How to identify "bona fide acquisition" in equity transfer?
——Chen v. Company A, a case of equity transfer
1.Judgment number:
Chengdu Intermediate People's Court of Sichuan Province (2018) Chuan 01 Min Zhong No. 1842 Civil Judgment.
2.Subject matter: Equity transfer dispute.
3.Parties:
Plaintiff (counterclaim defendant, appellee): Chen.
Defendant (counterclaim plaintiff, appellant): Company A.
Third person (appellant): Li Moujing, Zhao Mougang.
On July 18, 2016, Mr. Chen, as Party B, and the defendant as Party A signed the Equity Transfer Agreement, stipulating that Mr. Chen would transfer 100% of the equity of Company B held by Company A, and Company A would complete the registration of the industrial and commercial change of the equity transfer within 30 days from the date of signing the agreement, and bear the relevant costs. At the same time, it was agreed that the defendant would pay compensation to the plaintiff before July 1 of that year at the rate of 300,000 yuan for a total of six years. If Party A delays in paying compensation to Party B without reason, Party A shall pay liquidated damages to Party B at the rate of 3/1000 of the overdue payment for every 1 day overdue. On July 19, 2016, Company A transferred and paid 300,000 yuan in compensation for 2016 to Chen.
On May 14, 2017, Company A, as Party A, signed the Equity Transfer Agreement with Li Moujing and Zhao Mougang as Party B, stipulating that Party B would transfer 100% of the equity of Company B held by Party A, of which Li Moujing would receive 51% and Zhao Mougang would receive 49%. The transferee ** is 500,000 yuan, which is paid by Li Moujing to Party A. On May 15 of the same year, the legal representative of Company B was changed from Zhang Mousong to Li Moujing. On August 16, Li Moujing transferred 500,000 yuan to Company A through her bank account. The shareholders of Company B were changed from Company A to Li Moujing and Zhao Mougang.
The plaintiff claimed that the defendant was in breach of contract and filed a lawsuit, requesting the court to order the defendant to continue to perform the Share Transfer Agreement. Company A filed a counterclaim, requesting that the Equity Transfer Agreement be terminated and that the plaintiff refund the compensation of RMB 300,000 paid by Company A in 2016 and pay the interest on the capital occupation.
In an equity transfer dispute, if the transferor transfers the equity to the transferee without registering the transfer, and then transfers the equity to a third party and registers the transfer, can the bona fide acquisition system be applied to determine whether the third party is the owner of the equity?
1. After trial, the people's court held that the Equity Transfer Agreement clearly stipulated that the defendant Company A should complete the industrial and commercial change registration of the equity transfer within 30 days from the date of signing the agreement and bear the relevant expenses. The agreement indicates that the party responsible for the registration of the equity change is the defendant, and the plaintiff Chen has the obligation to cooperate. According to the statutory termination circumstances stipulated in Article 58 of the Civil Code, the defendant, as the breaching party, has no right to exercise the right to terminate the contract. Correspondingly, the plaintiff's request for a refund of the compensation of 300,000 yuan paid could not be sustained.
2. After the plaintiff and the defendant signed the equity transfer agreement, the defendant paid the first installment of compensation of 300,000 yuan according to the contract, the plaintiff actually operated company B and enjoyed the beneficiary right of the transferred assets, the defendant completed the delivery of the equity, and the plaintiff obtained the equity of the company. The defendant's further transfer of equity constituted a disposition of the plaintiff's lack of authority.
3. Although the third party, Li Moujing and Zhao Mougang, had changed their registration as shareholders of Company B and paid the consideration, judging from their status as transferees, the time of transfer, the time of change of registration, and the subject of the transaction, they were not in good faith at the time of the transfer. The defendant shall assist the plaintiff in handling the registration of the change of equity. The losses suffered by the third party as a result of paying rent to the villagers may also be claimed against the real obligor plaintiff through other channels.
4. In the claim for continued performance, the plaintiff requested the defendant to pay 300,000 yuan in compensation for each year from July 1, 2016 to July 1, 2022, except for 2017, the remaining part of the payment obligation has not expired, and the unexpired part is not supported.
