The defendant is a limited liability company established on January 12, 2009, with a registered capital of 20 million yuan, shareholders Wang and Dong, and the legal representative is Wang. On May 26, 2017, the legal representative was changed to Dong Moumou. Later, Wang Moumou died. On October 25, 2018, the shareholders were changed to Pan Moumou, Dong Moumou, Wang Moumou1, and Wang Moumou2, and the shareholding ratios were respectively. 38%。
After Wang XX2 was changed to a defendant shareholder, he communicated with the legal representative Dong XX many times, requesting to exercise the shareholder's right to know, but Dong XX refused to access the relevant information on the grounds that the company was no longer in operation. At the end of October 2019, Wang Moumou2 couldn't bear it anymore and entrusted lawyer Wang Biyun to initiate a lawsuit against the defendant's shareholders' right to know.
December 14, 2019Ms. Wang Biyun assisted the plaintiffWang Moumou2In the form of mailTo the mailbox is xxxxxx@qqThe recipient of com (i.e., the legal representative Dong Moumou).A reminder letter for shareholders' right to know was sent, indicating that the plaintiff requested an audit because he did not understand the company's operating conditions.
The plaintiff requested the defendant to submit the following materials to the plaintiff for inspection or reproduction by December 31, 2019:
Report on the company's operating conditions;
Report on the company's major events;
All financial and accounting reports, accounting books (including but not limited to general ledgers, sub-ledgers, journals and other auxiliary account books, etc.) and accounting vouchers (including but not limited to bank statements, bookkeeping vouchers, relevant original vouchers and relevant materials as attachments to the original vouchers) since the establishment of the company;
All investment agreements of the company;
Articles of Association and Amendments to the Articles of Association. After receiving the plaintiff's email, the defendant ignored the plaintiff's request, and the plaintiff sued in accordance with the law.
Difficulties in shareholder right to know cases:
Article 33 of the Company Law provides:Shareholders have the right to inspect and copy the articles of association, minutes of shareholders' meetings, resolutions of board of directors, resolutions of board of supervisors and financial and accounting reports. Shareholders may request to inspect the company's accounting books. If a shareholder requests to inspect the company's accounting books, he or she shall submit a written request to the company stating the purpose. If the company has a reasonable basis to believe that the shareholder's inspection of the accounting books has an improper purpose and may harm the legitimate interests of the company, it may refuse to provide the inspection, and shall reply to the shareholder in writing and explain the reasons within 15 days from the date of the shareholder's written request. If the company refuses to provide access, the shareholders may request the people's court to require the company to provide access.
It can be seen from the above-mentioned legal provisions
From the perspective of shareholders, shareholders' right to know is the basic right of shareholders stipulated in the Company Law, and the law guarantees that shareholders can enjoy this right in a normal, timely and comprehensive manner in accordance with the law. However, the exercise of shareholders' right to know is not without any special restrictions. Generally speaking, shareholders cannot directly request the people's court to require the company to provide access to statutory information, but need to first submit to the company in writing to exercise the shareholder's right to know, such as after the company has made a written request from the shareholderWithin fifteen daysdid not reply to the shareholders, orExplicitly refuseProvision of access to,Only shareholders can sue to protect their rights
Of course, from the company's point of view, if the company can put forward reasonable grounds to believe that the shareholders have an improper purpose in inspecting the accounting books and may harm the legitimate interests of the company, it may refuse to provide the inspection, and shall reply to the shareholders in writing and explain the reasons within 15 days from the date of the shareholders' written request. This illustratesUnder certain conditions, the company may exercise the corresponding right of defense。As long as the company provides reasonable reasons to point out that there is an improper purpose for shareholders to exercise the right to know, and the improper purpose will harm the legitimate rights and interests of the company, for example, the shareholders' audit is for the purpose of stealing the company's trade secrets, or the shareholders' repeated audits in a short period of time are for the purpose of disrupting the normal operation of the company, etc., the company has the right to refuse to provide inspection. However, it should be reminded that the company should receive a written request from the shareholdersWithin 15 days, the shareholders will also be replied in writing with the reasonsIf the company fails to fulfill this obligation and the shareholders sue for exercising the shareholders' right to know, the company has a high risk of losing the lawsuit.
In this caseCombined with the fact that the plaintiff has never distributed dividends and the legal representative has indicated that the company has entered an abnormal business state, it is only possible to truly understand the company's financial status only by consulting the financial documents, so it should be deemed that the plaintiff has fulfilled the general obligation to explain the purpose of the company. After receiving the plaintiff's written request, the defendant completely ignored it, and neither agreed to the plaintiff's access, copying, nor refusedThe defendant has no right to refuse the plaintiff's access to and reproduction of statutory materials because it is unable to provide evidence to prove that there is a legitimate reason for the plaintiff to exercise the right to know for an improper purpose
In accordance with Article 33 of the Company LawShareholders have the right to inspect and copy the articles of association, minutes of shareholders' meetings, resolutions of board of directors, resolutions of boards of supervisors and financial accounting reports; The scope of the shareholder's right to inspect is the company's accounting books (including accounting vouchers). The scope of the shareholders' right to inspect or copy is usually focused on the inspection of the accounting books.
