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corporate governance

2020-05-05 19:34:50

On April 26, the e-commerce platform Dangdang.com called its founder Li Guoqing and led four people to take away dozens of official seals and financial seals of Dangdang and several subordinate companies. The company then announced that it had called the police and the relevant official seals were invalid. Li Guoqing said he had taken over the company.
Li Guoqing claimed that there had been a resolution in the shareholders" meeting on the 24th and he had elected himself as the new chairman of the board. It was a peaceful takeover of the official seal and non-violent robbery. There may be some basis for saying that it is not "robbery".
Li Guoqing is a second shareholder, a major shareholder, a former chief executive officer, and the spouse of a major shareholder and a current executive director. He brings people to the house to ask for the official seal. The staff member in charge of the seal "did not suffer immediate losses" and gave him the official seal, which may not be regarded as "robbery". However, Dangdang"s statement after the event clearly believed that Li Guoqing"s charter was illegally obtained, so the focus of the problem was still the legitimacy of the shareholders" meeting resolution.
According to the Company Law, Li Guoqing, a shareholder representing more than one-tenth of the voting rights, does have the right to request the company to convene an interim shareholders" meeting, but the shareholders" meeting shall be convened by the executive director. If the executive director is unable to perform or fails to perform this duty, the board of supervisors shall convene and preside over the meeting. If the board of supervisors does not convene and preside over the meeting, the shareholders representing more than one-tenth of the voting rights will convene and preside over the meeting.
Therefore, if Li Guoqing requests Yu Yu to convene the meeting, and the latter fails to respond within a reasonable period of time and the board of supervisors is unwilling to accept the baton, Li Guoqing can convene the meeting, otherwise it is illegal.
At present, Li Guoqing has not announced the details of the shareholders" meeting. Both parties have different opinions on whether Yu Yu has been notified. It is not excluded that Yu Yu and the supervisor, the lower executive director, have been notified at will. However, even if the convening link is legal, the voting link is hardly legal.
public information shows that in Dangdang.com"s parent company, Beijing Dangdang kewen e-commerce co., ltd., Yu Yu holds 64% of the shares directly, Li Guoqing 28% and others 8%. Li Guoqing"s algorithm is that the husband and wife hold 92% of the shares together. As the common property is divided into two, he has 46%, plus the 8% who is said to support him, he can change the directors by more than half.
first point out that this algorithm is wrong. Before the divorce judgment divides the property, the husband and wife have the right to independently exercise the voting rights of the registered equity under their respective names. As will be explained below, the relationship between husband and wife does not always divide the equity and property equally, but may involve various special agreements, including the case where some of the equity that may be involved in this case is held on behalf of children. Therefore, in order to reduce the verification cost, when shareholders exercise their equity abroad, the registered amount shall still prevail, which is legally called "the externalism of commercial behavior".
Moreover, corporate governance is not elementary school arithmetic, and there are two legal obstacles that cannot be bypassed. Previously, due to the small number of shareholders, the company could not set up a board of directors according to law, but only one executive director was set up. However, what Li Guoqing means now is to change to a board of directors composed of multiple directors, involving changes in the internal organization of the company. Yu Yu was also the original executive director and legal representative who was cancelled the management right. The establishment of the company"s organization and the name of its legal representative are all matters that must be recorded in the company"s articles of association. A simple change of director may only require a majority vote, but the amendment of the articles of association regarding the company"s organizational structure and legal representative must be approved by shareholders representing more than two-thirds of the voting rights.
obviously, if Yu Yu did not agree, this value would not be possible. According to the above algorithm, Yu Yu also did not agree. Besides, if Yu Yu wanted to agree, the company would have been handed over peacefully. If the voting rights held by shareholders do not conform to the provisions of the company law, the relevant resolutions are not "revocable". "Revocable" means that the resolution was originally valid and can be invalidated by the court after review. However, if the voting rights are insufficient, it is called "untenable", i.e. the law should not exist. This is in line with the embarrassing situation that employees under Vice President Kan Min of Dangdang seem not to buy the Li version of the shareholders" meeting resolution, and Li Guoqing has not been able to enter the company so far. Those who want to affix their seals are getting an external appointment.
