Viewpoint... The legal relationship between the transfer agreement of state-owned property rights and the placement of employees after the transfer of property rights.

Published:

2021-12-29

1. brief An investment holding company and a company signed the Agreement on the Transfer of State-owned Property Rights, which agreed on the principle that the employment and placement of employees should follow the asset business and agreed that the transferee of property rights would undertake to carry out the employment and placement of employees of the target company in accordance with the relevant provisions and the provisions of the restructured employee placement plan. After the signing of the Agreement on the Transfer of State-owned Property Rights, an investment holding company has fulfilled the registration of the equity change of the target company. However, after the signing of the property rights transfer agreement, the property rights transferee and the target company did not fulfill the obligation of employee placement, resulting in long-term letters and visits by employees, forming a group incident. After that, an investment holding company paid hundreds of millions of yuan in employee placement fees from the perspective of easing labor conflicts and harmonious social relations. The target company and the property rights transferee believe that the State-owned Property Rights Transfer Agreement stipulates that an investment holding company has the coordination obligation to change the land auction of the target company to commercial and residential land and return the land income. As the land income has not been returned, the target company and the property rights transferee do not have the funds to fulfill the employee resettlement obligation. The plaintiff's investment holding company shall bear the increase in resettlement costs due to the delay in fulfilling the resettlement obligation. 2. Case Analysis An investment holding company has repeatedly litigated with the transferee of property rights and the target company on the issue of employee placement, and has now been judged by the Intermediate Court, the High Court and the Supreme Court on the subject of employee placement obligations and the basis of the claim of an investment holding company. (I) clarify the subject and responsibility of the target company's employee placement obligations after the transfer of property rights, and clarify the legal relationship between the advance payment of employee placement costs. 1. From the perspective of the historical evolution of the restructured enterprise, the target company has been changed into the current company through restructuring, the legal entity continues, and the labor relations of employees are naturally postponed, including continuing to sign labor contracts, paying social insurance, handling employee retirement procedures, etc. The target company has not changed as an employing unit, so it is necessary for the target company to be responsible for the obligation of employee resettlement. 2. According to the agreement on the transfer of property rights, the new company will receive all the employees of the original enterprise after the restructuring according to the principle that the employment of employees follows the asset business. According to the contract, the "Restructured Employee Resettlement Plan" is legally binding on the new company and the property rights transferee, and the property rights transferee undertakes to ensure that the new company strictly fulfills the corresponding rights and obligations to the employees in accordance with the resettlement plan. The Restructured Employee Resettlement Plan further clarifies that the subject of the employee resettlement obligation is the new company after the restructuring, and that the transferee of property rights provides guarantees by way of commitment in the contract, and shall also be liable for the debts incurred by the resettled employees and the resettled employees. 3. After the transfer of property rights, the transferor of state-owned property rights has no obligation to undertake the resettlement of employees, but continues to pay the resettlement expenses of employees, which is an act of advance payment. According to the above analysis, since the transferor of state-owned property rights has advanced the cost of employee placement after the transfer of property rights, the new company should have the obligation to repay the advance party after the restructuring. (II) simplify the legal relationship, another lawsuit to deal with the defendant's target company, property rights transferee's claims for breach of contract. 1. The legal relationship of the contract for the transfer of state-owned property rights is different from the labor legal relationship between the target company, the transferee of property rights and the placement of employees. According to the "Property Rights Transfer Agreement" and "Employee Resettlement Plan", or based on the purpose of enterprise restructuring and related restructuring norms, the property rights transferee and the target company have always been the main body responsible for the resettlement of employees and expenses, and shall bear all the resettlement obligations to the employees in accordance with the law, including all the resettlement expenses before and after the restructuring. This is the labor legal relationship between the two companies and their employees. Regarding the property rights transferee, the target company claims that because an investment holding company is lazy to perform the so-called breach of contract, such as land bidding and listing, resulting in the actual cost of employee placement to expand, resulting in its loss, belongs to the property rights transferee and an investment holding company between the contractual legal relationship. With regard to the above-mentioned different legal relationships, the property rights transferee and the target company may file a separate contract dispute lawsuit to claim losses caused by the breach of contract by an investment holding company, but because they do not belong to the same legal relationship, they may not be dealt with in the same case. 2, the property rights transferee, the target company did not file a counterclaim, nor did it claim the loss arising from the default of an investment holding company to prove, so the property rights transferee, the target company's breach of contract should not be dealt with in the same case. Counterclaim is different from the response defense, counterclaim is the defendant against the plaintiff's lawsuit, is an independent lawsuit, has the nature of the lawsuit. The purpose of the defendant's defense is to prove that the plaintiff's claim is partially or completely unfounded by rebuttal, and the purpose of the defendant's counterclaim is to offset or annex the claim of this claim, or to make the claim of this claim lose its meaning. In this case, the property rights transferee, the target company because of the long-term failure to fulfill the obligation of employee placement, so the lack of actual payment of employee placement costs of financial documents, so can not file a counterclaim, only through the way to respond to the defense against an investment holding company's claims. As analyzed above, the defendant's defense can be dealt with separately because it is not the same legal relationship as the plaintiff's claim of an investment holding company. It is based on the above-mentioned legal analysis that the effective judgment supported an investment holding company's claim for the return of hundreds of millions of yuan of employee placement costs to the property rights transferee and the target company, and made it clear that the property rights transferee and the target company could separately claim the loss of breach of contract. 