The Supreme People's Court's Communiqué Case on the Trial of Shareholders' Right to Know Disputes points out that in accordance with the provisions of China's "Accounting Law", "Regulations on Financial Accounting Reporting of Enterprises", "Accounting Basic Work Specifications" and other financial laws and regulationsFinancial Accounting ReportsAccounting bookswithAccounting documentsare three different concepts:
Financial Accounting ReportsIt is a written document prepared on the basis of audited accounting books and records and relevant information, reflecting the financial status and operating results of the unit, which is composed of accounting statements, notes to accounting statements and financial fact sheets, of which accounting statements include balance sheets, income statements, cash flow statements and related schedules; Accounting booksIt is a book that registers all economic business data, including general ledgers, schedules, journals and other auxiliary account books; Accounting documentsIt is a written proof that records the economic business of the unit and clarifies the economic responsibility, and it includes the original voucher and the accounting voucher.
The company shall cooperate with the shareholders who request to inspect the original vouchers together with the accounting books for the following three reasons:
First of allSince the accounting voucher is the basis for the preparation of accounting books and an important voucher to prove whether the accounting books are recorded correctly, they should be recorded as an attachment to the accounting books for future reference, and are an attachment to the accounting books;
SecondlyThe specific business activities and real financial status of the company can only be known by consulting the original documents, otherwise the shareholders' right to know cannot be protected from the actual situation;
FinallyIn general, the shareholders will not unduly increase the company's obligations when they inspect the accounting books and the original vouchers.
In this case, the plaintiff's lawsuit requiring the company to provide accounting books and original vouchers was in accordance with the law, and the company should cooperate in providing inspection.
In the end, the court accepted the plaintiff's determination of the scope of accounting books, and recognized that accounting documents are the basic basis for the preparation of accounting reports, and the authenticity and completeness of accounting books must be verified through accounting documentsThe court fully upheld the plaintiff's request for access to accounting documents.
1. In judicial practice, shareholders can agree on the company's internal governance affairs by means of the company's articles of association and shareholders' agreementIf the content of the agreement violates the mandatory provisions of laws and regulations, it shall be invalid。For example, if the articles of association of the company stipulate that the shareholders' right to know is excluded, it should be treated as invalid.
2. In addition, China's "Company Law" does not prohibit shareholders who have not contributed capital from exercising their right to knowAs long as there are no anonymous shareholders or nominee shareholders who require confirmation of the identity of the shareholders, etcof the complications,Shareholders of record may exercise their right to know in accordance with the law
Areas of PracticeMs. Wang Biyun's main practice areas are marriage and family affairs, corporate investment and financing, corporate governance, etc., and she also focuses on providing legal services for domestic and foreign enterprises and individuals in the fields of civil and commercial contract disputes, intellectual property rights, labor disputes and criminal cases.
Ms. Wang has many years of experience as corporate legal counsel, providing corporate governance, compliance and litigation legal services for several private enterprises and financial institutions. He also provides special legal services for a number of domestic technology, pharmaceutical, financial, and other companies, including but not limited to: investment and financing, mergers and acquisitions, bankruptcy liquidation, labor and personnel, financial leasing, intellectual property, international affairs, dispute resolution and many other fields.
In addition, Ms. Wang also maintains long-term cooperative relations with enterprises in Germany, Australia, the United States and other countries, providing them with non-litigation legal services such as consulting, investment and financing, as well as contract litigation legal services.
Legal Research and Literature
1999 Life Law Common Sense You Must Know".
Representative Cases
Provided special legal services for the daily governance and compliance of several large and medium-sized enterprises in the free trade zone.
Provided legal services for a subsidiary of a state-owned enterprise in the free trade zone for internal risk management and bankruptcy liquidation.
Provided legal services for a financial leasing company in the free trade zone for a collection project.
Provided legal services for the equity transfer of a foreign company.
Provided legal services for the compliance operation of certain first-class listed and post-listing enterprises.
Provided legal services for the issuance of legal opinions on the registration of a number of private equity managers.
Provided legal consulting services for several Australian and German companies in the field of intellectual property and international **.
* Domestic parties carry out civil cases such as marriage and family affairs, inheritance, real estate, contract disputes, labor and personnel, etc., and **foreign parties carry out international civil cases.