On May 25th, 20 12, Party A signed a house lease contract with E in the name of establishing the company, taking E's house as the registered residence of Dachang Company in the future.
On June 5th, 20 12, Dachang Company was incorporated, with Ma Wei as the chairman and Party A as the general manager. The registered capital of the company is 654.38+million yuan, of which Xingping Company is funded by the factory building; The capital contribution of Party A is a set of equipment (the declared value of Party A is RMB 6,543.8+0.5 million, without capital verification) and cash of RMB 6,543.8+0.0 million.
On February 20 13, with Ma Wei's knowledge, Party A forged the signatures of Party C and Party D, transferred all the shares of Party C and Party D to Party B's name, and went through the change registration procedures. Subsequently, in May, 20 13, without any objection from Ma Wei and Party A, Party B transferred all the shares registered in its name to Wu Geng at a price of 3 million yuan, and went through the formalities of change registration.
It is found out that: firstly, the ownership of the factory invested by Xingping Company originally belonged to Ma Wei's father; 20 1 1 In May, Ma Wei obtained ownership by forging a will after his father died, and in August of the same year, Xingping Company was established by investing in a factory, with Ma Wei holding 80% of the shares. The real heir of Ma's father's estate is Ma Wei's younger brother. Secondly, Party A's cash contribution of RMB 6,543,800+was made by his friend Full Moon, and it was transferred from the company account to his personal account on June 12, and returned to Full Moon immediately as agreed. III. The equipment invested by Party A at the beginning of June 2065.438+02 was worth 6.5438+0.3 million yuan; 20 13, 1 month, worth 800,000 yuan. (203/ 4/5)
Question:
1. What is the validity of the house lease contract signed by Party A and Party E in the name of establishing a company? Why?
2.20 13, 1 June, can Party C and Party D claim that the actual investment of Party A's equipment is only 800,000 yuan, and then ask Party A to undertake the corresponding supplementary investment responsibility? Why?
3. When Party A fails to make up its cash contribution of 6,543,800 yuan, should Manshuo bear the corresponding responsibilities? Why?
4. Can Ma Yi ask Dachang Company to return the factory building? Why?
5. Can Party B acquire the equity of Party C and Party D? Why?
6. Geng bought all the shares transferred by B? Why?
Answer analysis
1. The civil status of the company in setting up the testing center.
The answer is valid. A company under establishment may carry out legal acts.
The legal person under construction has the qualification of civil subject and can engage in civil acts related to the establishment of legal person. Interpretation of Company Law (III) clearly stipulates the validity of contracts signed by promoters in their own name or in the name of the company during the establishment of the company. If the contract is signed in the name of the company under establishment, the contract is valid. If candidates don't understand that the legal person under construction enjoys the qualification of civil subject, it is easy to mistake that the promoters have no right to sign contracts in the name of the company under construction.
2. Non-monetary property contribution of the testing center
The answer is no, whether Party A has fulfilled the obligation of capital contribution shall be determined based on the time when the equipment is delivered and the ownership is transferred to the company. Therefore, 2,065,438+1.3 million yuan at the beginning of June 2002 should be taken as the standard for determining that Party A should bear the corresponding supplementary capital contribution responsibility.
The Company Law stipulates that non-monetary property as capital contribution shall be evaluated, verified and property rights transferred. Interpretation of the Company Law (III) stipulates that if the non-monetary property is not appraised according to law when the company is established, and the price determined after the appraisal is obviously lower than the price stipulated in the company's articles of association, the investor shall make up the difference. However, the appraised price when the property right is transferred to the company shall prevail. Candidates who are not familiar with relevant laws and regulations are likely to mistakenly believe that the evaluation and pricing of real estate should be based on other shareholders' request for supplementary responsibilities.
3. The test center withdrew its investment.
If the answer is full, it will not bear legal responsibility, and the corresponding supplementary responsibility will be borne by the organizer.
