某酒厂股权转让纠纷代理侧录

——周显根律师

企业奄奄一息 唯有整体出售

某酒厂系国有企业，1998年7月改为股份制企业，由155名自然人联合出资组建，注册资本760万元；企业设集体股和个人股，股本总额7605497元，其中职工集体股3922480元，个人股3683017元。企业改制后，组成了董事会。鉴于改制后的企业实行人人持股、一人一票制，造成了企业内部管理松懈，企业凝聚力弱化。2000年5月底，酒厂为深化企业改革，提出了企业深化改革方案，经全体股东选择认为：企业整体出售方案较妥。自2000年6月开始，酒厂生产处于停滞状态，产生亏损60多万元；职工靠酒厂支付生活费生存。2000年8月，酒厂成立清算小组并委托法定中介机构对企业资产进行评估；2000年9月19日，酒厂召开了股东大会，通过了资产重组方案，提出以股权转让方式出售酒厂资产并载明：

1、资产重组所得先足额返还股本金；

2、一次性划解大病保险；

3、提取养老保险金，年限由股东自行决定，养老保险金可由酒厂统一支付，也可由股东自已缴纳；

4、余下资产按股东总人数平均分配。

资产出售 波澜曲折

酒厂在企业重组方案经股东大会通过后，于2000年10中旬在电视台发布公告，载明酒厂资产情况，并言明经股东大会通过决议，进行资产重组，如有意参与酒厂资产重组的，请前来索取资料，进行洽谈。至10底，有四家企业参与酒厂资产出售竞标。因酒厂企业章程规定：股东转让股权对象必须是企业内部职工，造成四家企业无法以股权转让方式参与企业竞标。2000年11月上旬，酒厂召开全体股东大会，对章程限制的股权转让对象作了修改，允许职工以外的第三者受让职工股权；2000年12月中旬，当地政府部门批转了酒厂资产重组方案，在此情况下，酒厂通知原四家报名参与竞标的企业，该四家企业均表示不再参与酒厂资产出售竞标。无奈，酒厂在2000年12月25日召开全体股东大会，对酒厂资产出售的价格、方式在厂内发布公告，公告载明：酒厂以总资产1550万元人民币进行股权转让，报名截止日为2000年12月27日；截止报名时间终了时，只有某房地产开发公司报名参与并按规定缴纳了投标保证金，为此酒厂向房地产公司发出了中标通知书并于2001年1月5日签订了《股权转让协议书》；此时，企业的改制工作暂告完成。

纠纷缘于大病保险

企业改制，必然涉及职工的社会养老保险事项；酒厂在以股权转让形式出售企业资产时，与受让方就大病医疗保险问题，仅规定要求受让方支付职工退休后的大病医疗保险费用。作为酒厂各股东的职工，认为在改制时原酒厂董事长赵某曾说过：股东在企业资产整体出售后次月即可享受大病医疗保险待遇。徐某等部分职工经咨询当地社保部门，发现职工要在退休年限界满前享受大病医疗保险待遇，必须另行支付大病医疗保险金，而现在受让方房地产公司按股权转让协议支付给社保部门的费用，仅是职工退休后的医疗保险费用；故徐某等股东职工以原酒厂董事会在资产重组过程中隐瞒事实为由，冲击酒厂并强行关上酒厂大门，拉掉酒厂电闸，由于酒厂经常受原酒厂部分股东干扰，自2001年3月底开始，酒厂一直无法生产至起诉时止。

多点出击 寻找诉由

徐某等85名股东诉称要求：

1、请求确认房地产公司与酒厂签订的股权转让协议无效；

2、请求确认酒厂董事会与徐某等85名股东签订的委托书无效并要求撤销；

3、判令房地产公司返还其受让的徐某等85名股东股权，恢复原状。

其主要事实理由：1、隐瞒大病保险待遇事实；

2、拒绝徐某等85名股东查询企业财务情况。对原酒厂会计挪用资金不作处理、企业50万元建房集资款去向不明，部分股权转让资金被截留；

3、酒厂原来有四家企业参与竞标，现变成一家企业参与竞标，徐某等85名股东不知；

4、酒厂全部资产，在股权转让协议中仅是760万元，与招标公告中1550万元不符；且转让协议把酒厂2000年12月31日股东会决议中不予转让的产成品、包装物、酒刁、酱刁和帐面款项也包括在内，违反了股东大会决议要求；

5、原酒厂董事会在徐某等85名股东未与房地产公司签订股权转让协议情况下，进行恶意串通，在工商部门办理股权转让手续；

6、以赵某组成的原酒厂董事会，一方面接受房地产公司委托受让股权，另一方面又接受徐某等85名股东的委托进行出让股权，属双方代理。由于酒厂与房地产公司签订的股权转让协议未经股东大会表决，依法应确认无效；徐某等85名股东不知企业真实情况和股权价值、不知转让程序且原酒厂董事会存在隐瞒大病保险的事实情况下，对自已出具的委托书存在重大误解，是一个无效的

