钱碧芳、华宁公司与祝长春、华宇公司、祝明安及汪贤琛股东权纠纷案
最高人民法院民事判决书
(2005)民一终字第25号
上诉人(原审被告、反诉原告)：钱碧芳，女，1964年10月4日出生，汉族，福建省闽清县人，住江苏省南京市白下区海福巷1号51幢203室。
委托代理人：赵军，北京市铭泰律师事务所律师。
委托代理人：陈文鸿，北京市铭泰律师事务所律师。
上诉人(原审被告、反诉原告)：江苏华宁房地产开发有限公司，住所地江苏省南京市秦淮区实辉巷10号-1。
法定代表人：钱久忠，该公司董事长。
委托代理人：赵军，北京市铭泰律师事务所律师。
委托代理人：陈文鸿，北京市铭泰律师事务所律师。
被上诉人(原审原告、反诉被告)：祝长春，男，1951年7月2日出生，汉族，湖北省鄂州市人，住湖北省鄂州市鄂城区莲花村祝家湾。
委托代理人：曹力，江苏南京海浪律师事务所律师。
被上诉人(原审原告、反诉被告)：江苏华宇房地产开发有限公司，住所地江苏省南京市江宁区东山镇金盛路南侧。
法定代表人：祝长春，该公司董事长。
委托代理人：曹力，江苏南京海浪律师事务所律师。
被上诉人(原审第三人)：祝明安(系祝长春之父)，男，1927年12月5日出生，汉族，湖北省鄂州市人，住湖北省鄂州市鄂城区莲花村祝家湾。
委托代理人：曹力，江苏南京海浪律师事务所律师。
原审第三人：汪贤琛(系钱碧芳之母)，女，1943年7月27日出生，汉族，福建省闽清县人，暂住江苏省南京市白下区海福巷1号51幢203室。
上诉人钱碧芳、江苏华宁房地产开发有限公司(以下简称华宁公司)与被上诉人祝长春、江苏华宇房地产开发有限公司(以下简称华宇公司)、祝明安及第三人汪贤琛股东权纠纷一案，江苏省高级人民法院于
2004年11月15日作出(2004)苏民二初字第6号民事判决。钱碧芳、华宁公司不服该判决，向本院提起上诉。本院依法组成合议庭，于2005年4月26日进行了开庭审理。钱碧芳及其与华宁公司的委托代理人赵军，祝长春、华宇公司及祝明安三方的委托代理人曹力到庭参加诉讼。本案现已审理终结。
一审法院经审理查明：华宁公司于
1999年3月9日由祝长春、李前林、王新民发起设立，注册资本1000万元，其中祝长春出资340万元，李前林、王新民各出资
330万元。1999年11月12日，王新民将其拥有的股权分别转让给钱碧芳150万元、谷大中120万元、祝长春60万元。2001年
3月27日，李前林将其在公司所有的330万元股权分别转让给祝长春300万元、钱碧芳30万元，谷大中将其在公司所有的
120万元股权全部转让给钱碧芳。转让后，公司注册资本保持不变，其中祝长春出资 700万元，占注册资本70％，钱碧芳出资
300万元，占注册资本30％。2002年4月
10日，华宁公司注册资本增至2000万元，其中祝长春出资1400万元，钱碧芳出资
600万元，各自所占公司注册资本比例不变。祝长春为公司董事长，钱碧芳为公司总经理。
华宇公司于2001年1月3日由祝长春和钱碧芳申请设立，注册资本1000万元，其中祝长春出资750万元，占注册资本
75％；钱碧芳出资250万元，占注册资本 25％。祝长春为公司董事长兼总经理。
因祝长春与钱碧芳在共同经营公司过程中产生矛盾，双方于2002年11月12日达成《江苏华宁房地产开发有限公司股东大会决议》(以下简称《华宁决议》)约定：祝长春将其在华宁公司的股权折合人民币若干万元，一次性转让给汪贤琛，转股协议另行签订；双方同意上述转让的股权中已考虑各种税、费、对外欠款、维修费及质量赔偿等因素；祝长春将股权转让后，不再担任华宁公司任何职务，并将所保管的公司证照、印章、合同、债权债务凭证、会计凭证等，在审计报告出来当日交给钱碧芳；祝长春转股后，华宁公司遗留的有关债权债务、与业主之间的纠纷、与有关部门的协调工作由钱碧芳与新股东负责处理，祝长春给予积极配合；双方同意本决议作出后，由秦淮区审计机构对华宁公司财务资产状况立即进行审计；审计结束后立即办理股权转让与公司工商变更手续；双方同意华宁公司碧水湾项目与华宇公司碧水湾西苑项目在征得两家物业公司与业主意见后进行对调管理；双方同意交家电场所交给钱碧芳管理使用，湖南路场所暂时交给钱碧芳作办公使用，碧水湾现场售楼部归华宁公司所有；双方同意华宁公司、华宇公司的所有工作人员的2002年度工资、奖金由华宇公司一次性支付；在公司审计报告作出之前，公司的所有对外支出立即暂停，祝长春不得对外签署合同与销售房屋，不得转移银行资金与房产；双方同意审计截止日期为
