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　　BEIJING, Aug. 28 (Xinhua)-Du Wanhua, a full-time member of the Judicial Committee of the Supreme People’s Court, introduced the main contents of the judicial interpretation (IV) of the Company Law today. He said that the Interpretation strengthens the protection of shareholders’ legal right to know according to law. Articles 33 and 97 of the Company Law give shareholders the right to consult and copy the articles of association, resolutions and other documents and materials. This right is a fixed right granted to shareholders by the company law, belongs to the legal right to know, and is a basic right among shareholders’ rights, which should be strictly protected according to law.

　　China News Service reporter Cice Li photo

　　On the morning of 28th, the Supreme People’s Court held a press conference, released the Provisions of the Supreme People’s Court on the Application of Certain Issues (IV) and answered questions from reporters.

　　Du Wanhua first introduced the main contents of judicial interpretation (IV) of the Company Law. He said that the Interpretation includes 27 provisions concerning the application of law in the trial of disputes in five aspects: the validity of resolutions, shareholders’ right to know, the right to distribute profits, the right of preemption and the litigation of shareholders’ representatives.

　　On the one hand, it is to improve the litigation system for defects in the validity of resolutions.It is the main way of corporate governance to hold shareholders’ meeting or shareholders’ meeting and board meeting and make resolutions on the company’s business matters. Therefore, the dispute about the validity of resolutions is also the main type of corporate governance disputes.

　　The Interpretation perfects the applicable rules of law in the lawsuit for defects in the validity of resolutions from the following three aspects:

　　The first is to determine the lawsuit that the resolution is not established. There is a general distinction between dichotomy and trichotomy in the classification of the defects of resolution validity. The former includes two kinds of defects of resolution validity: invalid resolution and revocable resolution, while the latter also stipulates that the resolution is invalid or nonexistent. Article 22 of China’s company law stipulates that the actions of confirming the invalid resolution and canceling the resolution are aimed at the established resolution and do not cover the situation that the resolution is not established. We believe that from the perspective of system interpretation, the invalid resolution is of course not legally binding and should be an implied provision of the company law.

　　Therefore, Article 5 of the Interpretation stipulates that the lawsuit of invalid resolution, together with the lawsuit of invalid resolution and the lawsuit of canceling resolution, constitutes the pattern of "three-way division". Some people think that holding a meeting and making a resolution is the formation process of the company’s will, not the expression of the company’s will, so it is not a civil legal act and there is no question of whether it is established. We believe that the General Principles of Civil Law clearly stipulates the resolution behavior of legal persons, including companies, in the system of civil legal acts, and this Interpretation should be strictly implemented.

　　The second is to clarify the scope of the plaintiff in the case of the validity of the resolution. In order to maintain the company’s stable operation and transaction safety, on the basis of the principle of litigation interest, the company laws of various countries have many restrictions on the plaintiff’s scope of litigation for confirming the validity of resolutions. Article 22 of China’s company law also makes appropriate restrictions on this. However, due to its principle, there are some disputes about its specific meaning in judicial practice. The Interpretation strictly implements the legislative purpose of Article 22 of the Company Law. In Article 1, it stipulates that the plaintiff of the lawsuit that the resolution is invalid or not established, including shareholders, directors and supervisors; In the second article, the plaintiff in the action of canceling the resolution shall be qualified as a shareholder at the time of prosecution.

　　The third is to clarify the legal effect of confirming that the resolution is invalid or canceling the resolution. Regarding the external effect of internal regulations or resolutions of a company, the General Principles of Civil Law has been clarified through Articles 61 and 85, and basically established the principle of distinguishing between internal and external regulations and protecting the legitimate interests of bona fide counterparts. Accordingly, Article 6 of the Interpretation clearly stipulates that if the resolution of the shareholders’ meeting or the shareholders’ meeting or the board of directors is invalidated or revoked by the people’s court, the civil legal relationship formed by the company with the bona fide counterpart based on the resolution will not be affected.

　　Second, strengthen the protection of shareholders’ legal right to know according to law.Articles 33 and 97 of the Company Law give shareholders the right to consult and copy the articles of association, resolutions and other documents and materials. This right is a fixed right granted to shareholders by the company law, belongs to the legal right to know, and is a basic right among shareholders’ rights, which should be strictly protected according to law.

