportion of property rights, especially when it comes to family wealth inheritance, an effective regulation should be carried out.It is possible if there is an internal agreement and the industrial and commercial change registration is carried out at the same time.Marriage is very unstable now. Many companies, including founders, do not have an effective pre-marriage rule. We suggest that the clarity of the property after marriage may be more conducive to the company’s long-term development in the future.But this is a very difficult thing. It is actually very difficult to persuade the spouse to agree to the signature.Especially in the case of an old husband and a young wife, a notarization of pre-marital property in the suburbs of the capital is also one of the important ways to effectively avoid fair disputes.Zhao Occupation: The situation of a company where the husband and wife are co-founders is more complicated and more prone to problems. The battle for control of Dangdang continued for many years. When it is necessary to start a business or when the equity is established, the equity setting is detailed and a shareholding structure is set up to avoid these problems in advance.Therefore, readers are also advised here, if there is a relevant entrepreneurship, or if there is such a business operation situation, be prepared in advance and plan ahead.Sauna Night Net: If the two parties really divorce, their equity must be divided equally?Are there any other factors that will affect the distribution of property rights?Zhao Occupation: This company is jointly funded by the husband and wife, and the equity certificate is the joint property of the husband and wife. The part related to child support may need to be discussed according to the specific situation.If we do not consider this issue, we can only judge the shares held by each of his husband and wife. In principle, they are the joint property of the husband and wife and should be divided equally.Han Xiao: There is a high probability of split.Divorce divides the property and has certain relations with certain loyalty obligations, but they are basically evenly distributed.If the act of concealing significant assets during the marriage continues, it will have a certain impact on the couple’s division of property.Is the child a minor?It will also have a certain impact on the husband and wife’s division of property, and the remaining factors will not affect much.Sauna Night: Towards a dividend request today, Li Guoqing asked Dangdang to pay dividends. As a shareholder, is he entitled to ask the company to pay dividends?Zhao Occupation: Dividends are a basic right of shareholders, and one of the minimum rights of shareholders in terms of company law.Of course, there are many factors to consider whether the company actually pays dividends. From the perspective of company law, if no dividends have been paid for several consecutive years, but profits are made, shareholders can demand dividends.Li Guoqing’s request for dividends cannot be said to be totally unreasonable, but from the point of view of Dangdang’s company, no dividends are not meant to resist Li Guoqing. Perhaps it is more for the company’s own development.Han Xiao: Based on his shareholder status, the shareholder can fully request a dividend, whether to make a decision, or whether to make a decision on the company scale. He wants to merge the relevant, a resolution of the shareholders’ meeting or the board of directors. Depends on an agreement in the company’s corresponding charter, dividends are not inevitable, it can only be said that he has the right to pay dividends.Sauna, Ye Wang Lu Yifu Chen Weicheng Cheng Zijiao Intern Dana Editor Xu Chao Proofreading Chen Diyan