First of all, the referee points.
According to Article 119 of the Civil Procedure Law of People's Republic of China (PRC), "prosecution must meet the following conditions ... (3) There are specific claims, facts and reasons", and the plaintiff should have specific facts and reasons in addition to the specific claims. If there are specific reasons, it should mean that there is a corresponding claim basis. If the plaintiff's lawsuit does not specify what the basis of his claim is, it shall be deemed that there is no specific reason. In this regard, the people's court shall, in accordance with the above-mentioned legal provisions, rule to dismiss the plaintiff's prosecution.
II. Relevant laws and regulations
Article 119 of the State Procedure Law of People's Republic of China (PRC): "The prosecution must meet the following conditions: (1) The plaintiff is a citizen, legal person and other organization that has a direct interest in the case; (2) Having a clear defendant; (3) Having specific requests, facts and reasons; (4) Belonging to the scope of civil litigation accepted by the people's court and the jurisdiction of the sued people's court. "
Third, the basic situation of the case
Zhang Guanyun, the plaintiff, claimed that the defendants Xia Yan Company and Guo Yanxian were ordered to immediately fulfill their obligation to protect the plaintiff's right to know, that is, to provide the financial accounts of the "Xia Yan Tourist Hotel" project to the plaintiff objectively and comprehensively. Facts and reasons: Defendant Guo Yanxian is the actual controller of Xia Yan Company. The plaintiff and Guo Yanxian signed the Share Participation and Dividend Contract, stipulating that the plaintiff would jointly develop the "Summer Resort Hotel" real estate project. The plaintiff has invested in 600 yuan accordingly. However, during the operation of the project, the defendant refused to let the plaintiff participate in the operation and management, did not disclose the accounts to the plaintiff, and did not distribute profits to the plaintiff. The plaintiff's so-called "shareholder" status was overhead. According to the Contract Law, General Principles of Civil Law and other relevant laws and regulations, the shareholding and dividend contract signed by the plaintiff and the defendant is legal and valid. Based on this, the plaintiff has obtained the status of joint partner in the cooperative project, and the defendant should respect and protect the plaintiff's right to know, supervise, manage and distribute the proceeds.
Defendants Xia Yan Company and Guo Yanxian argued that the plaintiff did not enjoy the shareholder qualification and the right to know in the "Xia Yan Tourist Hotel" project. The Share Dividend Contract signed by Guo Yanxian, a shareholder of Xia Yan Company, and the plaintiff was not signed by other registered shareholders.
The court of first instance found through trial that from 2065438 to May 2003, Xia Yan Company obtained the right to use state-owned land with an area of 992 1 m2, which was located in He Bin North Road, Eling Town, Yinjiang Autonomous County, and used it for the commercial and residential development of the real estate project of "Xia Yan Tourist Hotel". On August 24th, 20 13, Zhang Guanyun and Guo Yanxian, the legal representative of Xia Yan Company, signed the Shareholding and Dividend Sharing Contract. According to the contract, 1. Confirm the shares: Guo Yanxian holds 70% of the shares of 63 million yuan, and Zhang Guanyun holds 30% of the shares of 27 million yuan. The land purchase fee of 29,000 yuan shall be paid by Guo Yanxian, and the expenses incurred shall be confirmed by both parties in another schedule. 3. Zhang Guanyun is responsible for investing 5 million yuan for the early development expenses. Note: If the project can recover 30 million yuan within four months after it is completed and put into use in the sales office, Zhang Guanyun may not pay the remaining 22 million yuan. If the project can't realize the urgently needed funds, Zhang Guanyun will contribute 22 million yuan to make up 27 million yuan for the project, so that the project can proceed normally and smoothly. 4. Both parties confirm that the development cost is 90 million yuan, which belongs to Guo Yanxian. After the development is completed, the cost will be deducted first, and then the dividends will be distributed according to their respective shares. 5. The capital invested by Zhang Guanyun will also be included in the cost, and share dividends will be paid after deducting the cost in the future. 6. At present, the project funds are insufficient. Guo Yanxian invested 70% of the funds according to the shareholding ratio, and Zhang Guanyun invested 30% of the funds in the project according to the shareholding ratio. The capital invested by both parties is still based on the principle of excluding principal and interest, and the capital contribution cost is deducted first, and then dividends are distributed according to shares. The Shareholding Dividend Contract was signed by Zhang Guanyun and Guo Yanxian, and was stamped with the official seal of Xia Yan Company. After signing the contract, Zhang Guanyun contributed 5.8 million yuan to the "Summer Resort Hotel" real estate project.
