Company Litigation Study... Interpretation of the practical points of the company's license return dispute.
Published:
2020-12-04
Foreword
The dispute over the return of company license is one of the causes of civil cases. Generally speaking, company license includes but is not limited to the company's official seal, financial seal, special invoice seal, special branch seal, business license, social security registration certificate, etc. The use of company license is an important way to express its independent meaning. The company's official seal and license are also symbols of the company's independent personality. Therefore, company license is very important to the company. When the company license is embezzled, how should it be returned? This article will guide the issues involved in the company license return litigation from three aspects: the basis of the right of claim, the sorting of litigation, the issue of dispute and the rules of adjudication.
1. related regulations
(I) related laws
the People's Republic of China Property Law (2007)
Article 34 Where the right holder is not entitled to possess the immovable or movable property, the right holder may request the return of the original property.
Article 68 An enterprise legal person shall have the right to possess, use, profit from and dispose of its real and movable property in accordance with laws, administrative regulations and articles of association.
2. General Principles of the People's Republic of China Civil Law (2009 Revision)
Article 117 Anyone who encroaches on the property of the state or the collective or the property of another person shall return the property; if the property cannot be returned, compensation shall be paid at a discount.
If damage is caused to the property of the State, a collective or the property of another person, it shall be restored to its original condition or compensated at a discount.
If the victim suffers other heavy losses as a result, the infringer shall compensate for the losses.
3. Company Law of the People's Republic of China (2018 Amendment)
Article 3 A company is an enterprise legal person, which has independent legal person property and enjoys legal person property rights. The company is liable for the debts of the company with all its property.
The shareholders of a limited liability company shall be liable to the company to the extent of the amount of capital contribution they have paid; the shareholders of a joint stock limited company shall be liable to the company to the extent of the shares they have subscribed.
Article 147 Directors, supervisors and senior managers shall abide by laws, administrative regulations and the articles of association of the company, and shall have the duty of loyalty and diligence to the company.
Directors, supervisors and senior managers shall not take advantage of their functions and powers to accept bribes or other illegal income, and shall not embezzle the property of the company.
4. Civil Procedure Law of the the People's Republic of China (as amended in 2017)
Article 28 A lawsuit brought for an infringing act shall be under the jurisdiction of the people's court of the place where the infringing act is committed or where the defendant has his domicile.
(II) relevant judicial interpretation
1. Circular of the Supreme People's Court of China, on Printing and Issuing the Revised Provisions on the Cause of Action in Civil Cases (2011)
21. Disputes related to the company
252. Disputes over the return of company licenses
2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law (2015)
Article 24 The place of infringement as stipulated in Article 28 of the Civil Procedure Law includes the place where the infringement was committed and the place where the result of the infringement occurred.
(III) judicial guidance documents
1, the Supreme People's Court on the issuance.<第二次全国涉外商事海事审判工作会议纪要>Notice (2005)
Article 91 Where an enterprise with foreign investment takes the natural person, legal person or other organization holding the official seal of the enterprise with foreign investment as the defendant and files a lawsuit with the people's court requesting the return of the official seal, the people's court shall accept it.
Overview of 2. Litigation
Plaintiff: 1. Company; 2. Liquidation Group; 3. Shareholder Representative Litigation
Defendant: The obligor of the return of the company's license (such as the legal representative who is not entitled to hold the license, the director, supervisor and other personnel other than the legal representative)
Jurisdiction: The people's court of the place where the infringement is committed or where the defendant has his domicile shall have jurisdiction. (There is a dispute here, and some think it is the domicile of the company)
Litigation request:
The claims are generally expressed as follows:
The (I) ordered the defendant to return to the company the company license that he did not have the right to hold; (e. g. 1. Company seal, including but not limited to official seal, special seal for property, special seal for contract, special seal for invoice, etc.; 2. Company license, including but not limited to the original business license and tax registration certificate; 3. Other movable property, including but not limited to financial account books, accounting vouchers, bank U shields, business contracts, etc.).
The (II) ordered the defendant to be liable for damages, etc.
(III) the case acceptance fee, preservation fee and other litigation costs shall be borne by the defendant.
