Viewpoints... Legal analysis of issues related to the shareholder roster system.

[Chapter II Establishment and Organizational Structure of a Limited Liability Company] [Article 26 Paragraph 1]: The registered capital of a limited liability company shall be the amount of capital contribution subscribed by all shareholders registered with the company registration authority.

[Chapter II Establishment and Organization of a Limited Liability Company] [Article 32]: A limited liability company shall keep a register of shareholders, which shall record the following matters: (1) the names and domiciles of the shareholders; the amount of capital contribution of the (II) shareholders; (III) the number of the certificate of capital contribution. Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders. The company shall register the names of the shareholders with the company registration authority; if the registration items are changed, the change registration shall be carried out. If the registration is not registered or the registration is changed, it shall not be used against a third party.

[Chapter V Special Provisions on the Organization of Listed Companies] [Article 130]: Where a company issues registered shares, it shall keep a register of shareholders, which shall record the following items: (1) the name and domicile of the shareholders; the number of shares held by each shareholder of the (II); the number of shares held by each shareholder of the (III); the date on which each shareholder of the (IV) acquired the shares. Where bearer shares are issued, the company shall record the number, serial number and date of issue of the shares.

[Chapter IX Company Merger, Division, Capital Increase, and Capital Reduction] [Article 179, Paragraph 2]: When a company increases or decreases its registered capital, it shall register the change with the company registration authority in accordance with the law.

[Chapter 12 Legal Liability] [Article 211 Paragraph 2]: When a company's registered items are changed, if the relevant change registration is not handled in accordance with the provisions of this Law, the company registration authority shall order it to register within a time limit; If it fails to register within the time limit, a fine of not less than 10,000 yuan but not more than 100,000 yuan shall be imposed.

Article 23: After the parties have fulfilled their capital contribution obligations or acquired equity in accordance with the law, the company has not issued a capital contribution certificate in accordance with the provisions of Articles 31 and 32 of the Company Law, recorded in the register of shareholders and registered with the company registration authority. If the parties request the company to perform the above obligations, the people's court shall support it.

Article 2: The establishment, alteration and termination of a limited liability company and a joint stock limited company (hereinafter referred to as the company) shall be registered in accordance with these Regulations.

Article 31 Where a company increases its registered capital, it shall apply for registration of change within 30 days from the date of making the resolution or decision on change. Where a company reduces its registered capital, it shall apply for registration of change after 45 days from the date of the announcement, and shall submit the relevant certificate of the company's announcement of the reduction of registered capital published in the newspaper and the explanation of the company's debt settlement or debt guarantee.

Paragraph 1 of Article 34: Where a limited liability company changes shareholders, it shall apply for registration of change within 30 days from the date of change, and shall submit the main qualification certificate of the new shareholders or the identity certificate of natural persons.

Article 50 A limited liability company shall keep a register of shareholders, which shall record the following matters: (1) the name or names and domicile of the shareholders; the amount and time of capital contribution of the (II) shareholders; the number of the certificate of capital contribution of the (III); and the time when the (IV) acquired and lost the qualifications of shareholders. Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders.

Article 87 Where a shareholder transfers his equity, he shall notify the company in writing, request to change the register of shareholders and register the change with the company registration authority, and the company shall not refuse without justifiable reasons. If the company refuses or fails to reply within a reasonable period of time, the transferor or transferee may bring a lawsuit to the people's court in accordance with the law.

Article 88 After the transfer of equity in accordance with this Law, the company shall promptly cancel the certificate of capital contribution of the original shareholders, issue a certificate of capital contribution to the new shareholders, and amend the records of the relevant shareholders and their capital contributions in the articles of association and the register of shareholders accordingly. The amendment to the articles of association does not need to be voted on by the shareholders' meeting.

Article 104 A company limited by shares shall prepare a register of shareholders and keep it in the company, except for the registration of shares in a securities registration and settlement institution established in accordance with the law. The register of shareholders shall record the following matters: (1) the name or name and domicile of the shareholders; the type and number of shares subscribed for by each shareholder of the (II); the number of the shares issued by the (III) in paper form; (IV) the date on which each shareholder acquired the shares.

Article 111 A company limited by shares shall keep its articles of association, register of shareholders, corporate bond stubs, minutes of meetings of the shareholders' meeting, minutes of meetings of the board of directors, minutes of meetings of the board of supervisors and financial accounting reports in the Company.