2002年11月12日，由双方责成公司员工积极配合，因工作人员不如实、及时配合造成延误，由祝长春向钱碧芳承担赔偿责任；祝长春同意钱碧芳在近期内可另行注册开办公司；其他未尽事宜，双方另行协商解决。
因《华宁决议》未能实际履行，钱碧芳于2002年12月12日诉至江苏省南京市江宁区人民法院(以下简称江宁区法院)，请求分割华宁公司、华宇公司财产。江宁区法院以(2003)江宁民一字第17号受理该案后，应钱碧芳的申请，冻结了华宁公司银行存款1375万元。经江宁区法院调解，祝长春与钱碧芳于2003年1月23日签订《江苏华宁华宇房地产开发有限公司股东大会决议》(以下简称《华宁华宇决议》)。《华宁华宇决议》第一条约定：经双方协商，祝长春将其所持有的华宁公司股权(1400万元)一次性转让给汪贤琛，钱碧芳将其所持有的华宇公司股权(250万元)一次性转让给祝明安，转股协议另行签订。《华宁华宇决议》第二条约定，在双方签订股权转让协议后，均不再担任对方公司的任何职务，并将各自保管的有关公司的证照、印章、档案、文件、合同、债权债务凭证等在当日交给对方。对两公司的资产及债权债务作如下调整：1．华宁公司给付华宇公司600万元；
2．华宁公司如收回城北路460亩地块，应给付华宇公司1400万元，如收回现金，则按70％的比例给付华宇公司；3．华宁公司碧水湾28亩土地使用权问题，由祝长春负责处理，如未能解决而发生补交出让金、罚款等，均由祝长春和华宇公司承担；4．华宁公司、华宇公司在2003年度企业所得税汇算时，按照实际报告所列应缴纳的所得税金额的70％由祝长春和华宇公司承担，
30％由钱碧芳和华宁公司承担；5．华宁公司碧水湾未售出的别墅第45幢、18幢、19幢、20幢、48幢、95幢、9幢、10幢、12幢、
15幢、17幢归华宁公司所有，其余第96幢、21幢、49幢、69幢、70幢、72幢、16-2幢、32-1幢、66-2幢归华宇公司所有，碧水湾西苑的三间门面房、三幢别墅、六套公寓归华宁公司所有，其余归华宇公司所有，会所全部归华宇公司；6．华宁公司享有的对江苏省南京市江宁区建设局(以下简称江宁区建设局)的债权1650万元(暂定)，由祝长春负责追回，在30日内支付完碧水湾小区的维修基金(约350万元)、紫薇花园物业维修基金(约196万元)、碧水湾小区前期拆迁费用120万元，碧水湾小区修路费用约100万元后，余额归祝长春和华宇公司所有；7．华宁公司与华宇公司截至
2003年1月22日相互之间的债权债务相互抵消，互不追偿；8．除上述所列项目外，华宁公司、华宇公司的其他资产和负债由各公司自行享有和处理。《华宁华宇决议》第三条约定：双方在签订《股权转让协议书》后，即在江宁区法院的监督下办理工商变更登记和公司资产调整的法律手续。
《华宁华宇决议》签订的当日，双方又签订《补充决议》约定：华宁公司承担碧水湾和紫薇花园项目未付工程款在550万元以下的部分，550万元以上部分由祝长春和华宇公司负责支付，工程款由祝长春确认后由钱碧芳支付。
2003年1月23日，江宁区法院组织各方进行交接，钱碧芳向祝长春出具一张
520万元的华宁公司转账支票，以履行支付华宇公司款项600万元义务，双方约定该款自被江宁区法院冻结之款项中支付，为配合支付，江宁区法院将对上述冻结账户予以解除冻结；祝长春、钱碧芳签署了转让华宁公司、华宇公司股权的相关法律文件，交钱碧芳的律师统一办理；钱碧芳代表华宁公司签署了将华宁公司享有的江宁区建设局之债权转移给华宇公司的相关法律文书交祝长春；祝长春与钱碧芳签订了关于江苏省南京市江宁区国土资源管理局
(以下简称江宁区国土局)退还土地款的分配协议。
2003年1月24日，江宁区法院就其所冻结的华宁公司银行存款1365万元予以解除冻结，但祝长春将520万元的支票送至华宁公司开户银行时被银行告知为空头支票，该账户内被江宁区法院解除冻结的华宁公司1365万元的存款已被钱碧芳全部取走。江宁区法院邮寄送达了于2003年1月24日作出的准许钱碧芳撤诉的通知书。
2004年12月1日，钱碧芳与汪贤琛变更了华宁公司的工商登记，将华宁公司的股东由祝长春变更为汪贤琛，将公司法定代表人变更为钱久忠(系钱碧芳之父)。
钱碧芳、华宁公司又至江宁区建设局，直接主张其已转移给华宇公司的债权。