3. Disputes and Judgment Rules
Question 1: Jurisdiction?
Overview of the problem: There are two views on the determination of jurisdiction: the first view: according to the analysis in the "understanding and application of the provisions on the cause of action in civil cases of the supreme people's court", since the dispute over the company's license is a dispute of the nature of special damage to the company's interests, it should be applicable to special jurisdiction, and the relevant jurisdiction over the connection point of the company should be taken as the "domicile" jurisdiction of the court.
The second point of view: the basis of the right of claim in such cases is actually a tort legal relationship, so according to the provisions of Article 28 of the Civil procedure Law: "a lawsuit brought by a tort shall be under the jurisdiction of the court of the place where the tort is committed or where the defendant is domiciled." With regard to the place of infringement, according to the Supreme People's Court's Application.<中华人民共和国民事诉讼法>Article 24 of the Interpretation stipulates that "the place of infringement includes the place where the infringement was committed and the place where the infringement result occurred."
Case: Shipping Holding Co., Ltd. and Qingdao Pengli Nanhua Commercial Development Co., Ltd. Civil Ruling on Dispute over License Return (Case No.:(2016) Lu Min Jurisdiction Final No. 476; Trial Court: Shandong Higher People's Court)
The court of second instance held that the case was a dispute over the return of the company's license and was a tort dispute. According to Article 28 of the the People's Republic of China Civil Procedure Law and the Supreme People's Court's Rules on the Application<中华人民共和国民事诉讼法>According to Article 24 of the Interpretation of the People's Court of the place where the infringement was committed, the place where the result of the infringement occurred, and the place where the defendant has his domicile have jurisdiction over the case. Pengli Nanhua Company believes that the refusal of Shipping Holding Co., Ltd. to return its official seal and business license directly affects the normal operation of Pengli Nanhua Company. Therefore, the alleged infringement result occurred in Laoshan District, Qingdao City, where Pengli Nanhua Company is domiciled, and is under the jurisdiction of the original trial court. The case is a foreign-related civil and commercial case. It is not improper for the court of first instance to have jurisdiction over foreign-related civil and commercial cases as the place where the result of the alleged infringement occurred. As to whether Pippo and Xin Huawen can bring a lawsuit in the name of Pengli Nanhua Company, it belongs to the category of entity trial, and the court will not examine it at the stage of procedural trial. The Court does not support the appellant's appeal request.
Case: Qu Zhiping, Qingdao Chengyang District Landscaping Engineering Co., Ltd. Civil Ruling Letter of Second Instance on Dispute over License Return (Case No.:(2017) Lu 02 Minju Final No. 1203, Trial Court: Qingdao Intermediate People's Court of Shandong Province)
The court of second instance held that after examination, the court held that the case was a dispute over the return of the company's license and should be under the jurisdiction of the people's court of the defendant's domicile. If the domicile of the defendant is inconsistent with the habitual residence, the case shall be under the jurisdiction of the people's court of the habitual residence. The habitual residence of a citizen refers to the place where the citizen has lived continuously for more than one year from the place of residence to the time of prosecution. The household registration certificate issued by the public security organ submitted by the appellee can prove that the household registration of the appellant Qu Zhiping is Unit X, Unit X, Building X, No. 70 Qingfeng Road, Licang District, Qingdao. However, the residence certificate, birth medical certificate, heating fee invoice, parking fee receipt, electricity fee receipt and other evidence submitted by the appellant during the original trial of Qingdao Changle Weiyang Property Management Co., Ltd. can prove the fact that the appellant's habitual residence is X households, Unit X, Building X, Luxin Weiyang Garden, No. 6 Haiqing Road, Laoshan District, Qingdao City. Therefore, the case should be heard by the Laoshan District People's Court of Qingdao.
Lawyer's Comments
The author thinks that the second point of view is to determine the basis of the right of claim for the return of the company's license as a tort legal relationship, and it is more appropriate to have the jurisdiction of the court of the place of infringement or the defendant's domicile. In addition, it should be noted that, in addition to the avenues of civil litigation, the right holder can also provide relief through judicial administration or criminal reporting, which requires the right holder to consider and choose from multiple perspectives.
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