民事行为，要求依法予以撤销。

针对徐某等85名的诉称及事实和理由，作为代理一审被告房地产公司、酒厂、酒厂原董事会成员主办律师周显根和卢华富、张卫娟律师对本案作了如下针对性的答辩：

1、酒厂原董事会分别与房地产公司、徐某等85名股东签订的股权受让委托书、股权转让委托书，是在酒厂与房地产公司签订股权转让协议后，为落实协议有关条款，双方委托原酒厂董事会从事一些事务性工作，产生的法律关系是合同法所规定的委托合同法律关系，而不是双方代理；

2、酒厂在以股权转让形式出售企业资产时，严格按章程规定办事，在资产出售前，进行了资产评估，全体股东多次召开股东大会并作出了企业资产重组方案；房地产公司参与企业竞标，按酒厂公告要求报名，在签订股权转让协议时，才知当时报名只有一家，整个转让程序并不存在程序违法的事实；

3、股权转让协议并没有违反股东大会的决议，企业资产也不是以760万元予以转让；协议对1550万元分为二类进行计价即：股权总额760万元，大病、养老保险、职工生活补偿金为790万元，故在协议条款中明确约定上述款项支付房地产公司不得超过790万元；

4、房地产公司在股权转让协议签订后，已受让147名股东股权包括本案部分起诉股东并按规定向受让股东支付了股权转让款等；房地产公司在受让大部分原酒厂股东股权后，依法办理了工商登记变更手续，对未转让的原酒厂股东，仍在工商登记中保留股东身份，并不存在串通的事实；据此要求驳回徐某等85名股东的诉请要求。

围绕焦点 辩明事理

本案根据徐某等85名股东的诉称和房地产公司等答辩，在庭审中围绕以下几个焦点，进行激烈的辩论：

一、房地产公司与酒厂签订的股权转让是否有效

徐某等85名代理律师认为：本案房地产公司与酒厂签订的股权转让协议无效，其理由：

1、酒厂原董事会隐瞒企业事实真相，导致酒厂原股东作出了违背真实意思表示的股东大会决定；同时协议签订程序违法，不符合企业章程关于股权不得对外转让和协议应经股东大会讨论通过的程序；

2、协议违反了《轻工集体企业股权合作制试行办法》和《关于发展城市股权合作制企业指导意见》有关企业股东不得退股、股权只能在企业内部转让的规定及《城镇集体所有制企业条例》第15条有关股权转让应经过的审批程序；

3、变更后的酒厂注册资本虚假，以合法形式掩盖非法目的。

周显根律师认为：

1、从酒厂以股权转让形式进行出售的整个过程表明：酒厂原董事会并不存在隐瞒企业资产的事实。鉴于酒厂在1986年改制后，企业效益不佳，全体股东就企业的深化改革问题进行了多次论证，形成了深化改革方案、资产重组方案，组成企业清算小组，并对企业资产状况委托法定中介机构进行审计和评估，在此过程中，原酒厂董事会并不存在隐瞒企业资产状况的事实；至于会计挪用资金问题，检察机关已作处理，与原董事会无关；职工集资建房款，并不是企业资产，无需由董事会作出负责和解释且该款已用于职工集资建房。

2、酒厂转让程序表明并不存在违法之处。首先，在股东大会决定以股权转让方式出售企业资产时，由于章程限制转让对象，股东大会及时修改了章程相关条款；并在企业出售过程中，以公告方式在电视台、厂内发布；其次，对企业以股权转让方式出售资产的价格，经过股东大会作出决定；在本案中，起诉股东中82名在填写企业资产出售价格时同意以1550万元对外转让，表明转让价格并不存在暗箱操作的事实，徐某等85名股东也不存在对股权价值重大误解的事实；再次，受让人按酒厂公告要求参与竞标并签订协议，事前并不知道只有其一家参与；酒厂在章程修改后，也通知原四家报名单位，原四家报名单位表示不参与，对此事实在2000年12月25日的股东大会上原酒厂董事会已作了说明；房地产接到酒厂中标通知后在规定时间内与酒厂签订股权转让协议，并不违反股东大会的决议要求，股东大会也没有要求该协议在签订后通过表决程序予以确定。

3、徐某等85名代理律师提供的有关规范性规章文件，不能作为股权转让协议的无效依据，因为：《合同法》第52条对无效情形作了规定，其中规定违反法律、行政法规强制性规定的无效，而上述规章并非是法律、行政法规；同时《城镇集体所有制企业条例》第15条仅规定有关报批审批事项，并没有规定未经该程序审批的协议就应无效的规定，对此《合同法》若干问题解释（一）第9条第1款已作了明文规定。