　　In view of the controversial issues encountered in the application of these two provisions, the Interpretation has made the following provisions: First, combining the principle of litigation interests, through Article 7, the shareholders’ right to appeal in accordance with Articles 33 and 97 of the Company Law is clarified, and the limited right to appeal enjoyed by the original shareholders of a limited liability company is stipulated.

　　Second, combined with judicial practice experience, the possible improper purposes of shareholders’ consulting the company’s accounting books are enumerated, and the boundary of the company’s refusal right is clearly defined.

　　Third, it is clearly stipulated that the company shall not substantially deprive shareholders of their legal right to know by means of articles of association or agreements between shareholders. The people’s court will not support the company’s refusal to exercise its statutory right to know on this ground.

　　Fourth, in order to ensure the exercise of shareholders’ right to know, it is stipulated that shareholders should hire intermediary practitioners to assist in consulting.

　　Fifth, it is stipulated that shareholders can request directors and senior managers of the company who fail to perform their duties according to law to compensate for losses, so as to prevent the shareholders’ right to know from being fundamentally damaged.

　　The third aspect,Actively explore and improve the judicial relief for shareholders’ profit distribution rights.The right of profit distribution refers to the right of shareholders to request the distribution of the company’s profits according to the proportion of capital contribution or shares. Whether and how to distribute the company’s profits belongs to the category of business judgment and company autonomy in principle, and the people’s courts should generally not intervene. Therefore, Articles 14 and 15 of the Interpretation clearly stipulate that if a shareholder requests the company to distribute profits, it shall submit a resolution of the shareholders’ meeting or shareholders’ meeting with a specific distribution plan; If it is not submitted, the people’s court shall not support it in principle.

　　However, in recent years, the major shareholders of the company have violated the principle of the same share and the same right and the principle that shareholders’ rights should not be abused, crowding out and squeezing minority shareholders, resulting in the company not distributing profits and damaging the minority shareholders’ profit distribution rights from time to time, which has seriously undermined the company’s autonomy. For example, the company does not distribute profits, but the directors and senior managers are overpaid, or the controlling shareholder manipulates the company to buy property or services unrelated to business for its own use or consumption, or conceals or transfers profits, and so on.

　　To this end, the proviso of Article 15 of the Interpretation stipulates that if the company’s shareholders abuse their rights, resulting in the company’s failure to distribute profits and causing losses to other shareholders, the judiciary can appropriately intervene to correct the failure of company autonomy.

　　Fourth, standardize the exercise of shareholders’ preemptive right and damage relief.Limited liability companies have strong human nature, and shareholders invest together based on mutual trust. For this reason, the company law stipulates that when shareholders transfer their shares to people other than shareholders of the company, other shareholders have the priority to purchase the transferred shares under the same conditions. This is the main legal basis for shareholders to safeguard their human interests. However, there are no specific provisions in the company law on the exercise notice, exercise mode, exercise period and damage relief of shareholders’ preemptive right.

　　To this end, the first explanation is to refine the procedural rules for exercising shareholders’ preemptive right. For example, it is stipulated that the transferring shareholder shall notify other shareholders of the same conditions for the transfer of equity in writing or in other reasonable ways that can confirm receipt; The time limit for exercising the shareholders’ preemptive right shall be determined in the order of the time limit stipulated in the Articles of Association, the notice period for transferring shareholders and the minimum time limit of 30 days. The main factors that should be considered in judging "equal conditions" include the quantity, price, payment method and term of the transferred equity, and so on.

　　In the second aspect, the exercise boundary and damage relief system of shareholders’ preemptive right are defined. The legislative purpose of the system of shareholders’ preemptive right is to safeguard the human interests of the company’s shareholders, rather than to protect other shareholders from obtaining the transferred shares. Accordingly, Article 20 of the Interpretation stipulates that if the transferring shareholders of a limited liability company do not agree to the transfer after other shareholders claim the preemptive right, the people’s court will not support the claim of the preemptive right of other shareholders, that is, other shareholders do not have the right to enter into compulsory contracts. At the same time, in order to prevent the transferring shareholders from making malicious use of this rule and damaging the shareholders’ preemptive right, Article 21 of the Interpretation clearly stipulates that if the transferring shareholders fail to seek the opinions of other shareholders on the transfer of equity, or damage the preemptive right of other shareholders by means of fraud or malicious collusion, the other shareholders have the right to demand the preemptive right of the equity under the same conditions as the actual transfer. However, in order to maintain the trading order and the stable operation of the company, the Interpretation appropriately limits the time limit for shareholders to exercise relevant rights after their preemptive rights are violated.