华宁公司于2003年4月29日缴纳的税款所属期为2002年1月-12月的企业所得税35
514．55元；于2003年7月15日缴纳的税款所属期为2003年4月-6月的企业所得税186
304．15元；于2003年10月16日缴纳的税款所属期为2003年1月-9月的企业所得税20 485．55元：于
2003年3月6日缴纳的税款所属期为 2003年2月的一般营业税237
118．70元、教育附加税9484．75元、城市维护建设税 16
598．31元；于2004年1月17日缴纳的税款所属期为2003年度的其他印花税合计5164．75元、一般营业税、教育附加税、城市维护建设税等合计5790．22元。
2003年1月23日后，华宁公司主张其已支付碧水湾和紫薇花园项目各项工程款3 228078元。
祝长春和华宇公司向一审法院起诉称，祝长春与钱碧芳系股东关系，曾共同拥有华宁公司和华宇公司。华宁公司和华宇公司系共同股东持股公司，两公司在资金往来、从业人员等方面存在诸多关联。作为华宁公司、华宇公司股东的钱碧芳认为公司大股东祝长春在公司经营中侵害了公司利益及其股东权益，表示不能再继续与祝长春合作，曾于2002年12月12日诉至江宁区法院，请求分割华宁公司、华宇公司财产。江宁区法院受理后，应钱碧芳申请冻结了华宁公司1375万元的银行存款。
在江宁区法院组织调解下，祝长春与钱碧芳于2003年1月23日签订《华宁华宇决议》约定：1．祝长春同意将其所持有的
70％的华宁公司股权无偿转让给汪贤琛，钱碧芳同意将其所持有的25％的华宇公司股权无偿转让给祝明安。2．华宇公司与华宁公司之间的资产进行如下调整：(1)华宁公司给付华宇公司600万元；(2)华宁公司位于南京市江宁区碧水湾的别墅(96幢、21幢、49幢、69幢、70幢、16-2幢、32-1幢、
66-2幢)无偿变更登记至华宇公司名下归其所有；(3)华宁公司享有的对江宁区建设局债权1650万元以债权转移形式归华宇公司享有；(4)华宁公司享有的对江宁区国土局债权中的70％即1400万元归华宇公司所有。该决议中所涉及的第三人均对该决议不持异议，愿意配合履行。各方于
2003年1月23日在江宁区法院组织下进行如下交接：(1)钱碧芳向祝长春出具520万元的华宁公司转账支票，以履行支付华宇公司款项义务，该款自江宁区法院冻结之款项中支付，为配合支付，江宁区法院将对上述冻结账户解除冻结；(2)祝长春、钱碧芳签署了转让华宁公司、华宇公司股权的相关法律文件，交钱碧芳的律师统一办理；(3)钱碧芳代表华宁公司签署了将华宁公司拥有的对江宁区建设局的债权转移给华宇公司的相关法律文书交祝长春：(4)祝长春与钱碧芳签订了关于江宁区国土局退还土地款的分配协议。
2003年1月24日，江宁区法院对其冻结的华宁公司存款1365万元予以解冻，祝长春至华宁公司开户银行兑现520万元支票时被告知该支票为空头支票。
自2003年1月24日起至今，华宁公司由钱碧芳实际控制经营，华宇公司由祝长春实际控制经营。钱碧芳与华宁公司至今未支付上述520万元款项。
2003年12月1日，钱碧芳与汪贤琛变更了华宁公司工商登记，将华宁公司的股东由祝长春变更为汪贤琛，将公司法定代表人变更为钱久忠(系钱碧芳之父)。
因钱碧芳不配合将其持有的华宇公司股权转让至祝明安名下，华宇公司工商登记的股东仍为祝长春与钱碧芳。钱碧芳、华宁公司亦未依约将有关房产变更至华宇公司名下。钱碧芳、华宁公司至江宁区建设局直接主张已转移给华宇公司的债权，致使华宇公司无法实现债权利益，而且对江宁区国土局的华宁公司债权，祝长春及华宇公司亦未能享有。综上所述，钱碧芳、华宁公司未履行《华宁华宇决议》约定的任何义务，据此请求：1．钱碧芳及华宁公司连带给付华宇公司款项520万元；2．华宁公司将位于南京市江宁区碧水湾小区的别墅
(96幢、21幢、49幢、69幢、70幢、72幢、
16-2幢、32-1幢、66-2幢)的产权变更至华宇公司名下，如不能变更则由钱碧芳与华宁公司连带给付对价约1500万元(实际价值按照市场评估价计算)；3．华宁公司将其所享有的对江宁区建设局的债权1650万元转移归华宇公司所有；4．华宁公司将其享有的对江宁区国土局债权中的70％
(即1400万元)转移归华宇公司所有；5．钱碧芳协助祝长春、华宇公司将其所享有的华宇公司的25％股权(出资250万元)变更至祝明安名下；6．钱碧芳及华宁公司承担本案诉讼费用。