4、房地产公司与酒厂签订股权转让协议后，各股东又委托原酒厂董事会并签订股东股权转让委托书，表面上看是股东委托原酒厂董事会进行股权转让，实则是股东委托酒厂对外进行股权转让，因该股权转让委托书加盖了酒厂的公章，故酒厂实施股权转让行为应视为各股东的股权转让行为；在股东股权转让委托书签订后，原酒厂147名股东向房地产公司领股权转让款和补偿金，应视为对酒厂签约行为和股权转让协议的认可。

5、变更后的酒厂即使注册资本虚假，也不能作为论证协议以合法形式掩盖非法目的的依据，因为一份协议是否以合法形式掩盖非法目的，应依签订协议存在的事实为据，且注册资本是否虚假，应由工商行政管理部门予以界定，与本案协议是否无效没有关联性。

法院判由主要内容：酒厂自改制后，效益逐年下滑，生产很不正常，为此股东大会决定，进行资产重组。经过评估、章程修改、招标、投标程序，由房地产公司受让了徐某等人股权，签订股权转让协议书，该协议内容并不违反法律、行政法规强制性规定，转让价格经股东大会决定，故协议合法有效。房地产公司受让股权后，有权依法办理工商登记，设置股权结构；至于注册资本是否虚假，应由工商部门审查处理，与本案无涉。

二、委托书的法律性质和效力

酒厂与房地产公司签订股权转让协议后，房地产公司为简化股东股权受让手续和节约自已的时间、精力，与酒厂董事会签订了股权受让委托书；酒厂各股东也与酒厂董事会签订了股东股权转让委托书，在上述委托书中均加盖了酒厂公章，故上述委托书前已述应视作与酒厂签订，而不是与董事会签订。故徐某等85名代理律师把董事会作为委托书签约主体并认定委托书无效是没有依据的，也与委托书本身事实不合。

徐某等85名股东代理律师认为：委托书是委托代理合同，故原酒厂董事会属双方代理，违反了《民法通则》及其解释有关代理人不得代理双方之法律禁止性规定，是无效的民事行为。周显根律师认为：股东与酒厂签订的股权转让委托书，是属于委托代理合同，因为该委托书对酒厂转让股东股权时有关股权转让价格、付款办法等作了约定，根据我国法律规定的代理制度，代理人在实施代理行为以被代理人名义与第三人发生民事法律行为，事实上，酒厂与各股东签订股权转让委托书后，是以各股东名义与房地产公司签订股权转让协议并进行股权价款结算，由此产生的后果应由各股东承担。而酒厂与房地产公司签订的股权受让委托书，仅约定酒厂在受让各股东股权时，规定酒厂向各股东支付有关股权价款、补偿金等一些事务性工作，在该委托书签订后酒厂并没有以房地产公司名义与第三者发生民事法律关系的事实，故酒厂不存在接受双方委托代理的事实。由于两者委托书性质不同且委托书内容不存在违反法律、行政法规强制性规定，徐某等85名股东认为委托书无效并要求撤销是没有事实和法律依据的。

法院判由主要内容：房地产公司与酒厂签订的股权受让委托书，仅约定酒厂从事一些事务性工作，属委托合同，且在该委托书签订后，酒厂没有依房地产公司名义与第三者发生民事法律行为，属委托合同；各股东与酒厂签订的股权转让委托书，酒厂在股权转让委托书签订后，以股东名义与房地产公司签订股权转让协议书，该委托书属于委托代理合同。由于委托书性质不一，故酒厂不存有双方代理行为且委托书内容不违反法律、行政法规禁止性规定，应认定有效。

三、股东与酒厂签订的股权转让委托书可否撤销

徐某等人在起诉时犯了一个基本逻辑性错误即既要求法院判决确认其与酒厂签订的委托书无效，又以重大误解为由，要求法院予以撤销；虽然由法院判决确认无效与撤销的法律后果相同，但两者的理由完全截然不同。为此周显根律师认为：徐某等人的起诉，从一个侧面反映了其诉称的不确定性和诉由的不当性。针对徐某等人以对大病保险存在重大误解为由，起诉要求撤销委托书，周显根律师认为：本案无论是股东股权转让委托书签订形式还是其内容，当事人均不存在重大误解的事实理由和依据，首先，徐某等人认为：原酒厂董事会隐瞒大病保险享受起算时间问题；查原酒厂股东大会决定和酒厂与房地产公司签订的协议，对大病保险享受待遇，均明确在股东退休后方可享受，不存在在缴纳大病保险金次月即可享受之规定和决定；其次，2000年12月25日的股东大会决定和股权转让协议书规定的房地产公司应付大病保险金额157万元，是针对股东退休后享受的大病保险待遇加以确定的；再次，徐某等人认为原酒厂董事长承诺在大病保险金支付后的次月即可享受，在本案中徐某等也没有提供充分的证据予以证实。最后，根据《民法通则》及其司法解释的有关规定，重大误解往往是当事人因自已的过错对行为性质、标的等产生错误认识，使行为的后果与自已的意思相悖并造成较大损失的，才可以认定为重大误解；可在本案中，当事人对委托书的内容并不存在任何异议并且按委托书要求领取股权转让款和生活补偿金等，表明当事人对行为内容并不存在重大误解的事实；同时，委托书的内容也没有违反各股东参与的股东大会决议如资产重组方案等。