3. practice experience summary Never forget the past, the future guide. In order to avoid the dispute between the placement of employees after the transfer of property rights and the order in which the original transferor of property rights performs the obligations of the contract, it is suggested that it should be clearly stipulated in the property rights transfer contract that the employee placement obligations of the target company should not be based on the completion of the obligations of the transferor of property rights in the property rights transfer agreement as a prerequisite for the performance of the employee placement obligations, the target company or the new company after the restructuring shall fulfill the obligation of employee resettlement on time in strict accordance with the employee resettlement period stipulated in the employee resettlement plan. In addition, in the course of the implementation of the agreement in this case, the land and real estate under the name of the new company after the restructuring have been changed to the name of the property rights transferee, in order to prevent the property rights transferee from transferring assets to evade the obligation of employee placement, the transferee of property rights, the actual controller of the transferee of property rights, etc. may be required to bear joint and several liability for the settlement of the employees of the new company under the "Property Transfer Agreement" and the obligations of the new company under the "Restructured Employee Resettlement Plan" and the debts arising therefrom. 4. relevant legal provisions Article 525 of the the People's Republic of China Civil Code If the parties owe debts to each other and there is no order of performance, they shall be performed at the same time. One party has the right to refuse its request for performance before the other party performs. A party has the right to reject its corresponding request for performance when the other party's performance of the debt is not in conformity with the contract. Article 552 If a third party agrees with the debtor to join the debt and notifies the creditor, or if the third party indicates to the creditor that it is willing to join the debt, and the creditor does not expressly refuse within a reasonable period of time, the creditor may request the third party to assume joint and several debts with the debtor within the scope of the debt it is willing to assume. Article 577 If one of the parties fails to perform its contractual obligations or the performance of its contractual obligations is not in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Article 687 If the parties agree in the guarantee contract that if the debtor is unable to perform the debt, the guarantor shall bear the responsibility for the guarantee, it shall be a general guarantee. The Supreme People's Court on the application<中华人民共和国民法典>The provisions of the Civil Code shall apply to civil disputes arising from legal facts after the implementation of the Civil Code. Civil disputes arising from legal facts prior to the implementation of the Civil Code shall be governed by the laws and judicial interpretations of the time, unless otherwise provided by the laws and judicial interpretations. The legal facts before the implementation of the Civil Code continue until after the implementation of the Civil Code. The provisions of the Civil Code shall apply to civil disputes arising from the legal facts, unless otherwise provided by law or judicial interpretation. The Supreme People's Court on the application<中华人民共和国民法典>Interpretation of the guarantee system (2021.1.1) Article 36 If a third party provides a creditor with a similar commitment document such as a shortfall, liquidity support, etc. as a credit enhancement measure, it has the intention to provide security, and the creditor requests the third party to assume the responsibility for the guarantee, the people's court shall deal with it in accordance with the relevant provisions of the guarantee. If the commitment document provided by the third party to the creditor has the intention of joining the debt or sharing the debt with the debtor, the people's court shall determine that the debt is joined under Article 552 of the Civil Code. If it is difficult to determine whether the commitment document provided by the third party in the preceding two paragraphs is a guarantee or a debt, the people's court shall determine it as a guarantee. If the commitment documents provided by the third party to the creditor do not conform to the provisions of the preceding three paragraphs, and the creditor requests the third party to bear the guarantee liability or joint and several liability, the people's court shall not support it, but it shall not affect its request to the third party to perform the agreed obligations or bear the corresponding civil liability on the basis of the commitment documents. Article 51 of the the People's Republic of China Civil Procedure Law, the plaintiff may abandon or change the claim. The defendant may admit or refute the claim and has the right to file a counterclaim. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 126 The plaintiff adds claims, the defendant makes counterclaims, and the third party makes claims related to this case, which may be tried together. Article 221 If a dispute arises on the basis of the same fact and the parties bring separate suits in the same people's court, the people's court may try the case together. Article 233 The parties to a counterclaim shall be limited to the scope of the parties to the claim. If the counterclaim is based on the same legal relationship with the claims of this suit, there is a causal relationship between the claims, or the counterclaim is based on the same facts as the claims of this suit, the people's court shall hear the case together.</中华人民共和国民事诉讼法></中华人民共和国民法典></中华人民共和国民法典>

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