According to the Supreme People's Court's Interpretation (1) on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China, Article 72: When the husband and wife divide the valuable shares, such as **, bonds, and investment shares, as well as unlisted shares, in the joint property, if the negotiation fails, or it is difficult to distribute them according to the market price, the people's court may distribute them proportionally according to the quantity. Therefore, the divorce division of shares of listed companies is easier than that of limited liability companies or sole proprietorship companies and partnerships, because there is no corresponding evaluation of equity value, and the corresponding number of shares and the corresponding ** value can be queried on the trading platform, and there is no need to obtain the consent of the third party of the shareholder, and there is no problem of preemptive right. However, in the practice of share splitting of listed companies, there are many misunderstandings of professional differences, which lead to misunderstandings about the share division of listed companies, and the subsequent procedures are also complicated in order to perform the corresponding split agreement or court judgment.
1. How to determine the value of listed companies?
When dividing the listed company, the corresponding value can be directly queried on the trading platform, but compared with the value of others, the value of the listed company fluctuates greatly, and the value of every moment of the day may fluctuate greatly with the market, and the value difference brought by the fluctuation is also relatively large. Therefore, how to determine the market value corresponding to ** is particularly crucial. According to Article 72 of the Interpretation (1) of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China, firstly, the two parties may negotiate the value or determine the market value date through negotiation, and secondly, the distribution shall be proportional to the quantity. In practice, there are several main ways:
1.The determination of the market value agreed upon by both parties;
2.Based on the ** value on the date of the conclusion of the court argument;
3.Based on the market value of the case on the date of acceptance;
4.Based on the market value at the time of property declaration;
5.The ** price on the day of divorce shall prevail (the date of the divorce judgment);
6.Through the husband and wife to bid for ** and the buyer pays the consideration for the split**;
7.Valuations are carried out through judicial audits (mainly restricted shares).
The above methods are mainly for the non-holder to obtain equity cash compensation, if the above methods cannot be agreed by both parties, the final can be directly divided according to the number of shares held in proportion.
2. Can the ** of the lock-up period be transferred?
According to the provisions of the "Company Law" and the "** Law", there will be certain restrictions on the transfer of the issuer, directors, supervisors and senior executives of listed companies, as well as the employees who have obtained equity according to equity incentives. Then some customers will have doubts, thinking that divorce is only a matter of two people, and cannot break through the legal restriction period, thinking that even if it is divided, it cannot be actually transferred, and can only ask for market value compensation, but in fact, it is not.
According to the first paragraph of Article 5 of the Rules for the Administration of the Shares of the Company Held by the Directors, Supervisors and Senior Managers of Listed Companies and Their Changes, "during their tenure of office, the directors, supervisors and senior management of a listed company shall not transfer more than 25% of the total number of shares of the Company held by them each year through centralized bidding, block trading, transfer by agreement, etc."Except for changes in shares due to judicial compulsory enforcement, inheritance, bequest, and division of property according to law".。Therefore, there are transaction restrictions on restricted sales, and divorce division is an act of "division according to law" in law, not a transaction. Therefore, in the division of divorce property, the restricted tradable shares can be directly divided, and there is no obstacle to change the ownership.
3. How to transfer the ownership of the listed company after the split?
Listed companies** can inquire and go through the corresponding transaction procedures at China Depository and Clearing Corporation Limited (hereinafter referred to as "Zhongdeng Company"), which has Beijing headquarters, Shanghai and Shenzhen branches. For the non-transaction transfer procedures that occur due to divorce, the following materials need to be submitted according to the requirements of Zhongdeng Company. However, in the specific operation process, it is not directly applied for by Zhongdeng Company, but also operated through the ** underwriting brokerage.
Source: "Huatai ** Investor Registration Business Operation Guidelines").
In addition, since the divorce division is a non-transaction transfer, not a transfer, sale, gift and other transactions, according to the existing tax law, it does not belong to the scope of individual income tax, and does not need to pay individual income tax, but it is still necessary to file individual income tax liquidation declaration with the tax department where the transferor's **account is opened** company.
Fourth, whether the divorce division of the listed company needs to comply with the commitment made by the original spouse.
Although the division at the time of divorce is a non-transaction transfer in nature, for the benefit of investors and to prevent the shareholders and their husbands and wives from "borrowing", according to the "Self-Regulatory Guidelines for Listed Companies on the Shanghai ** Stock Exchange No. 1 - Standardized Operation" 64.11. "If the pledgee makes a commitment such as a share restriction, and the shares held by it are transferred in a non-transaction due to judicial enforcement, inheritance, bequest, division of property according to law, etc., the transferee shall abide by the relevant commitments made by the original shareholder", and the shareholder shall still abide by the restriction or commitment made by the original spouse after the divorce and division of equity. In July 2023, the China Securities Regulatory Commission issued the "Heads of Relevant Departments Answer Questions from Reporters on Matters Related to the Divorce and Separation of Company Shares by Shareholders of Listed Companies", requiring major shareholders, directors, supervisors and senior executives to distribute shares due to divorce, termination of legal persons or unincorporated organizations, company division, etc., all parties shall continue to jointly abide by the relevant provisions on shares, and shall not circumvent the restrictions in any way such as divorce, dissolution and liquidation, division, etc. Therefore, after the change of equity rights and interests in the divorce, the divorced husband and wife shall calculate the identity of the shareholders together and jointly abide by the provisions of the division of shares**.