法院判由主要内容：根据委托书内容和股权转让协议规定，房地产公司支付的大病医疗保险金仅是股东在退休后可享受的大病医疗保险；该保险享受待遇在2000年12月25日的股东大会已通过决议；徐某等人提出的重大误解不符合法定情形，其要求撤销股权转让委托书不予支持。

本案侧记：委托与代理的区别

本案周显根律师参与了一审的诉讼代理活动，一审驳回徐某等85名股东的诉讼请求；徐某等85名股东不服，上诉于浙江省高级人民法院，高级人民法院对一审判决仅对酒厂与房地产公司签订的股权转让协议中认为超过2000年12月31日股东会决议受让财产条款无效，其他条款有效；房地产公司依据无效条款取得的财产应返还给酒厂。其他一审判决内容予以维持。这样改判对徐某等来说，并未达到其要求，因为超过股东会决议财产判决返还的对象是酒厂，而不是徐某等85名股东。在本案代理过程中，另两位代理律师卢华富、张卫娟共同参与了本案的一审诉讼代理活动，并对代理意见的综合形成提出了许多宝贵的意见。

在本案中，争议的关键焦点是委托书性质和效力问题，这涉及到酒厂是否存在法律所不允许的双方代理和酒厂与房地产公司签订的总体股权转让协议效力。因而区分委托合同法律关系和代理合同法律关系不同点，是本案的关键所在。从理论上讲，委托合同与代理合同存在以下几方面的根本性区别：

1、代理合同中的代理人代理行为不包括事实行为，而委托合同中受托人受托处理受托事务时，可包括事实行为；

2、代理合同中代理人从事代理行为时，以被代理人名义与第三方发生法律关系，表现为外部行为；而委托合同中的委托行为仅存于委托人与受托人之间，与第三者不存在任何关系和接触；

3、代理权的产生基于被代理人的授权，是单方法律行为，而委托合同是双方法律行为。

Proxy profile of equity transfer dispute in a certain distillery

——Lawyer Zhou Xiangen

The only way for a company to survive is to sell as a whole

A certain distillery is a state-owned enterprise, which was transformed into a joint-stock enterprise in July 1998. It was jointly invested and established by 155 natural persons, with a registered capital of 7.6 million yuan; The enterprise has collective and individual shares, with a total share capital of 7605497 yuan, including 3922480 yuan for employee collective shares and 3683017 yuan for individual shares. After the restructuring of the enterprise, a board of directors was formed. Due to the implementation of everyone holding shares and one person one vote system in the restructured enterprises, internal management has become lax and cohesion has been weakened. At the end of May 2000, the distillery proposed a plan for deepening enterprise reform. After all shareholders chose, it was deemed that the overall sales plan of the enterprise was more appropriate. Since June 2000, the production of the distillery has been stagnant, resulting in losses of over 600000 yuan; Employees rely on the distillery to pay for their living expenses. In August 2000, the distillery established a liquidation team and entrusted legal intermediaries to evaluate the company's assets; On September 19, 2000, the distillery held a shareholders' meeting and passed an asset restructuring plan, proposing to sell the distillery's assets through equity transfer and stating:

1. Return the full amount of capital stock in advance based on the income from asset restructuring;

2. One-off cancellation of major illness insurance;

3. The withdrawal of pension insurance benefits, with the duration determined by the shareholders themselves, can be uniformly paid by the distillery or paid by the shareholders themselves;

4. The remaining assets are distributed evenly among the total number of shareholders.

The ups and downs of asset sales

After the company's restructuring plan was approved by the shareholders' meeting, the distillery issued a notice on the television station in mid October 2000, stating that the assets of the distillery would be restructured through a resolution passed by the shareholders' meeting. If you are interested in participating in the asset restructuring of the distillery, please come to request information and negotiate. By the end of October, four companies had participated in bidding for the sale of distillery assets. Due to the provisions of the distillery's articles of association that shareholders must transfer their equity to internal employees, four companies are unable to participate in the bidding process through equity transfer. In early November 2000, the distillery held a general meeting of all shareholders and made modifications to the equity transfer objects restricted by the articles of association, allowing third parties other than employees to acquire employee equity; In mid December 2000, the local government department approved the asset restructuring plan for the distillery. In this case, the distillery notified the four companies that had registered to participate in the bidding, and all four companies stated that they would no longer participate in the auction for the sale of distillery assets. Helplessly, the distillery held a general meeting of shareholders on December 25, 2000, and announced the price and method of selling the distillery's assets in the factory. The announcement stated that the distillery would transfer its equity with a total asset of RMB 15.5 million, and the registration deadline was December 27, 2000; At the end of the registration deadline, only a certain real estate development company registered and paid the bid security as required. Therefore, the distillery issued a bid winning notice to the real estate company and signed the "Equity Transfer Agreement" on January 5, 2001; At this point, the restructuring work of the enterprise has been temporarily completed.