钱碧芳答辩称，华宁公司与华宇公司法定代表人均为祝长春，两公司的实际经营权亦由祝长春长期把持，钱碧芳负责销售工作。由于祝长春隐瞒经营信息，私自注册成立同业公司，存在隐匿公司资产、土地投资失误等不当行为，为维护自己的合法权益，钱碧芳要求清算公司资产。2002年
11月12日，双方签订《华宁决议》约定：(1)祝长春将其在华宁公司的股权一次性转让给汪贤琛，并退出华宁公司的经营；(2)双方委托审计机构对华宁公司截至2002年11月12日的财务状况进行审计，在审计报告作出前，公司的所有对外支出立即暂停。但此后，在江宁区法院审理期间，江苏众兴会计师事务所对两公司进行了初步审计，
2003年1月23日，双方达成《华宁华宇决议》及《补充决议》。2003年1月23日，双方在江宁区法院主持下就有关事项进一步达成协议：(1)华宁公司给付华宇公司520万元；(2)华宁公司、华宇公司的房产不再调整。同日，钱碧芳与祝长春在江宁区法院签订《债权转让及委托收款协议书》，双方交接了两公司的印章，钱碧芳向华宇公司开具一张未写日期的520万元转账支票(钱碧芳要求祝长春履行协议、当日将资料交接完后兑付支票)。但是：1．祝长春未按约定将华宁公司资料在当日交给华宁公司，致使钱碧芳无法核对华宁公司的工程款欠款数额。华宁公司账面工程欠款为1000多万元，钱碧芳多次向祝长春催要依约应由其承担的超出550万元部分的工程款均未果。印鉴交接后，钱碧芳至银行查询得知华宁公司账面金额与银行实际金额相差500多万元，因祝长春拒不说明去向，阻止祝长春520万元支票兑付系钱碧芳的自救举措。2．根据双方约定，祝长春应持委托书向江宁区建设局行使债权并划入华宁公司账户用于支付前述四项费用。但时至今日，华宁公司未获得分文，华宁公司只得撤销了对祝长春的委托，自行向江宁区建设局主张债权并正拟通过诉讼方式解决。3．华宁公司曾多次向江宁区国土局主张城北路
460亩土地使用权或返还2000万元土地出让金定金和预付款，均遭到拒绝，现正准备通过仲裁程序解决。4．钱碧芳接管华宁公司后，一直未能正常开展经营活动，原因是：祝长春负责经营期间产生的碧水湾工程质量纠纷和延期交房致客户索赔共形成了近二十起诉讼，华宁公司赔偿了近百万元；因无工程资料，工程款欠款无法核算并支付，致使大量施工队伍多次围堵华宁公司办公场所，华宁公司几乎陷于瘫痪状态。
5．2003年度企业所得税经汇算尚应交税 2500万元，按约定祝长春应承担70％即 1750万元，但祝长春至今拒绝承担。
因此，钱碧芳认为，1．由于祝长春拒绝交付华宁公司工程资料的行为致华宁公司无法核对工程款及祝长春、华宇公司应分担的数额，阻止其兑付支票是自力救济行为，亦是同时履行抗辩的合法行为，故在祝长春未同时履行该项义务的情况下，应驳回其要求支付520万元的诉讼请求。2．因争议双方在2003年1月23日调解时已明确华宁公司、华宇公司的房产不再调整，故祝长春、华宇公司要求钱碧芳及华宁公司变更8幢别墅的产权或赔付对价1500万元的诉讼请求没有合同依据和法律依据，依法应予驳回。3．因争议双方协商一致的是将对江宁区建设局债权在实现并支付完华宁公司四项费用后的余额才归华宇公司所有，现债权转让条件尚未成就，故祝长春、华宇公司要求该1650万元债权转归华宇公司所有的诉讼请求违反双方约定，依法应予驳回。4．华宁公司对江宁区国土局的债权，依合同性质不得转让(不符合法律规定的土地使用权转让条件)，且尚未取得权利或获得相应补偿，故祝长春、华宇公司要求取得对江宁区国土局1400万元债权的诉讼请求没有事实依据和法律依据，依法应予驳回。5．因祝长春拒绝承担欠税款而华宁公司的资产主要体现为华宁公司对华宇公司的应收账款，钱碧芳及华宁公司现客观上无力独自承担应纳税款，在该问题得到妥善解决前拒绝转让在华宇公司的股权。
钱碧芳、华宁公司反诉称，双方于2002年11月12日签订《华宁决议》，2003年1月23日签订《华宁华宇决议》，同日又签订《补充决议》。上述协议签订后，祝长春及华宇公司并未按约履行，侵害了钱碧芳及华宁公司的合法权益。其主要事实及理由：
(一)关于华宁公司应交税款问题。根据《华宁华宇决议》约定，华宁公司和华宇公司在
2003年企业所得税汇算时，按照会计师事务所审计报告所列应缴所得税金额的
70％，由祝长春与华宇公司承担。祝长春控制华宁公司期间遗留了大量税务问题，却未向钱碧芳及华宁公司交代应交税收情况，又拒不交付相关工程、财务资料，使得华宁公司无法准确核算应缴税款，只能按现有资料进行预交2003年度华宁公司税款242