Article 170 The transfer of shares shall be carried out by the shareholders by endorsement or by other means prescribed by laws or administrative regulations; after the transfer, the company shall record the name or names and domicile of the transferee in the register of shareholders. The register of shareholders shall not be changed within 20 days prior to the convening of the shareholders' meeting or within 5 days prior to the base date on which the company decides to distribute dividends. Where the law provides otherwise for the registration of changes in the register of shareholders of listed companies, such provisions shall prevail.

1. The record of the register of shareholders and the registration of the registration authority are the two main forms of registration of the rights of shareholders of a company. The former belongs to the internal registration of the company, which is the basic basis for determining the identity of the shareholders of the company, while the latter can protect the rights of shareholders through the confrontation of external publicity. In judicial practice, according to the different functions of registration, commercial registration is divided into right registration and declaration registration. Right registration has the effect of creating right subjects or legal relations. If it is not registered, it cannot produce corresponding rights or legal relations. Declaration registration means that registration does not serve as the basis for changing the gain or loss of rights, but only has the effect of declaring rights. The consequence of non-registration is that it cannot fight against bona fide third party. Under the premise that the basic legal documents (equity transfer contract, capital increase contract, internal resolution, etc.) are available in accordance with the law, the record of the register of shareholders is closer to the registration of rights, while the registration of the registration authority is clearly a declaration registration. Therefore, the author believes that when investors obtain the status of shareholders of the company through new establishment, capital increase, transfer, etc., they should pay attention to the relevant agreements and internal resolutions to clarify the company's obligation to amend the register of shareholders and issue a certificate of capital contribution, and confirm that the company has fulfilled the above obligations in a timely manner after the basic legal documents take effect.

2. The "Company Law" has relevant provisions on equity changes caused by equity transfer (the company's registered capital remains unchanged), [Article 32] of the "Company Law" [Chapter II Establishment and Organizational Structure of Limited Liability Companies] and [Chapter V Special Provisions on the Organizational Structure of Listed Companies] [Article 130], but there are no clear provisions for unlisted company limited by shares. It is worth noting that the "Company Law (Revised Draft)" has paid attention to this point and has made useful supplements in Article 104.

3. According to [Article 2] of [Chapter 1 General Provisions] of the "Company Law", "The company referred to in this Law refers to a limited liability company and a joint stock limited company established within the territory of China in accordance with this Law", it can be seen that [Chapter 9 Company Merger, Division, Capital Increase, Capital Reduction] [Article 179 Paragraph 2] "A company increases or decreases its registered capital, the scope of the restriction includes limited liability companies and joint stock limited companies. It can be seen that according to the current law, for non-listed joint stock limited companies, although the change of equity caused by share transfer is not explicitly required to go through industrial and commercial registration (the author thinks that the regulation is based on the comprehensive consideration of the large number of shareholders of joint stock limited companies and the default need not to obtain the consent of other shareholders), however, when the registered capital changes (capital increase, capital reduction), it is still required to register with the registration authority.

According to Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases (2020 Amendment), the parties may raise a limitation of action defense against claims. It can be seen that the object of the statute of limitations is the right of claim, and the question of whether the right of claim recorded in the register of shareholders applies to the statute of limitations depends on whether the right of claim recorded in the register of shareholders belongs to the right of claim. The mainstream view of the judiciary is that the premise of the right of claim recorded in the register of shareholders is the confirmation of the qualification of shareholders, which belongs to the confirmation of the claim, belongs to the right of procedural claim, not the right of claim (entity claim), and does not apply the statute of limitations.

Relevant jurisprudence:

1.(2022) Yue 01 Min Zhong No. 12426: Civil Judgment of Second Instance on Dispute over Shareholder Qualification Confirmation by Huang Xiuhua and Guangzhou Wofu Mould Co., Ltd.

The court held that: equity includes property rights, creditor's rights, personal rights and other content, and property rights and personal rights have the world and exclusive, do not apply the statute of limitations. This case is a dispute over the confirmation of shareholder qualification, and Huang Xiuhua only requests confirmation that he has the shareholder qualification of Wofford, which does not involve the content of the claim and is not subject to the limitation of the statute of limitations.

2.(2022) Liao 01 Min Zhong No. 11271: Second Instance Judgment on Dispute over Shareholder Qualification Confirmation between Danan Non-staple Food Joint Store and Li Xueni, Shenhe District, Shenyang City

The court held that, according to the provisions of Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases, "The parties raise the defense of the limitation of action against the right of claim", the object of the limitation of action is the right of claim, which is mainly applicable to the claim for payment. This case is the confirmation of the action, and the confirmation of the action belongs to the procedural claim right is not the entity claim right, more non-claims claim, since there is no room for the application of the statute of limitations.