Dispute arising from serious illness insurance

Enterprise restructuring inevitably involves social pension insurance matters for employees; When the distillery sells its enterprise assets through equity transfer, it only stipulates with the transferee that the transferee is required to pay the serious illness medical insurance fees for employees after retirement. As employees of various shareholders of the distillery, I believe that during the restructuring, Zhao, the former chairman of the distillery, once said that shareholders can enjoy serious illness medical insurance benefits the following month after the overall sale of the enterprise's assets. After consulting with the local social security department, Xu and some other employees found that in order for them to enjoy serious illness medical insurance benefits before the retirement year limit expires, they must pay additional serious illness medical insurance benefits. However, the fees paid by the transferee real estate company to the social security department according to the equity transfer agreement are only the medical insurance expenses after the employee retires; Therefore, shareholders and employees such as Xu attacked the distillery and forcibly closed the gate and pulled off the power switch of the distillery, citing the concealment of facts by the original distillery's board of directors during the asset restructuring process. Due to frequent interference from some shareholders of the distillery, the distillery has been unable to produce since the end of March 2001 until the time of the lawsuit.

Multiple attacks to find cause of action

85 shareholders including Xu claimed that:

1. Request confirmation that the equity transfer agreement signed between the real estate company and the distillery is invalid;

2. Request confirmation that the power of attorney signed between the board of directors of the distillery and 85 shareholders including Xu is invalid and request its revocation;

3. Order the real estate company to return the equity of 85 shareholders, including Xu, that it has acquired and restore to its original state.

The main factual reasons are: 1. concealing the fact of serious illness insurance benefits;

2. Refusing 85 shareholders including Xu to inquire about the financial situation of the company. The accountant of the original liquor factory did not handle the misappropriation of funds, the whereabouts of the 500000 yuan raised funds for building houses by the enterprise were unclear, and some equity transfer funds were intercepted;

3. The distillery originally had four enterprises participating in the bidding process, but now it has become one enterprise participating in the bidding process, unknown to 85 shareholders including Xu;

4. The total assets of the distillery were only 7.6 million yuan in the equity transfer agreement, which does not match the 15.5 million yuan in the bidding announcement; And the transfer agreement also includes the finished products, packaging materials, liquor, sauce, and book payments that were not transferred in the resolution of the distillery's shareholders' meeting on December 31, 2000, which violates the requirements of the shareholders' meeting resolution;

5. The board of directors of the original distillery maliciously colluded with 85 shareholders, including Xu, to handle the equity transfer procedures in the industrial and commercial department without signing an equity transfer agreement with the real estate company;

6. The board of directors of the original liquor factory, composed of Zhao, on the one hand accepted the commission of the real estate company to transfer the equity, and on the other hand accepted the commission of 85 shareholders such as Xu to transfer the equity, which belongs to the agency of both parties. Due to the fact that the equity transfer agreement signed between the distillery and the real estate company has not been voted on by the shareholders' meeting, it should be confirmed as invalid in accordance with the law; Under the circumstances where 85 shareholders, including Xu, were unaware of the true situation and equity value of the enterprise, the transfer process, and the fact that the original distillery's board of directors had concealed serious illness insurance, there was a significant misunderstanding of the power of attorney issued by themselves, which is invalid

A civil act that requires revocation in accordance with the law.

In response to the claims, facts, and reasons of 85 defendants, including Xu, Zhou Xiangen, a lawyer representing the real estate company, distillery, and former board members of the distillery in the first instance, as well as lawyers Lu Huafu and Zhang Weijuan, made the following targeted defenses to this case:

1. The original board of directors of the distillery signed a power of attorney for equity transfer and a power of attorney for equity transfer with 85 shareholders including the real estate company and Xu. After the distillery and the real estate company signed an equity transfer agreement, in order to implement the relevant provisions of the agreement, both parties entrusted the original board of directors of the distillery to engage in some transactional work. The resulting legal relationship is the legal relationship stipulated in the contract law, rather than the agency relationship between both parties;

2. When the distillery sells its enterprise assets through equity transfer, it strictly follows the provisions of the articles of association. Before the asset sale, it conducts asset evaluation, and all shareholders have held multiple shareholder meetings and made plans for enterprise asset restructuring; Real estate companies participate in enterprise bidding and register according to the requirements of the distillery's announcement. When signing the equity transfer agreement, they only realize that there was only one registered company at that time, and there was no illegal procedure in the entire transfer process;