although in real company disputes, people who physically possess official seals and financial seals (in some cases, business licenses and online banking shields corresponding to company bank accounts) may not be able to really command company employees. After the case was quickly exposed and became a household name, a contract with an official seal over Dangdang"s official seal to require Dangdang to perform the contract may not necessarily constitute a bona fide counterpart in law. However, since the administrative department of our country attaches great importance to the official seal, the operation of the party who loses the official seal will be greatly disturbed.
specifically, a large number of items in the company"s operation need to be stamped and authenticated, and the classification is complicated, including official seal, financial seal, contract seal, invoice seal, legal representative name seal, etc. without one, it cannot be replaced by other seals, "recognizing the seal but not recognizing the person", and the control is strict.
not only that, but also the administrative organization is quite cautious about whether the company can engrave its official seal directly during the shareholder dispute. In some places, it is allowed to apply for re-engraving with the help of the business license and the signature of the legal representative, but at the same time, it is stipulated that re-engraving is not allowed if it is known that the seal is in the hands of the shareholders. If the company "accidentally" loses dozens of medals at once, it is also presumed that it is actually in the hands of stakeholders and must resolve it through negotiation. Li Guoqing"s high-profile announcement of the "seal" in hand has basically cut off the possibility of the other party re-engraving its official seal.
therefore, the party robbing the seal can indeed cause a lot of troubles to the normal operation of the robbed party, especially to a large number of matters requiring seal authentication. the party robbing the seal can use this as a bargaining chip to coerce the other party to accept certain conditions. However, Yu Yu Yu has shown strong character before and will never give up easily. The possibility of the company falling into a seesaw battle is not small.
this is also a pain point in our company"s operation. due to the small physical value of the official seal itself, the police generally do not accept reports of theft or robbery of property. the party who loses the seal can only go to the court for prosecution. In practice, it is not without embarrassing examples that the company"s business has come to a halt and after years of litigation over the return of its official seal and winning the case, the party holding the seal said that the official seal was really lost and therefore the judgment could not be fulfilled. However, in the final analysis, people should be more important than things. A dynasty does not rely on imperial seals to confirm its rule, nor does the company"s legal system depend on regulatioConfigEns, but on the authorization generated by resolutions of the shareholders" meeting and the board of directors through legal procedures.
Therefore, the view represented by Luo Peixin, deputy director of Shanghai Judicial Bureau, calls for a change in the seal management system. If the badge is gone, the legal management of the company can now use or directly use the electronic badge supported by the secure digital authentication system. Electronic seal is the performance of optimizing business environment advocated by World Bank standards. The newly promulgated "Regulations of Shanghai Municipality on Optimizing the Business Environment" on April 10 also specifies the equal or even better legal status of electronic seals, electronic signatures and electronic licenses.
and other regions may consider strengthening the substitution effect of the legal representative"s signature even if the reliable electronic seal system cannot be built temporarily due to technical conditions.
in fact, it is one of the things with "Chinese practical characteristics" that everything needs to be regulated. China"s "Contract Law" lists signature or seal as an effective way to sign a contract, but it does not say that signature is only applicable to natural persons, nor does the "Company Law" stipulate the legal status of official seal. Developed countries such as the United States do not need to stamp contracts, documents, bills and securities, but only recognize signatures, which has a history of 100 years.
it is difficult to know who legally or ultra vires covered the trouble after the seal was covered. it is obviously easier to hold the living accountable for their signatures.
in addition, the signature will also be supported by supporting systems. for example, the signer must indicate the identity of the signer, who has the right to sign the signature, which must be explained in advance through the archived company documents (articles of association, resolutions of the shareholders" meeting, resolutions of the board of directors). the signature style can also be reserved for banks and other interested parties like the seal style. the legal liability for forging the signature is not light either.
One of Li Guoqing"s major winning weapons in the future is to split up the shares again after divorce and change his disadvantage as a minority shareholder. Our country implements the legal system of joint property of husband and wife, that is, unless the husband and wife have a written agreement on how to divide the property, the property acquired after marriage is shared by the husband and wife, and it is generally divided equally in divorce. However, this road is not very easy.