304．49元，并代华宇公司缴纳税收查补款120000元。上述2003年度华宁公司预交的所得税242
304．49元的70％应由对方承担，待相关资料移交后经核算或税务部门查补后的华宁公司应交税款亦应由对方承担70％。(二)关于550万元以上部分的工程款。《补充决议》约定：“华宁公司紫薇花园和碧水湾项目未付工程款(各项)截止2003年1月22日，在550万元以下部分由华宁公司和钱碧芳负责支付，550万元以上部分由祝长春和华宇公司负责，工程款的支付由祝长春确认后由钱碧芳支付。”决议作出后，因对方拒不交付工程资料及相关的合同、文件，导致至今无法确定所欠工程款的数额，现要求法院委托审计机构对工程欠款进行审计，以确定祝长春和华宇公司应承担的数额。(三)关于公司资料和项目资料。根据约定，双方签署《股权转让协议书》后，均不再担任对方公司的任何职务，并将各自保管的有关公司的证照、印章、档案、文件、合同、债权债务凭证等在当日交给对方，而祝长春至今亦未履行此项合同义务。(四)关于车辆问题。华宁公司所有的别克(苏A-T6921)、依维克(苏A-49440)、桑塔纳(苏A-51772)、昌河(苏
A-T5045)轿车各一辆，现仍由对方占有使用，经多次催要至今拒不返还。(五)关于祝长春给华宁公司造成的损失问题。祝长春经营华宁公司期间，因经营策略失误，产生退花园面积款和工程维修费用及赔款等共计1
060 082元，该款项应由祝长春承担。(六)祝长春擅自动用华宁公司资金 7 385
582．57元。《华宁决议》第11条约定：在公司审计报告作出之前，公司所有对外支出立即暂停，祝长春不得对外签署合同与销售房屋，不得转移银行资金与房产。但祝长春从2002年11月12日至2003年1月23日期间，擅自动用华宁公司的
7 385
582．57元资金用于支付碧水湾西苑的工程欠款，而2003年1月23日双方签订《华宁华宇决议》约定：碧水湾西苑小区未售完的部分归华宇公司所有，祝长春也不再担任华宁公司的股东。由此可见祝长春存在明显的侵权行为，祝长春及华宇公司理应返还上述款项。(七)祝明安对华宇公司的股权受让应支付相应的对价。根据双方约定，钱碧芳将其所有25％的华宇公司股权转让给祝明安，协议签订后，钱碧芳即不再参与华宇公司的事务。钱碧芳及华宁公司认为，祝明安要求受让该25％的华宇公司股权，应支付相应对价。现因祝长春等拒绝支付相应对价，故应当对截至2003年1月23日华宇公司的资产价值进行审计，以确定祝长春、祝明安应支付的对价金额。(八)对祝长春控制华宁公司期间隐匿的债权债务的处理。2003年1月23日之前，华宁公司一直由祝长春实际控制并经营，双方谈判期间，祝长春隐匿了大量的债权债务，除以上所列之外，祝长春隐匿的华宁公司的债务应由其自行承担，隐匿的债权和收益应返还给钱碧芳及华宁公司。综上，祝长春及华宇公司的行为已经侵害了钱碧芳及华宁公司的权益，严重影响了华宁公司的正常经营。据此请求：1．祝长春、华宇公司承担华宁公司已预交的2003年度企业所得税242
300．49元的70％，即 169
613．14元；承担华宁公司因资料不全尚未确定应缴企业所得税的70％，约1．2万元；2．祝长春、华宇公司承担华宁公司已缴纳的一般营业税、印花税等共计
274 156．73元的70％即191
909．71元；承担税务部门尚未确认的华宁公司其他应交各项税款(营业税及附加税、土地增值税、印花税等)的70％，约1．4万元；3．祝长春、华宇公司承担经审计确认的华宁公司截至
2003年1月23日应付各项工程款中超过
550万元以上部分的各项工程款，约150万元；4．祝长春、华宇公司返还华宁公司所有的公司资料和项目资料；5．祝长春、华宇公司返还华宁公司所有的别克(苏A-
T6921)价值357 368元、依维克(苏A- 49440)价值147 643元、桑塔纳(苏- 51722)价值172
000元、昌河(苏A- T5045)价值48
500元各一辆，如不能返还，按原价赔偿；6．祝长春、华宇公司承担祝长春在经营华宁公司期间因延期交房、工程质量问题而赔偿客户的各项经济损失共计1
060 082元；7．祝长春、华宇公司返还2002年11月12日至2003年1月23日谈判期间侵占的华宁公司资金 7
385