3. The equity transfer agreement did not violate the resolution of the shareholders' meeting, and the company's assets were not transferred for 7.6 million yuan; The agreement divides 15.5 million yuan into two categories for valuation: the total equity amount is 7.6 million yuan, and the compensation for serious illness, pension insurance, and employee living expenses is 7.9 million yuan. Therefore, the terms of the agreement clearly stipulate that the payment of the above-mentioned funds to the real estate company shall not exceed 7.9 million yuan;

4. After the signing of the equity transfer agreement, the real estate company has transferred the equity of 147 shareholders, including some of the sued shareholders in this case, and has paid the equity transfer payment to the transferee shareholders in accordance with regulations; After acquiring the majority of the equity of the original distillery shareholders, the real estate company has gone through the procedures for changing the industrial and commercial registration in accordance with the law. For the original distillery shareholders who have not been transferred, they still retain their shareholder status in the industrial and commercial registration, and there is no collusion; Accordingly, it is requested to reject the appeal requests of 85 shareholders including Xu.

Justify the facts around the focus

Based on the claims of 85 shareholders, including Xu, and the defense of the real estate company, this case engaged in intense debates during the trial around the following focal points:

1、 Is the equity transfer signed between the real estate company and the distillery effective

85 proxy lawyers, including Xu, believe that the equity transfer agreement signed between the real estate company and the distillery in this case is invalid, with the following reasons:

1. The original board of directors of the distillery concealed the true facts of the enterprise, resulting in the original shareholders of the distillery making decisions at the shareholders' meeting that violated their true intentions; At the same time, the agreement signing process is illegal and does not comply with the procedures stipulated in the company's articles of association regarding the non transfer of equity and the agreement that should be discussed and approved by the shareholders' meeting;

2. The agreement violates the provisions of the "Trial Measures for the Equity Cooperation System of Light Industrial Collective Enterprises" and the "Guiding Opinions on the Development of Urban Equity Cooperation Enterprises", which stipulate that enterprise shareholders are not allowed to withdraw their shares and that equity can only be transferred within the enterprise, as well as Article 15 of the "Regulations on Urban Collective Owned Enterprises", which stipulates the approval procedures for equity transfer;

3. The registered capital of the changed distillery is false and covers up illegal purposes in a legal form.

Lawyer Zhou Xiangen believes that:

1. The entire process of selling the distillery through equity transfer indicates that the original board of directors of the distillery did not conceal the fact of enterprise assets. Considering the poor performance of the distillery after its restructuring in 1986, all shareholders have conducted multiple discussions on the deepening of the enterprise's reform, formed a deepening reform plan and asset restructuring plan, formed a liquidation team, and entrusted legal intermediaries to audit and evaluate the enterprise's asset status. During this process, the original board of directors of the distillery did not conceal the fact of the enterprise's asset status; As for the issue of accounting misappropriation of funds, the procuratorial organs have dealt with it and have nothing to do with the original board of directors; The funds raised by employees for building houses are not corporate assets and do not require the responsibility and explanation of the board of directors. The funds have been used for employee fundraising for building houses.

2. The transfer process of the distillery indicates that there are no violations. Firstly, when the shareholders' meeting decided to sell the company's assets through equity transfer, due to the restrictions on the transfer objects in the articles of association, the shareholders' meeting promptly revised the relevant provisions of the articles of association; And during the sale process of the enterprise, it shall be announced on television stations and factories through public announcements; Secondly, the price at which the enterprise sells assets through equity transfer shall be decided by the shareholders' meeting; In this case, 82 of the sued shareholders agreed to transfer the company's assets for 15.5 million yuan when filling in the sale price, indicating that there was no hidden manipulation of the transfer price. Xu and 85 other shareholders also did not have a significant misunderstanding of the equity value; Once again, the transferee participated in the bidding and signed the agreement as required by the distillery announcement, without prior knowledge that only one of them participated; After the amendment of the articles of association, the distillery also notified the original four registration units that they did not participate. This fact was explained by the board of directors of the distillery at the shareholders' meeting on December 25, 2000; After receiving the notification of winning the bid from the distillery, the real estate company signed an equity transfer agreement with the distillery within the specified time, which does not violate the resolution requirements of the shareholders' meeting. The shareholders' meeting also did not require the agreement to be determined through voting procedures after signing.

3. The relevant normative regulations and documents provided by 85 proxy lawyers such as Xu cannot serve as the basis for invalidity of equity transfer agreements, because Article 52 of the Contract Law stipulates invalidity, which stipulates that invalidity violates mandatory provisions of laws and administrative regulations, and the above regulations are not laws or administrative regulations; At the same time, Article 15 of the Regulations on Urban Collective Owned Enterprises only stipulates the matters related to approval and does not provide for the invalidity of agreements that have not been approved through this procedure. The first paragraph of Article 9 of the Interpretation of Several Issues in the Contract Law has already been explicitly stipulated.