This topic examines Article 15 of the Interpretation of Company Law (III) before the revision of 20 14: If a third party advances funds to assist the promoters to set up a company, and both parties explicitly agree to withdraw the promoters' capital contribution to repay the third party after the company's capital verification or after the company's establishment, and the promoters cannot make up the capital contribution to repay the third party after withdrawing the capital contribution according to the above agreement, the relevant obligee requests the third party to jointly bear the corresponding responsibilities arising from the sponsors' withdrawal of capital contribution. ? However, this article was deleted from the revised version of Interpretation of Company Law (III) of 20 14, so according to the current law, there is no clear legal basis for this topic. In fact, according to the current company law, even if a third person helps the promoters to set up a company in the name of a fund, the promoters should recover their capital contribution and repay it to the third person, who is not responsible for the company or creditors.
This question reminds candidates, what are the commercial law, economic law and intellectual property law? The content often changes? The main reason is that laws, administrative regulations and judicial interpretations are frequently revised or newly promulgated. When reviewing, on the one hand, we should pay attention to the update of the learning content, on the other hand, we should be alert to the answers to the real questions over the years.
4. Capital contribution by shareholders of the testing center
The answer is yes. First of all, because the inheritance is invalid, Ma Wei can't get the ownership of the factory, but he will invest in the factory to set up Xingping Company. Because Ma Wei is the chairman of Xingping Company, his subjective malice is regarded as the malice of the company he represents, so Xingping Company cannot obtain the ownership of the factory. Secondly, when Xingping Company reinvested its factory in Dachang Company, Ma Wei was also the person in charge of the establishment of Dachang Company and the chairman after the establishment of the company, and it was impossible for Dachang Company to obtain ownership. So the ownership should still belong to Ma Yi, and he can ask Dachang Company to return it.
The train of thought puts forward that Ma Wei's forged will is invalid, so Ma Wei cannot obtain the ownership of the factory. Interpretation of the Company Law (III) stipulates that the investor shall contribute with the property that does not enjoy the right of disposition. If the parties are in dispute, it shall be determined by referring to the bona fide acquisition system stipulated in the Property Law. Ma Wei invested in the factory to set up Xingping Company. Ma Wei is the chairman of Xingping Company, and the legal consequences of his actions are directly borne by Xingping Company. Ma Wei knew that he had no inheritance right and could not obtain the ownership of the factory. Ma Wei's malice is the malice of Xingping Company, so Xingping Company has no right to apply the bona fide acquisition system to obtain the ownership of the factory building. Xingping Company reinvested its factory in Dachang Company, and Ma Wei is the chairman of Dachang Company. Ma Wei's malice is also the malice of Dachang Company. Dachang Company also has no right to apply the bona fide acquisition system to obtain the ownership of the plant, so the ownership of the plant still belongs to Ma Wei, who has the right to ask Dachang Company to return it. Candidates who are not familiar with the relevant laws and regulations may mistakenly think that although Ma Wei does not enjoy the ownership of the factory, after the investment company has gone through the ownership transfer procedures, the ownership of the factory will be owned by the company, and Ma Wei has no right to demand the return.
5. Test site equity transfer
The answer is no, there is no equity transfer between Party B and Party C or Party D at all. The signatures of Party C and Party D were forged by Party A, and Party B could not obtain them in good faith subjectively, which does not constitute good faith acquisition.
The key to this topic is whether B can apply the bona fide acquisition system to acquire equity. Some candidates may mistakenly think that after going through the formalities of equity change, the equity will be transferred to B. In fact, A transfers the equity of C and D to B, and whether B can acquire the equity depends on whether B meets the requirements of bona fide acquisition. In any case, Party B cannot be unaware of Party A's unauthorized disposition, so it has no right to acquire the equity.
6. Obtaining the equity of the test center in good faith.
The answer is yes. The original equity held by Party B is legal and valid and can be effectively transferred to Wu Geng. As for the equity of Party C and Party D transferred by Party B, although it is invalid, Party B has registered the shares in its own name, and Wu Geng has gone through the formalities of change registration in good faith. Therefore, according to Article 25 of the Interpretation of Company Law (III), Wu Geng can claim that the shares have been acquired in good faith.
This question is different from the fifth question. In the fifth question, Party B knows that Party A has no right to dispose of the equity, so it cannot acquire the equity according to the bona fide acquisition system. However, in this issue, Wu Geng is a bona fide transferee and has gone through the formalities of equity change, so Wu Geng has the right to obtain equity according to the bona fide acquisition system. If the examinee can't correctly distinguish the difference between the two questions, it is easy to mistakenly think that Wu Geng can't get the equity either.