582．57元；8．祝长春、祝明安向钱碧芳给付华宇公司股权转让对价约600万元；9．祝长春、华宇公司承担其他隐匿的华宁公司2003年1月23日前发生的债务并返还隐匿的华宁公司2003年1月23日前形成的权益，约350万元的70％，即245万元。
10．祝长春返还钱碧芳存留在华宇公司的私人办公及生活用品，价值约5万元；11．以上1-10项诉讼请求数额合计为 19
558 698．42元，如经审计后确定的数额有超出部分，对超出部分保留诉权；12．由对方承担本案的诉讼费用。
一审法院认为，祝长春与钱碧芳于 2002年11月12日签订的《华宁决议》、于
2003年1月23日在江宁区法院主持下签订的《华宁华宇决议》，系双方真实意思表示，不违反国家有关法律规定，并得到汪贤琛、祝明安认可，依法应当认定为合法有效。上述各项决议达成后，双方均应依约定内容享有权利、履行义务。《华宁华宇决议》达成后，钱碧芳利用江宁区法院让其办理两公司股权转让工商变更手续的有利条件，只将祝长春在华宁公司的股权办理变更至汪贤琛名下并变更华宁公司的法定代表人为其父钱久忠，扣压了关于转让其在华宇公司股权的转让协议等资料，不办理将其在华宇公司的股权转让至祝明安名下的工商变更手续，且在江宁区法院解除冻结华宁公司银行存款1365万元时，将应付给华宇公司的520万元款项取走，还直接至江宁区建设局主张其本已转移给华宇公司的债权等做法，均有违诚信原则。钱碧芳只享受决议赋予其的权益而不承担约定义务的行为，是纠纷产生的根本原因，对此，钱碧芳应承担主要责任。
案件争议焦点是祝长春、华宇公司的本诉请求及钱碧芳、华宁公司的反诉请求应否支持问题。
(一)关于祝长春、华宇公司本诉的五项诉讼请求应否支持问题。
1．关于钱碧芳与华宁公司应否连带给付华宇公司520万元款项之诉请。该520万元是祝长春与钱碧芳为调整华宁公司与华宇公司资产，为分割江宁区法院冻结的华宁公司银行存款1365万元而作的约定。《华宁华宇决议》中双方约定华宁公司分给华宇公司600万元，后在江宁区法院调解下，双方同意调整为520万元，钱碧芳亦按约定开具了银行支票。现祝长春与华宇公司请求判令华宁公司给付华宇公司520万元，应予支持。虽《华宁华宇决议》约定的只是华宁公司对华宇公司的给付，但本质上却系钱碧芳与祝长春交易华宁公司与华宇公司股权的结果。因此，钱碧芳应对华宁公司给付华宇公司520万元款项承担连带给付义务。
2．关于华宁公司将位于南京市江宁区碧水湾小区的96幢、21幢、49幢、69幢、
70幢、72幢、16-2幢、32-1幢、66-2幢别墅的产权变更至华宇公司名下，如不能变更则由钱碧芳与华宁公司连带给付对价约
1500万元(实际价值按照市场评估价计算)之诉请。该诉请是《华宁华宇决议》明确约定内容，虽在江宁区法院主持双方调解时，要求双方就华宁公司与华宇公司的房产不再调整，祝长春和钱碧芳亦表示可以不再调整。但祝长春认为其作出不再调整两公司房产的意思表示系基于双方全面履行《华宁华宇决议》、尽快解决争议问题而作的让步。现钱碧芳不讲诚信的行为已严重侵害了祝长春作为两公司大股东的合法权益，故坚决要求按《华宁华宇决议》中约定的条款履行。一审法院认为江宁区法院对祝长春、钱碧芳不再调整两公司房产的要求，对祝长春、钱碧芳均不产生法律意义上的约束力。本着公平合理的原则，祝长春要求依照《华宁华宇决议》约定内容分割两公司资产，应予支持。
3．关于华宁公司将债权转移给华宇公司的两项诉请，即对江宁区建设局的1650万元债权和对江宁区国土局债权中的70％
(即1400万元)转移归华宇公司所有之诉请。因《华宁华宇决议》明确约定“华宁公司享有的对江宁区建设局的债权1650万元
(暂定)，由祝长春负责追回，在30日内支付完碧水湾小区的维修基金(约350万元)、紫薇花园物业维修基金(约196万元)、碧水湾小区前期拆迁费用120万元，碧水湾小区修路费用约100万元后，余额归祝长春和华宇公司所有”；“华宁公司如收回城北路460亩地块，应给付华宇公司
1400万元，如收回现金，则按70％的比例给付华宇公司”。一审审理期间各方均表示愿意照此履行，应支持。
4．关于钱碧芳协助祝长春、华宇公司将其所享有的华宇公司的25％股权(出资
250万元)变更至祝明安名下之诉请。钱碧芳已将祝长春在华宁公司的股权无偿转让至其母名下并办理了工商登记变更手续，故应按《华宁华宇决议》约定将其在华宇公司的股权转让给祝明安。