4. After the real estate company signs an equity transfer agreement with the distillery, each shareholder entrusts the board of directors of the original distillery and signs a shareholder equity transfer authorization letter. On the surface, it appears that the shareholder entrusts the board of directors of the original distillery to transfer the equity, but in reality, the shareholder entrusts the distillery to transfer the equity externally. As the equity transfer authorization letter is stamped with the distillery's official seal, the implementation of equity transfer by the distillery should be considered as the equity transfer behavior of each shareholder; After the signing of the shareholder equity transfer commission, 147 shareholders of the original distillery shall receive equity transfer payments and compensation from the real estate company, which shall be deemed as recognition of the signing of the distillery's contract and equity transfer agreement.

5. Even if the registered capital of the changed distillery is false, it cannot be used as a basis for demonstrating whether an agreement covers up illegal purposes in a legal form. Whether an agreement covers up illegal purposes in a legal form should be based on the facts that exist in the signed agreement, and whether the registered capital is false should be defined by the administrative department for industry and commerce. It is not related to whether the agreement in this case is invalid.

The main content of the court's judgment is that after the restructuring of the distillery, the efficiency has been declining year by year, and production is very abnormal. Therefore, the shareholders' meeting has decided to carry out asset restructuring. After evaluation, articles of association modification, bidding, and bidding procedures, the real estate company has acquired the equity of Xu and others, and signed a equity transfer agreement. The content of the agreement does not violate mandatory provisions of laws and administrative regulations. The transfer price is determined by the shareholders' meeting, so the agreement is legal and valid. After acquiring equity, real estate companies have the right to handle business registration and establish equity structures in accordance with the law; As for whether the registered capital is false, it should be reviewed and handled by the industry and commerce department, which is not related to this case.

2、 The Legal Nature and Effectiveness of Power of Attorney

After the distillery signed an equity transfer agreement with the real estate company, the real estate company signed a power of attorney for equity transfer with the distillery's board of directors to simplify the procedures for shareholder equity transfer and save its own time and energy; Each shareholder of the distillery has also signed a shareholder equity transfer authorization letter with the board of directors of the distillery, which has been stamped with the distillery's official seal. Therefore, the aforementioned authorization letter should be considered as signed with the distillery, rather than with the board of directors. Therefore, it is baseless and inconsistent with the fact that 85 proxy lawyers, including Xu, regarded the board of directors as the signatory of the power of attorney and deemed the power of attorney invalid.

85 shareholder lawyers, including Xu, believe that the power of attorney is an agency contract, so the original board of directors of the distillery belongs to both parties as agents, which violates the legal prohibitive provisions of the General Principles of the Civil Law and its interpretation that agents cannot represent both parties, and is an invalid civil act. Lawyer Zhou Xiangen believes that the equity transfer power of attorney signed between shareholders and the distillery belongs to the agency contract, because the power of attorney stipulates the price and payment method of equity transfer when the distillery transfers shareholders' equity. According to the agency system stipulated by Chinese law, the agent engages in civil legal acts with a third party in the name of the principal when implementing the agency act. In fact, after the distillery signs the equity transfer power of attorney with each shareholder, It is to sign an equity transfer agreement with the real estate company in the name of each shareholder and settle the equity price, and the consequences arising from this shall be borne by each shareholder. The equity transfer power of attorney signed between the distillery and the real estate company only stipulates that the distillery shall pay relevant equity prices, compensation, and other transactional work to each shareholder when acquiring their equity. After the power of attorney is signed, there is no fact that the distillery has a civil legal relationship with a third party in the name of the real estate company. Therefore, there is no fact that the distillery accepts the agency entrusted by both parties. Due to the different nature of the power of attorney between the two and the fact that the content of the power of attorney does not violate mandatory laws and administrative regulations, 85 shareholders, including Xu, believe that the power of attorney is invalid and demand revocation without factual and legal basis.

The main content of the court's judgment is as follows: the power of attorney for equity transfer signed between the real estate company and the distillery only stipulates that the distillery is engaged in some transactional work, which is an entrustment contract. Moreover, after the power of attorney is signed, the distillery has not engaged in any civil legal act with a third party in the name of the real estate company, which is an entrustment contract; The power of attorney for equity transfer signed between each shareholder and the distillery. After the distillery signs the power of attorney for equity transfer, it signs an equity transfer agreement with the real estate company in the name of the shareholder. This power of attorney belongs to the agency contract. Due to the varying nature of the power of attorney, the distillery does not engage in any agency behavior between both parties, and the content of the power of attorney does not violate the prohibitive provisions of laws and administrative regulations, and should be deemed valid.