As mentioned earlier, both the record of the register of shareholders and the registration of the registration authority are the two main forms of registration of the rights of shareholders of a company. The former belongs to the internal registration of the company, which is the basic basis for determining the identity of the shareholders of the company, and the legal nature is closer to the registration of rights, while the latter can protect the rights of shareholders through the confrontation of external publicity, and the legal nature belongs to the declaration registration.

The inconsistency between the record in the register of shareholders and the registration authority is mostly found in the failure to register the industrial and commercial change or update the register of shareholders in time after the company's equity change (equity transfer, capital increase, etc.). At this time, the real reason for the inconsistency between the record in the register of shareholders and the registration authority shall be judged according to the basic legal facts, and whether the "new shareholder" has been approved by the company or actually exercised the shareholder rights shall be judged.

However, it should be noted that the register of shareholders is not an authorized registration in the full sense, that is, the qualification of shareholders cannot be determined solely by the register of shareholders, and investors who are not recorded in the register of shareholders may also claim their qualification and rights of shareholders by proving that they have been recognized by the company or have actually exercised their rights as shareholders.

Relevant jurisprudence:

1.(2021) Yun 0102 Min Chu No. 15859: Zeng Delong and Gao Yunquan's Civil Judgment of First Instance on Disputes over Donation Contracts

The court held that the plaintiff and the defendant, as persons with full civil capacity, signed the three resolutions of the shareholders' meeting to confirm that the resolutions of the shareholders' meeting were the true intentions of the original and the defendant, which did not violate the mandatory provisions of laws and administrative regulations and were legal and effective. Therefore, the court confirmed the free transfer of the contractual relationship between the plaintiff and the defendant... And it can be seen from the amendments to the articles of association of Kunzhou Company and the two minutes of shareholders submitted by the defendant, all shareholders of Kunzhou Company recognize that the shares held by the plaintiff in Kunzhou Company have been transferred to the defendant free of charge, and the three resolutions of the shareholders' meeting are binding on the rights and obligations of the shareholders. The register of shareholders recorded in the articles of association of the company is the basis for shareholders to obtain their identity as shareholders and exercise their rights as shareholders, while the plaintiff is no longer a shareholder in the register of shareholders of Kunzhou Company. According to Article 32 of the the People's Republic of China Company Law, failure to register the change of shares does not lead to the legal consequences of invalidity of the change of shares, and failure to register the change of shares can only have the effect of not opposing a third party. According to the provisions of Article 176 and Article 509 of the the People's Republic of China Civil Code, both the plaintiff and the defendant shall perform their obligations in accordance with the agreement, and the plaintiff's failure to cooperate with the registration procedures for equity change as agreed constitutes a breach of contract.

2.(2018) Yun 23 Min Zhong No. 615: xiao Yingguang and Yuanmou County Department Store Trade Wholesale Co., Ltd., Gong Cuihua, Luo Shaohua, Wen Zhimei, Zhou Junhong, Chen Yongxiang, Liao Shuangquan, Yang Haiguang, Chen Yuli, Zhang Guangyan, Wang Ruyuan, Liu Hongmei, Chen Xiuhong, Jiang Rongju, Duan Yan, Pan Yinghong, Yang Zie Hongliang, Yang Lijia, Yang Jinyan, and Examine Civil Dispute on Shareholder Qualification Confirmation

The court held that Xiao Yingguang submitted his resignation to Yuanmou County Department Store Trade Wholesale Co., Ltd., voluntarily transferred his shares and received the share payment paid by the company. Although Yuanmou County Department Store Trade Wholesale Co., Ltd. did not change its industrial and commercial registration for some reason, the company amended its articles of association through a resolution of the shareholders' meeting and issued a certificate of capital contribution to the shareholders of the company, xiao Yingguang is no longer a shareholder of the company. In the event that the list of shareholders in the industrial and commercial registration is inconsistent with the register of shareholders retained by the company, the internal confirmation of the identity and share of the shareholders shall be based on the register of shareholders retained by the company. Therefore, Xiao Yingguang has actually lost the shareholder qualification of yuanmou county Department Store Trade Wholesale Co., Ltd. and his request to confirm himself as a shareholder of yuanmou county Department Store Trade Wholesale Co., Ltd., to enjoy 4% equity (50000 yuan) of the company, to issue equity certificates or capital contribution certificates, and to reissue dividends of 300000 yuan from 2007 to 2016 is inconsistent with the facts and legal provisions, and the court will not support it.

