The borrower does not pay back the time, and the pledged property is owned by the creditors.

Introduction: The establishment of guarantee property rights is to protect the legitimate rights and interests of the creditors. If the debtor does not fulfill its debt, the creditor may be prioritized for the auction of the guarantee and the sale. However, some parties agreed in the guarantee contract that if the debtor does not perform debts due, the guarantee is directly returned to the creditor. Is the guarantee clause set in this way? The author is analyzed and interpreted through a related practical case.

Summary

The plaintiff Zhong Mouguang was one of the natural person shareholders of the defendant's industrial investment company. Since the founding of the defendant Industrial Investment Corporation was established on April 27, 2012, the defendant's industrial investment company has never disclosed to the plaintiff Zhong Mouguang on the company's operating conditions and financial conditions.

The plaintiff Zhong Mouguang issued the "Review of the Recruitment Company's Articles of Association, the resolution of the shareholders' meeting, the board of directors, the decision of the board of directors, the financial accounting report of the board of directors, the financial accounting book application letter on January 5, 2017," The defendant's industrial investment company will review the plaintiff Zhong Mouguang within 15 days, and will answer the results of the review results in writing the plaintiff Zhong Mouguang.

However, the defendant Industrial Investment Company did not provide relevant materials for the plaintiff Zhong Motuang during the reply period to query and copy, and did not agree in writing that he did not agree with the plaintiff Zhong Mouguang's reasons for querying and copying.

The plaintiff Zhong Mouguang made a claim to the lawsuit: check and copy all the shareholders meeting records of the industrial investment company from April 27, 2012 to December 31, 2016. All financial accounting reports; request to check from April 27, 2012 to December 31, 2016, the entire accounting book (including general accounts, clear accounts, diary accounts and other auxiliary books) and accounting vouchers (including notes) Account vouchers, related original vouchers, and relevant information for the preparation of the original vouchers attachment).

The defendant's industrial investment company argued that the plaintiff Zhong Mouguang had transferred all the equity of the defendant's industrial investment company to Wang Mouwen before filed a lawsuit.

The third person Wang Mouwen stated: The plaintiff Zhong Mouguang and the third person Wang Mouwen signed the "Equity Praising Loan Contract" on July 11, 2015. The company's 14%of the equity of the company is guaranteed, and the third person Wang Mouwen borrowed 4 million yuan to the plaintiff Zhong Mouguang from July 12, 2015 to December 12, 2015. On -time repayment and interest payment, the plaintiff Zhong Mouguang unconditionally transferred the equity to the third person Wang Mouwen, and the loan amount was automatically transformed into a transfer fee for 14%of the aforementioned equity.

After the loan period expired, the plaintiff Zhong Mouguang failed to repay the book and pay interest on schedule. The 14%equity of the defendant Industrial Investment Company was officially transferred to the third party Wang Mouwen. The equity transfer was approved by other shareholders of the defendant industrial investment company. The meeting was signed, and the defendant's industrial investment company also recognized the equity transfer behavior between the plaintiff Zhong Mouguang and the third person Wang Mouwen.

The third person Wang Mouwen has sued the plaintiff Zhong Mouguang in another case, asking the plaintiff Zhong Mouguang to go through the registration procedures for the change of equity transfer.

In summary, shareholders 'rights cannot be separated from their shareholders' identity. The plaintiff Zhong Mouguang transferred all the equity of the defendant's industrial investment company to the third person Wang Mouwen. Shareholders, there is no legal basis for the defendant's industrial investment company as a shareholder as a shareholder's industrial investment company to exercise the right to exercise knowledge of the defendant's industrial investment company. The people's court shall reject all the claims of the plaintiff Zhong Mouguang in accordance with the law.

Referee points

The court tried that the plaintiff Zhong Mouguang was the registered shareholder of the defendant's industrial investment company. "" Zhong Mouguang turned to Wang Mouwen's borrowing of 4 million yuan due to the capital week of operation. 14%of the company's equity provides guarantee, which is the pledge clause. "At the same time, the contract also stipulated that" if Zhong Mouguang did not repay or pay interest on time, Zhong Mouguang unconditionally agreed to transfer the above equity to Wang Mouwen, and the amount of loan was automatically transformed into the amount of loan. The above 14%equity transfer deposit paid to Zhong Mouguang. "

The above clauses violate the provisions of Article 121 of the Property Law of the People's Republic of China, which are the liquid clauses and should be invalid. The appraisal conclusion of the "Judicial Appraisal Opinions" also determined that the signing date was the signature and seal of the defendant's industrial investment company Zhong Mouguang at the "Equity Transfer Agreement" on February 3, 2016. The signature and seals of a certain light are consistent with the time. The above appraisal report is made by the court commissioned by the court in another case. The court confirmed according to law.

The conclusion of the appraisal can confirm that the two parties agreed to the liquid clauses in the "Equity pledge borrowing contract" in disguise when the loan debt was not expired in accordance with the ownership of the quality substance (equity) of the fixed price, and signed the "Equity Transfer Agreement Agreement " In the case where the "equity pledge borrowing contract" involves invalid equity disposal clauses, the "Equity Transfer Agreement" is also invalid, and the "Equity Transfer Agreement" will not have the consequences of changes in equity. Therefore, the defendant's industrial investment company and third person Wang Mouwen advocated that the plaintiff Zhong Mouguang was no longer the case of the shareholder of the defendant's industrial investment company. The court did not accept the letter.

The court found that the plaintiff Zhong Mouguang had fulfilled the procedure requirements of shareholders' review. Therefore, the court asked the plaintiff Zhong Mouguang to ask the defendant's industrial investment company to provide the company's accounting account and accounting voucher to the plaintiff Zhong Mouguang's litigation request.

Referee result

In summary, the court's judgment: The defendant's industrial investment company provided the company's shareholders meeting records, shareholders' meeting resolutions and financial accounting reports from April 27, 2012 to December 31, 2016 within 10 days from the date of the judgment. Review and copy the plaintiff Zhong Mouguang; thin accounts and accounting vouchers (including original accounting vouchers) to the plaintiff Zhong Mouguang, not to exceed ten working days

Case evaluation

In this case, when the plaintiff and the third person Wang Mouwen signed the "Equity Puretic Loan Contract", it also agreed that the plaintiff Zhong Mouguang did not repay or pay interest on time, and the unconditional agreed to transfer the equity to Wang Mouwen. It is obviously that the liquid clause is invalid according to law and the effectiveness of the change of equity. Therefore, the plaintiff Zhong Mouguang is still a shareholder, which requires the shareholders to know the court's decision to support it.

The legal rights law is one of the basic principles of the property law. If the content of the property agreed by the parties does not comply with the law, it will lead to the consequences of the property rights and the effectiveness of property rights.

Article 186 of the "Property Law of the People's Republic of China" stipulates that the mortgagee shall not agree with the mortgagor that the debtor shall not be fulfilled with the debt due to the expiration of the debt performance period. Before the expiration of the debt performance period, the pledgee shall not agreed with the quality of the debtor to pledge the property to the creditors when the debtors do not perform the due debt.

The above -mentioned separate regulations are the prohibited storage clauses and prohibitions in the guarantee property rights. In the case, the two parties agreed to violate the provisions of the prohibited liquidity stipulated in the Property Law, so it should be invalid.

The case cited in the article is to better interpret legal knowledge. The author has made corresponding arrangements, compilation, and deletions on the content of the case. The legal views in the case are used for learning and communication. If you have any questions or suggestions, leave a message directly!

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