3、 Can the power of attorney for equity transfer signed between shareholders and the distillery be revoked

Xu and others made a fundamental logical mistake during the prosecution, which was to request the court to confirm the invalidity of the power of attorney signed with the distillery, and to request the court to revoke it on the grounds of significant misunderstanding; Although the legal consequences of invalidity and revocation are the same, the reasons for the two are completely different. Lawyer Zhou Xiangen believes that the prosecution of Xu and others reflects the uncertainty of their claims and the impropriety of the cause of action from one side. Regarding the lawsuit filed by Xu and others requesting the revocation of the power of attorney on the grounds of significant misunderstanding of the serious illness insurance, Lawyer Zhou Xiangen believes that in this case, whether it is the form of signing the shareholder equity transfer power of attorney or its content, there is no factual reason or basis for significant misunderstanding among the parties. Firstly, Xu and others believe that the original board of directors of the distillery concealed the issue of the starting time for enjoying the serious illness insurance; The decision of the shareholders' meeting of the original distillery and the agreement signed between the distillery and the real estate company clearly stipulate that the benefits of serious illness insurance can only be enjoyed after the retirement of shareholders, and there is no provision or decision that can be enjoyed after paying the serious illness insurance benefits in the following month; Secondly, the decision of the shareholders' meeting on December 25, 2000 and the equity transfer agreement stipulate that the real estate company should pay a serious illness insurance amount of 1.57 million yuan, which is determined based on the serious illness insurance benefits enjoyed by shareholders after retirement; Once again, Xu and others believe that the chairman of the original distillery promised to enjoy the serious illness insurance benefits the following month, and in this case, Xu and others did not provide sufficient evidence to prove it. Finally, according to the relevant provisions of the General Principles of the Civil Law and its judicial interpretations, a major misunderstanding is often a misunderstanding of the nature, subject matter, etc. of the act by the parties due to their own fault, causing the consequences of the act to contradict their own intentions and causing significant losses. Only then can it be recognized as a major misunderstanding; In this case, the parties did not have any objections to the content of the power of attorney and received the equity transfer payment and living compensation as required by the power of attorney, indicating that there was no significant misunderstanding of the content of the behavior by the parties; At the same time, the content of the power of attorney did not violate the resolutions of the shareholders' meeting, such as the asset restructuring plan, in which each shareholder participated.

The main content of the court ruling: According to the content of the power of attorney and the provisions of the equity transfer agreement, the serious illness medical insurance benefits paid by the real estate company are only the serious illness medical insurance benefits that shareholders can enjoy after retirement; The benefits enjoyed by this insurance were resolved at the shareholders' meeting on December 25, 2000; The significant misunderstanding raised by Xu and others does not comply with the legal situation, and their request to revoke the power of attorney for equity transfer is not supported.

Side note of this case: The difference between commission and agency

Lawyer Zhou Xiangen participated in the litigation agency activities in the first instance of this case, and the first instance rejected the litigation requests of 85 shareholders including Xu; 85 shareholders, including Xu, were dissatisfied and appealed to the Zhejiang Provincial Higher People's Court. The Higher People's Court's first instance judgment only held that the terms of the equity transfer agreement signed between the distillery and the real estate company that had passed the resolution of the shareholders' meeting on December 31, 2000 regarding the transfer of property were invalid, while other terms were valid; The property acquired by the real estate company based on invalid terms should be returned to the distillery. The content of other first instance judgments shall be maintained. This revision of the judgment did not meet the requirements of Xu and others, as the object of the property judgment returned beyond the resolution of the shareholders' meeting was the distillery, rather than the 85 shareholders of Xu and others. During the agency process in this case, two other lawyers, Lu Huafu and Zhang Weijuan, jointly participated in the first instance litigation agency activities and provided many valuable opinions on the comprehensive formation of agency opinions.

In this case, the key focus of the dispute is the nature and effectiveness of the power of attorney, which involves whether the distillery has an agency between the two parties that is not allowed by law and the effectiveness of the overall equity transfer agreement signed between the distillery and the real estate company. Therefore, distinguishing the differences between the legal relationship of the commission contract and the legal relationship of the agency contract is the key to this case. In theory, there are fundamental differences between commission contracts and agency contracts in the following aspects:

1. The agent's agency behavior in the agency contract does not include factual behavior, while in the commission contract, when the trustee is entrusted to handle entrusted affairs, it can include factual behavior;

2. In an agency contract, when an agent engages in agency behavior, a legal relationship occurs with a third party in the name of the principal, which is manifested as external behavior; The commission behavior in the commission contract only exists between the principal and the trustee, and there is no relationship or contact with any third party;

3. The generation of agency power is based on the authorization of the principal, which is a unilateral legal act, while a commission contract is a bilateral legal act.