　　Thirdly, the practical dispute about the effectiveness of the equity transfer contract that damages the shareholders’ preemptive right has been solved. In our opinion, there is no special regulation on the validity of this kind of contract in the company law. We should not invalidate or cancel the contract just because it damages the shareholders’ preemptive right, but should strictly follow the provisions of the contract law. It is precisely because this kind of contract is valid in principle, so if the people’s court supports other shareholders to exercise the preemptive right, the transferee other than the shareholder may request the transferring shareholder to bear the corresponding contractual responsibilities according to law.

　　Fifth, improve the shareholder representative litigation mechanism.First, it is clear that Article 151 of the Company Law involves two different types of litigation. In judicial practice, there are different understandings about the types of litigation stipulated in the first paragraph of Article 151 of the Company Law and the litigation status of the company. We believe that the company’s board of directors or executive directors, board of supervisors or supervisors are the company’s organs, and the lawsuits filed on behalf of the company when they perform their statutory duties should be direct lawsuits of the company, and the company should be listed as the plaintiff. Article 23 of the Interpretation makes this clear.

　　The second is to improve the litigation mechanism of shareholders’ representatives. The second and third paragraphs of Article 151 of the Company Law stipulate shareholder representative litigation, but there are no specific operating rules for the status of the parties, the ownership of the winning interests and the burden of litigation costs in shareholder representative litigation. Articles 24, 25 and 26 of the Interpretation respectively stipulate these three aspects.

　　编者按

　　2018年1月11日至13日，中国共产党第十九届中央纪律检查委员会第二次全体会议在北京举行。

　　中共中央总书记、国家主席、中央军委主席最高领袖在中国共产党第十九届中央纪律检查委员会第二次全体会议上发表重要讲话。他强调，在中国特色社会主义新时代，完成伟大事业必须靠党的领导，党一定要有新气象新作为。要全面贯彻党的十九大精神，重整行装再出发，以永远在路上的执着把全面从严治党引向深入，开创全面从严治党新局面。

　　1月13日，第十九届中央纪律检查委员会第二次全体会议公报公布，其中明确指出，坚决清除对党不忠诚不老实、阳奉阴违的两面人、两面派，对表态多调门高、行动少落实差的严肃问责，聚焦党的十八大以来不收敛、不收手的领导干部，重点查处政治问题和经济问题相互交织形成利益集团的腐败案，着力解决选人用人、审批监管、资源开发、金融信贷等重点领域和关键环节的腐败问题，坚决查处涉黑“保护伞”。

　　以上六项工作被认为是今年反腐败斗争的新部署。六项工作中的六类人有哪些危害？围绕这六类人的反腐败工作如何开展？从今日起，《法制日报》视点版推出“2018反腐败新动向”系列报道，对这些问题一一剖析，敬请关注。

　　十九届中央纪委二次全会公报1月13日发布，其中指出，“坚决清除对党不忠诚不老实、阳奉阴违的两面人、两面派”。

　　中共中央总书记、国家主席、中央军委主席最高领袖曾指出，领导干部要把深入改进作风与加强党性修养结合起来，自觉讲诚信、懂规矩、守纪律，襟怀坦白、言行一致，心存敬畏、手握戒尺，对党忠诚老实，对群众忠诚老实，做到台上台下一种表现，任何时候、任何情况下都不越界、越轨。

　　“两面人、两面派”是怎样出现的？应如何清除“两面人、两面派”？围绕这些问题，《法制日报》记者采访了业内有关专家。

　　“两面人两面派”危害大

　　“两面人、两面派”的问题早已引起关注。

　　2015年3月，中央纪委监察部网站曾刊发文章《千万不能跟党装两面人 耍两面派——山东省委原常委、济南市委原书记王敏案件警示录》。

　　文中提到，“‘台上一套，台下一套，说一套，做一套；人前是人，人后是鬼……’王敏典型的‘两面人’特质，耐人寻味，发人深省，其警示作用之大，值得每一个领导干部深思”。

　　"Face-to-face, face-to-face, lip-service and action-to-face, this behavior has seriously damaged the relationship between the party and the masses and the prestige of the party in the hearts of the masses, damaged the image of the party, damaged the credibility of the party and harmed the interests of the masses, which has led to the failure to implement the country’s major policies and has also caused great harm to the country’s reform and development." Zhu Lijia, a professor at the National School of Administration, said in an interview with the reporter of Legal Daily.