(二)关于钱碧芳和华宁公司所提11项反诉请求应否支持问题。
1．关于祝长春、华宇公司承担华宁公司已预交的2003年度企业所得税 242 304．49元的70％，为169
613．14元；承担华宁公司因资料不全尚未确定应缴企业所得税的70％，约1．2万元之诉请。钱碧芳和华宁公司提出审计华宁公司和华宇公司财务账目，以确认两公司应缴纳的企业所得税及其他各类税费数额。但依照双方“华宁公司和华宇公司在2003年度的企业所得税由祝长春和华宇公司承担70％；钱碧芳和华宁公司承担30％”的约定，只要华宁公司和华宇公司各自将其2003年度的完税凭证拿出即可解决该项争议，故无需通过审计确定。华宁公司提供证据证明其已缴纳2003年度的企业所得税款额为
206 789．70元，按双方约定，祝长春和华宇公司应承担144
752．79元。钱碧芳和华宁公司要求祝长春、华宇公司承担 169
613．14元和1．2万元税款无事实依据，不予支持。对华宁公司和华宇公司尚未缴纳的2003年度的企业所得税，双方可在实际缴纳后，凭完税凭证要求对方按约定的比例另行处理。
2．祝长春、华宇公司承担华宁公司已缴纳的一般营业税、印花税等共计 274 156．73元的70％，即191
909．71元；承担税务部门尚未确认的华宁公司其他应交各项税款(营业税及附加、土地增值税、印花税等)的70％，约1．4万元之诉请。《华宁决议》已考虑税费因素，但并未对双方如何承担作出约定。《华宁华宇决议》只明确了双方对企业所得税承担比例，且该决议第八条明确约定“除上述所列项目外，华宁公司、华宇公司的其他资产和负债由各公司自行享有和处理”。因此，钱碧芳和华宁公司该反诉请求没有依据，不予支持。
3．关于祝长春、华宇公司承担经审计确认的华宁公司截至2003年1月23日应付碧水湾小区和紫薇花园各项工程款中超过550万元以上部分的各项工程款约150万元之诉请。钱碧芳和华宁公司要求审计华宁公司账目以确认应付工程款数额。依照双方“华宁公司承担碧水湾和紫薇花园项目未付工程款在550万元以下的部分，
550万元以上部分由祝长春和华宇公司负责支付，工程款的支付由祝长春确认后由钱碧芳支付”的约定，只要钱碧芳和华宁公司将由祝长春确认后给付的工程款凭证拿出，超出550万元部分由祝长春和华宇公司承担即可，无需通过审计确认。现华宁公司提供的2003年1月23日后，其支付各项工程款，共计3
228 078元，尚未达到 550万元，因此，钱碧芳和华宁公司无权要求祝长春和华宇公司承担该项工程款。
4．关于祝长春、华宇公司返还华宁公司所有公司资料和项目资料之诉请。两公司账册等资料已封存于一审法院，判决后将全部归还双方。
5．关于祝长春、华宇公司返还华宁公司所有的别克(苏A-T6921)价值357
368元、依维克(苏A-49440)价值147 643元、桑塔纳(苏A-51722)价值172 000元、昌河
(苏A-T5045)价值48
500元各一辆，如不能返还，按原价赔偿之诉请。因该四辆汽车均在2001年1月17日前购置，别克和昌河已被华宁公司奖励员工归私人所有，且《华宁华宇决议》明确约定“除上述所列项目外，华宁公司、华宇公司的其他资产和负债由各公司自行享有和处理”。因此，钱碧芳和华宁公司主张这四辆汽车所有权的请求，不予支持。
6．关于祝长春应承担在经营华宁公司期间因延期交房、工程质量问题而赔偿客户的各项经济损失共计1 060
082元的诉请。2003年1月23日之前，祝长春为华宁公司董事长，钱碧芳为华宁公司总经理，在钱碧芳提交的华宁公司的财务支出凭证上，既有祝长春签字，亦有钱碧芳签字，证明系双方共同经营的结果。2003年1月23日之后，华宁公司已由钱碧芳全面管理，且双方已明确约定“除上述所列项目外，华宁公司、华宇公司的其他资产和负债由各公司自行享有和处理”。现钱碧芳要求祝长春承担所谓经济损失1
060082元，无事实和法律依据，不予支持。
7．关于祝长春和华宇公司应返还2002年11月 12日至2003年1月23日谈判期间侵占的华宁公司资金 7 385
582．57元之诉请。钱碧芳认为双方签订《华宁华宇决议》后，其通过查阅华宁公司财务账，才发现祝长春在2002年11月12日至2003年1月23日期间，利用掌控华宁公司经营和财务之便，将华宁公司款项5
645 450．16元用于支付华宇公司的工程款，华宁公司还应有1 740