First of all, the divorce procedure is long. Last year, Li Guoqing filed a divorce lawsuit. According to reports, Yu Yu said he did not agree to divorce. The marriage law of our country has the obvious characteristic of "persuading and not persuading to leave". Mediation will be carried out first in the divorce trial. If one party does not agree, it is highly probable that the judgment will conclude that the relationship has not broken down and divorce is not allowed, especially for the first time. After the judgment forbids divorce, it is not allowed to sue for divorce again immediately.
second, the division of divorced property is not necessarily accurate. Although in practice it is common to divide equally in order to facilitate handling and reduce judicial costs, the Marriage Law clearly stipulates the "principle of taking care of the rights and interests of children and women" and the principle of dividing less property for those who are at fault.
Yu Yu criticized some of Li Guoqing"s behaviors before. If "black material" approved by the court is put forward in divorce proceedings, it will result in unequal distribution of property.
once again, even if it is decided to divide the couple"s property equally, as long as the overall value is equal, instead of dividing everything equally. In other words, it is entirely possible to judge one party for more cash and real estate and one party for more equity.
in judicial practice, the court does not always adopt the method of dividing the equity when the equity is only registered in the name of one spouse. there are also cases where the equity registration party is only required to give cash discount to the unregistered party, such as the divorce cases of Liu mou and Wang mou, which were rejected by the Xinjiang higher court in the second instance and the supreme court in 2018.
it will be more complicated if both husband and wife are already shareholders of the company. For example, Li, Wei and his wife in Jilin have several shares in the company. Generally speaking, Li has more shares and Wei has less shares. The first instance judgment of Jilin High Court divided the shares equally, and the second instance judgment of the Supreme Court in 2017 was upheld.
The verdict shows that "the company was jointly founded by Li and Wei, and Wei X has also been involved in the operation since the company was established, and Li also expressed his approval", which seems to be similar to the situation in Li Guoqing. However, the court also obviously needs to pay attention to the impact of equal share rights on the company.
in the case of Wei mou, the supreme court stressed that "Wei mou shows that he has always attached great importance to the interests of the company, and their divorce has not caused any negative impact on the company"s operation. Li x also has no objection to this statement. According to the above facts, if the shares registered in the above-mentioned companies are divided equally, the company may not be deadlocked. "
on the other hand, it is obviously detrimental to the normal operation of the company, other shareholders, employees, company customers and creditors, and the court must also consider if the estranged ex-husband and ex-wife are allowed to compete in the company.
In other words, as the party with more shares under his name, the more likely Yu Yuruo appears to be at odds with Li Guoqing, the less likely it is that the court will split the shares equally. As she is a major shareholder and the actual manager of the company, the court ruled that it is not low that Li Guoqing should give up all his shares and not interfere with the company at all. However, if Yu Yu said that he and Li Guoqing can coexist peacefully in the company and even benefit the company, then it is more likely that the court will divide the shares equally.
On the one hand, Li Guoqing "won the medal" while on the other hand, he placed Yu Yu, who had been sued for divorce, in his new board of directors. The calculation may lie in: to advance, to strengthen the fait accompli of running a company in the divorce process, to retire, and to create a situation where one can coexist with Yu Yu. But the subtle thing is: Yu Yu"s next move will probably have a greater impact than Li Guoqing"s move.
As the founder of Dangdang, Li Guoqing is understandably dissatisfied with the current situation of holding shares and not holding positions in the company. In a certain sense, his "dare to do and dare to be dangdang" also counts as some "thinking for the company".
it"s just that modern companies operate by rules. sometimes, since they have lost out, it"s not easy to bring them back. Moreover, Dangdang has now lost out in the competition for a first-line e-commerce platform. If the dispute lasts for a long time, it will have a negative impact on the company, shareholders" property and image.
a simple but important hidden danger is: now one party has no staff and the other has no staff. what should outsiders do with it?
Li Guoqing will certainly use his official seal to persuade suppliers, customers and him to sign contracts. Although outsiders have no obligation to understand the internal disputes of the company, they can also pretend that they never watch the news and try to form a bona fide counterpart in civil law so as to restrain the company.
But since Li Guoqing does not have a good chance of winning, the people who made the contract with him will face the possibility that the non-Li Guoqing party will bear the contract in the end. When these people are refused to perform the contract in the future, they can certainly try their luck in the court, but how many people are willing to bear this risk?
people who plan to sign a contract with Dangdang without official seal will also have similar doubts. Therefore, it is the best interests of all parties to settle disputes as soon as possible.

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