　　“‘ Two-faced people, two-faced people ’ It is not a new problem in our party. ‘ Two-faced people, two-faced people ’ Accustomed to shouting slogans and doing little, the biggest harm is to affect the party’s image, erode the party’s mass base, and build a wall between the party and the masses, so that the party and the government can’t communicate with the masses normally, can’t really understand the voices of the masses, and can’t carry out the central policies and guidelines to the end, so that the masses can have a real sense of gain, which will eventually threaten the party’s ruling position and damage the political security of the country. ‘ Two-faced people, two-faced people ’ It will also put the party’s procedures for selecting and appointing cadres in trouble. " Zhuang Deshui, deputy director of Peking University Research Center for Clean Government Construction, told the reporter of Legal Daily.

　　The article "Never play double-dealing with two-faced people who pretend to be party members" mentioned that "these righteous speeches are ostensibly lively and eloquent. However, deep down in his heart, he (Wang Min) regards party discipline as nothing. Under the high-pressure situation of severely punishing corruption since the 18 th National Congress, he still does not converge and does not stop, and he violates the discipline. "

　　“‘ Two-faced people, two-faced people ’ Politically, corruption and policy implementation are not in place, and they support it on the surface, but actually do nothing, which ultimately has a negative impact on the interests of the masses. Morally speaking, the quality is extremely poor, and it seems to be very enthusiastic about the things of the masses, but it is mixed with a lot of performance elements. Economically speaking, it is mainly manifested in not doing practical things and seeking personal interests and personal benefits. " Zhu Lijia said.

　　“‘ Two-faced people, two-faced people ’ The main forms of expression include: on stage and off stage. On the stage, you may talk about building a clean and honest party style, but under the stage, you engage in abuse of power for personal gain, group gangs, and even interest groups; It’s a typical manifestation of formalism and bureaucracy, and it’s also a manifestation of being apolitical. In addition, ‘ Two-faced people, two-faced people ’ On the surface, it supports the central government’s decision-making and implements the central government’s policies, but in fact, it is corrupt for personal interests and makes the central government’s policies idle. ‘ Two-faced people, two-faced people ’ Making the party have a flamboyant style and a wind of comparison can’t improve the actual work results, which makes some leading cadres in party member pursue superficial achievements and ignore real achievements, so that ordinary people can’t see the real work results, and they can’t enjoy the reform dividend. " Zhuang Deshui said.

　　The hidden rules of officialdom add fuel to the flames

　　CPC Central Commission for Discipline Inspection Organ once published an article "Revealing Eight Faces of" Two-faced People "in Officialdom", including: Facebook 1— — Believing in Marxism-Leninism on the surface and superstitious about "master" behind it; Facebook 2— — Diligent on the surface, eating and drinking behind; Facebook 3— — Planning development on the surface, collusion between officials and businessmen behind it; Facebook 4— — On the surface, it is dedicated to the public, and behind it is "one family, two systems"; Facebook 5— — On the surface, it is a national cadre, with two boats behind him; Facebook 6— — On the surface, it is quite satisfactory, and it goes its own way behind it; Facebook 7— — On the surface, people are meritocratic, and behind them, people are money; Facebook 8— — On the surface, all corners of the country, behind the gangs.

　　So, how did "two-faced people and two-faced people" come into being?

　　"The fundamental reason is that the transparency of power disclosure is not enough. On the surface, it is very good, but it is not implemented, and the masses are not informed of the specific situation, so that the masses have no way to supervise, which in turn leads to loopholes in supervision. On the other hand, the reason is that the performance appraisal system is not perfect and the performance evaluation of cadres is not objective and scientific enough. Inadequate implementation is also an important reason. Although with the application of Internet technology and big data, the level of performance evaluation is relatively high, but the implementation is not in place, and some people will take advantage of it in the process. In addition, there are fewer channels and platforms for mass supervision and criticism, and the participation of public policies in the implementation process is not high. " Zhu Lijia said.

　　Zhuang Deshui believes that the emergence of "two-faced people and two-faced people" is caused by some hidden rules of officialdom.

　　"In the past, some hidden rules of officialdom made people who could brag and flatter get promotion opportunities, while those who were honest and practical could not get promotion opportunities. In this case, ‘ Two-faced people, two-faced people ’ There will be more room for activities, which will lead to the destruction of political life and political ecology within the party. " Zhuang Deshui said.