In this case, the defendant raised a fundamental defense against the plaintiff's claim for breach of contract, and after the interpretation of the first instance, it filed a request for a reduction of liquidated damages. In this case, the plaintiff did not cite the losses suffered by the defendant due to the defendant's non-payment of compensation, and the standard of liquidated damages for the delay in payment of compensation agreed in the contract was too high and should be adjusted.
1. Criteria for judging bona fide acquisition
Article 311 of the Civil Code provides for a bona fide acquisition regimeThe details are as follows: Article 311 of the Civil Code: "If the person without the right of disposition transfers the immovable or movable property to the transferee, the owner has the right to recover it;Except as otherwise provided by law, the transferee shall acquire the ownership of the immovable or movable property under the following circumstances:
1. The transferee is bona fide when he transfers the immovable or movable property;
2. Reasonable transfer;
3. The transferred immovable or movable property that shall be registered in accordance with the law has been registered, and the one that does not need to be registered has been delivered to the transferee.
2. The identification path applicable to the bona fide acquisition system in equity transfer
Traditional civil law theories generally believe that bona fide acquisition is limited to movable property, and although equity is not movable property, since the real property right has made a theoretical breakthrough and practical application, the rights other than the real right include intellectual property rights, equity rights, etcAs long as it is based on the appearance of a certain right, there is the possibility of obtaining it in good faith. Identifying bona fide acquisition in equity transfer can be grasped from four conditions:
1. The assignor shall be the person who has no right to dispose of it
In the case of equity transfer, the transferee is the substantive right holder. If the original shareholder transfers again, it essentially constitutes a disposition of the transferee's equity, and it is an act of disposition without the right to dispose of it. It is precisely for this reason that there is a precondition for the application of the bona fide acquisition system in the transfer of shares.
2. The transferee should be subjectively bona fide at the time of the transfer
Good faith is the subjective mental activity of the actor, and it is only through the objective presumption of conduct that the actor is judged whether the actor is bona fide. From a practical point of view, the logical reasoning for judging whether a third party (the subsequent transferee) is bona fide is that the third party should first be presumed to be bona fide, and then the substantive right holder (the first assignee) should prove whether the subsequent assignee has bad faith, and if it cannot be proved to be in bad faith, it is presumed to be in good faith.
3. The third party pays reasonable consideration
The bona fide acquisition system itself is the result of a value measurement, giving preference to the interests of bona fide third parties. Only when a bona fide third party has paid a reasonable consideration of the equivalent and paid will its interests need to be protected first.
4. The third party's equity transfer is registered
In the absence of prior registration, there is a lack of specificity and necessity against prior assignments.
Only when the above four elements are met can it be confirmed that the transferee has acquired it in good faith.
3. How to determine the reasonableness of the bona fide acquisition of equity?
There is no open market for the equity of a limited liability company, and the determination of reasonableness can be determined with reference to the interpretation of the applicable law on the premise of the exercise of the right of revocation "obviously unreasonably low price", "if the transfer does not meet the price guidance of the place of transaction at the time of the transaction** or 70% of the market transaction price, it can generally be regarded as an obviously unreasonable low price;."Anything higher than 30% can be considered unreasonable**. As long as the volatility is within 30%, it should generally be considered reasonable**.
4. Allocation of the burden of proof for "good faith".
The determination of good faith also involves the allocation of the burden of proof. Due to the negative fact that the transferee does not know the true equity status, it is difficult to establish logically and implement it in practice. As long as there is no evidence to prove that the transferee knows the true equity information, the fact that the transferee relied on the equity registration should also be presumed to be bona fide. In other words, the assignee does not need to prove that it is acting in good faith, but that it is up to the person providing the dissenting opinion to prove that the assignee is in bad faith.
1. Article 32 of the Company Law of the People's Republic of China.
2. Articles 580 and 311 of the Civil Code.
3. Paragraph 1 of Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III), Paragraph 1 of Article 64 of the Civil Procedure Law of the People's Republic of China, and Article 2 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings.
That's all for today's sharing, for more legal issues of equity and M&A, welcome to pay attention to and consult Dr. Wang Ping, co-founder of ZhongYin Guangzhou Law Firm and a practical equity and M&A lawyer.