Fourth, the result of the referee.
The first trial held that the plaintiff was not a shareholder of the defendant company, so the original trial request that the two defendants immediately perform the obligation to protect the plaintiff's right to know was not supported. 2 17, 2 1, and made a civil ruling of (20 17) No.326 in the early Republic of China, dismissing Zhang Guanyun's prosecution.
Plaintiff Zhang Guanyun's appeal request: cancel the ruling of first instance and change the judgment to support the appellant's claim of first instance; The legal fees of the first and second trials of this case shall be borne by the Appellee. Facts and reasons: 1. The procedure of first instance is illegal. The result of the first instance is actually the handling of substantive issues, and the judgment should be applicable. 2. The law of first instance is wrongly applied. The nature of this case is joint venture and cooperative real estate development. The subjects of joint venture and cooperation are the appellant and the appellee, Xia Yan Company and Guo Yanxian. The original intention, contract content and performance of the joint venture and dividend contract do not involve real estate projects that participate in joint venture and cooperation in the form of company shareholders. 3. Unfair trial is not conducive to the development of market economy. As a joint venture partner of the real estate project involved, the appellant actually invested 6 million yuan. According to the principle of consistent rights and obligations, he should have the right to know. Since the law does not clearly stipulate the right to know about joint venture real estate projects, the fairness principle of civil law should be applied to handle this case.
The Intermediate People's Court of tongren city held in the second instance that Zhang Guanyun, the plaintiff in the first instance, did not meet the conditions for prosecution stipulated in Item 3 of Article 119 of the Civil Procedure Law of People's Republic of China (PRC), so the result of dismissing his prosecution was not improper, and the appellant Zhang Guanyun's appeal for the court to make a substantive judgment on this case was unfounded. On July 3, 20 17, the civil ruling No.797 of Qian06 People's End was made: the appeal was dismissed and the original judgment was upheld.
Verb (abbreviation for verb) reasons for ruling
The effective ruling of the Intermediate People's Court of tongren city, Guizhou Province holds that the plaintiff Zhang Guanyun's claim in the first instance of this case is "to order the two defendants to immediately fulfill their obligation to protect the plaintiff's right to know, that is, to provide the plaintiff with the financial accounts of the' summer resort hotel' project objectively and comprehensively", and at the same time describe the specific facts in the complaint, but in the reason part of the complaint, he describes it as "according to the provisions of the Contract Law, the General Principles of the Civil Law and other relevant laws, the plaintiff Based on this, the plaintiff has obtained the status of joint partner of the cooperation project, and the defendant should respect and protect the plaintiff's right to know, supervise, manage and distribute income. " The statement did not explain the specific reasons and legal basis for demanding that "the defendant respect and protect the plaintiff's right to know", that is, it did not explain the specific reasons for its litigation request. According to Article 119 of the Civil Procedure Law of People's Republic of China (PRC), "prosecution must meet the following conditions ... (3) There are specific claims, facts and reasons". The plaintiff's prosecution in the first instance of this case does not meet the conditions for accepting civil litigation, so there is nothing wrong with the result of dismissing his prosecution in the first instance, and this second instance is maintained. The appellant Zhang Guanyun's appeal for the court to make a substantive judgment on this case was unfounded, and his appeal was rejected in the second instance.
Case index of intransitive verbs
First instance: The People's Court of Yinjiang Tujia and Miao Autonomous County, Guizhou Province (20 17) No.326 Civil Ruling of Qian0625 Minchu.
Second instance: tongren city Intermediate People's Court of Guizhou Province (20 17) No.797 civil ruling of Qian 06 Minzhong.
Effective referee: Tang,,, Xiong Yafei.
Case author: Tang