　　The reasons at the institutional level cannot be ignored.

　　"Although a series of systems and regulatory measures on inner-party supervision have been introduced, they have not been targeted at ‘ Two-faced people, two-faced people ’ Our cadres have worked out special supervision measures and assessment methods. In addition, there are still some shortcomings in the current assessment mechanism for the selection and appointment of cadres. Sometimes, more consideration is given to the opinions of higher-level leading cadres to lower-level leading cadres, and to a certain extent, the opinions of ordinary people are ignored, which makes some leading cadres only responsible for the upper level, not the lower level, and only the upper level is not realistic, so ‘ Two-faced people, two-faced people ’ 。” Zhuang Deshui said.

　　Strengthen supervision and change assessment mechanism

　　The article "Never play two-faced people with the party" mentioned that Wang Min, who flaunts as an idealist, "made a vow" in front of people and made a superficial statement, but put the revolutionary ideal on the shelf as a spiritual idol and never really used it as a guide to action and behavior to follow. With the tide of market economy, with the promotion of his position and the increase of various temptations, his party spirit has been abandoned, his ideals have collapsed and his beliefs have been shaken, leading to political deterioration, economic greed, moral degeneration and corruption in life!

　　How to prevent the bad influence of "two-faced people and two-faced people"?

　　Zhu Lijia believes that to build a public supervision platform, the public should be encouraged to criticize leading cadres. Both mass supervision and public opinion supervision can effectively make power run in the sun. The most important thing is to strengthen institutional supervision, especially in the process of formulating and implementing important policies, such as the restriction and supervision of administrative power by the Central Commission for Discipline Inspection, the National People’s Congress and people’s congresses at all levels. In order to make the people willing to supervise and dare to supervise, it is necessary to strictly implement administration and governance according to law and let power run on the track of democracy and the rule of law.

　　"Improve the political ecology within the party through the purification of political life within the party and the pre-supervision within the party, thus creating a good atmosphere of wanting to be an officer and being able to be an officer. To target ‘ Two-faced people, two-faced people ’ And such behavior, formulate a special system, strengthen the supervision and management of these behaviors, once found ‘ Two-faced people, two-faced people ’ That is, serious punishment. " Zhuang Deshui said, "We must also change our current cadre assessment mechanism, and the cadre assessment standards have a guiding role in the behavior of leading cadres. It is necessary for leading cadres to establish a correct view of political achievements, and not to equate simple political achievements with shouting slogans and making statements to superiors. Whether the political achievements are good or not, the masses have a steelyard in their hearts. Therefore, it is necessary to increase the weight of public opinions in the assessment of leading cadres, and it is more important to assess the actual results of leading cadres, not to look at face projects and superficial figures. "

　　The article "Never play two-faced people with the party" also mentioned that as a typical "two-faced person", Wang Min’s distorted values, split personality and duplicity behavior engage in political opportunism, pretending to be clean, pretending to be pure and pretending to be honest, and appearing on and off the stage, while others are the latter two performances, one to face and one behind, and using masks to cover up his extremely dirty soul and ugly behavior.

　　"No matter what kind of people, it is very important to persist in the high-pressure situation of anti-corruption and punish corruption with zero tolerance. It is necessary to strengthen the restriction and supervision of power, so that power can operate in a reasonable, effective and scientific framework and in the sun. We must continue to strengthen party building, change the ideological state of leading cadres in party member from the perspective of party building, and strengthen the state of not wanting to rot. " Zhu Lijia said.

　　"To urge leading cadres to establish a correct outlook on life, world outlook and values, that is to say, leading cadres must abandon the fluky psychology, establish a correct political psychology and ethical norms, and truly achieve power for the public. Leading cadres should take on more responsibilities, and don’t just regard leadership positions as an exercise of power. What we should see more is a responsibility. We must truly use public power to seek benefits for the masses. " Zhuang Deshui said.

　　Zhuang Deshui believes that it is necessary to create a good political ecology, continuously promote the construction of work style, and rectify formalism and bureaucracy, so that those "two-faced people and two-faced people" have no market and no room for development in officialdom, so that those cadres who really want to be officers can take up leadership positions and give them more room and stage for development. Only in this way can good cadres play a leading and exemplary role, and bad cadres can really be eliminated.

　　Reporter Du Xiao Intern Liu Xiaoyu

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