3.(2016) Supreme Farmin Shen No. 238: Yin Jiqing, Rizhao Juntai Real Estate (Group) Co., Ltd., Wang Xiaoyi and other shareholders' registers record dispute complaints and apply for civil rulings

The court held that: to determine the establishment of the status of shareholders of a limited liability company, in accordance with the provisions of the Company Law and the relevant judicial interpretation, from the capital contribution, the articles of association of the company, the register of shareholders, industrial and commercial registration, the certificate of capital contribution, whether the actual exercise of shareholders' rights and other factors comprehensive examination to determine the qualifications of shareholders.

The qualification of shareholders and the right to claim payment of equity consideration are not the same right, the former is the procedural right of claim, the latter is the substantive right of claim, whether the original shareholders can claim to change the register of shareholders on the grounds that the new shareholders have not paid the consideration, there is no factual and legal basis.

Relevant jurisprudence:

1.(2018) Hu 01 min zong No. 10057: ye zhengyao v. Shanghai lvming environmental protection technology co., ltd. civil judgment of second instance in the case of dispute over the record of shareholders

Court view: It is important to emphasize that equity is not a property right, it is a compound right. ...... Stocks and shareholder registers are all carriers of rights, only evidence of shareholder identity. Industrial and commercial registration is only against others, not proof of rights. In short, the debt to the company formed by the shareholders' contribution to the company is realized through the company's confirmation. Green Ming Company has a factual basis for the process of changing shareholders in the register of shareholders and is not contrary to the law. Ye Zhengyao sued Lvming Company on the basis of a dispute over the record of shareholders, defending the error of changing the register of shareholders on the grounds that there was no share transfer between Ye Zhengyao and Guo Wangyu, Guo Wangyu did not pay the consideration, and the contract was not fulfilled, and demanded that Guo Wangyu be changed to Ye Zhengyao, without factual and legal basis.

According to the relevant provisions of the Company Law, after the establishment of a limited liability company, a certificate of capital contribution shall be issued to the shareholders. The certificate of capital contribution shall state the following matters: (1) the name of the company; the (II) and date of establishment of the company; the registered capital of the (III) and the company; the name or name of the (IV) and shareholders; the number of the (V) and the date of issuance of the certificate of capital contribution. The capital contribution certificate shall be sealed by the company. After the establishment of a limited company, a register of shareholders shall be kept, recording the following matters: (1) the name or name and domicile of the shareholders; the amount of capital contribution of the (II) and shareholders; and the number of the (III) and the certificate of capital contribution. Therefore, the plaintiff's claim has factual and legal basis and should be supported.

Relevant jurisprudence:

1.(2019) Zhejiang 11 Minzong No. 815: Lishui Fengyuan Storage Co., Ltd. and Yao Hongfen's Register of Shareholders Record Disputes Civil Judgment of Second Instance

In the second instance of the case, the appellant Fengyuan Storage Company submitted a register of shareholders, a certificate of capital contribution and a change of registration, pending the certificate: the appellant's request for the appellant to issue a certificate of capital contribution and the obligation to prepare the register of shareholders has been fulfilled. The appellee Yao Hongfen cross-examined that there was no objection to the registration of the change, that the certificate of capital contribution did not comply with the provisions of Article 31 of the Company Law and did not specify the amount and date of the capital contribution, and that the register of shareholders did not specify the number of the capital contribution certificate.

The court held that the appellant Fengyuan Warehouse Company believed that it had fulfilled the obligation of recording shareholders, and the appellant's reason for appeal could not be established. First of all, according to the relevant provisions of the Company Law, after the establishment of a limited liability company, it should issue a certificate of capital contribution to shareholders and prepare a register of shareholders, but the register of shareholders and the certificate of capital contribution submitted by the appellant in the second instance did not meet the requirements of the Company Law, the performance is clearly flawed and does not prove that the appellant has fulfilled its obligations. Secondly, the court mediation and equity change registration procedures and the appellant company should issue a certificate of capital contribution to shareholders and maintain a register of shareholders are not the same concept, mediation and change registration procedures can not replace the appellant to fulfill its legal obligation to issue a certificate of capital contribution to shareholders and maintain a register of shareholders.