132．41元现金。自己是在毫不知情的情况下签订了《华宁华宇决议》，该5 645 450．16元款项及1 740
132．41元现金，不应属于《华宁华宇决议》约定的内容，祝长春和华宇公司应当返还7 385
582．57元。祝长春认为，双方曾共同拥有华宁公司和华宇公司，两公司系共同股东持股公司，在资金往来、从业人员等方面存在诸多关联。华宇公司的财务记账凭证和银行转账支票存根，证明华宇公司在2002年6月27日至2002年12月
31日期间，共为华宁公司对外付款达
3071．8万元。钱碧芳作为两公司小股东，应当知道其在与两公司大股东分割两公司资产时其应得资产的比例，因此双方《华宁华宇决议》才明确约定“华宁公司与华宇公司截至2003年1月22日相互之间的债权债务相互抵消，互不追偿”。一审法院认为，在
2003年1月23日之前，华宁公司和华宇公司均由祝长春和钱碧芳共同经营管理，钱碧芳理应知晓两公司在财务往来上存在互为对方付款状况。且《华宁华宇决议》明确约定“华宁公司与华宇公司截至2003年
1月22日相互之间的债权债务相互抵消，互不追偿”。因此，钱碧芳要求认定 7 385
582．57元不属《华宁华宇决议》约定的内容，祝长春和华宇公司应当返还 7 385 582．57元的请求，不予支持。
8．关于祝长春和华宇公司承担其他隐匿的华宁公司2003年1月23日前发生的债务并返还其隐匿的华宁公司2003年1月23日前形成的权益，约350万元的
70％，即245万元之诉请。因钱碧芳和华宁公司并未举证证明祝长春和华宇公司隐匿华宁公司在2003年1月23日前产生的债务和权益的事实，故该项诉请无事实依据，不予支持。
9．关于祝长春、祝明安向钱碧芳给付华宇公司股权转让对价约600万元之诉请。《华宁华宇决议》约定，“祝长春将其所持有的在华宁公司的股权(1400万元)一次性转让给第三人汪贤琛享有，钱碧芳将其所持有的在华宇公司的股权(250万元)一次性转让给祝明安享有，转股协议另行签订”。祝长春将其在华宁公司的股权转让给钱碧芳之母，钱碧芳将其在华宇公司的股权转让给祝长春之父，双方对两公司资产的调整是平衡转让股权的对价。钱碧芳在江宁区法院签署《华宁华宇决议》及相关协议后，在未支付任何对价的情况下将祝长春拥有的华宁公司股权转至自己母亲名下并办理了工商登记变更手续，现要求祝长春、祝明安向其支付转让25％华宇公司股权的对价600万元，违反双方的约定，该请求不予支持。
10．关于祝长春返还钱碧芳存留在华宇公司的私人办公及生活用品，价值约5万元之诉请。虽该诉请不在争议案件审理范围之内，理应驳回，但祝长春在本案审理中表示钱碧芳的私人物品可随时取回，故钱碧芳应自行取回该项诉请之物品。
综上，祝长春和华宇公司诉请合法有据，应予支持；钱碧芳和华宁公司的反诉请求，对合法有据的部分依法予以支持，对无事实和法律依据的部分依法予以驳回。依照《中华人民共和国民事诉讼法》第一百二十八条、《中华人民共和国合同法》第六条、第八条、第四十四条第一款、第六十条、第八十八条之规定，判决：(一)华宁公司于判决生效后十日内，给付华宇公司款项520万元，钱碧芳对华宁公司的此项付款义务承担连带责任。(二)钱碧芳和华宁公司于判决生效后十日内，将碧水湾小区96幢、
21幢、49幢、69幢、70幢、72幢、16-2幢、
32-1幢、66-2幢的所有权办理至华宇公司名下；祝长春和华宇公司在判决生效后十日内将碧水湾西苑的三间门面房、三幢别墅、六套公寓的所有权办理至华宁公司名下。(三)钱碧芳和华宁公司于判决生效后十日内，将其享有的对江宁区建设局的债权1650万元，转让给祝长春和华宇公司。祝长春和华宇公司取得该款30日内，应支付碧水湾小区的维修基金(350万元)、紫薇花园物业维修基金(196万元)、碧水湾小区前期拆迁费用120万元、碧水湾小区修路费用100万元。(四)钱碧芳和华宁公司于判决生效后十日内，将其享有的对江宁区国土局的债权中的1400万元转让给祝长春和华宇公司。(五)钱碧芳于判决生效后十日内，将其享有的华宇公司的25％股权(250万元)，转让至祝明安名下，并办理好工商变更登记手续。(六)祝长春和华宇公司于判决生效后十日内，给付华宁公司已缴纳2003年度的企业所得税税款
144
752．79元。(七)华宁公司和华宇公司于判决生效后十日内，将封存在一审法院的各自财务账册等资料自行取回。(八)钱碧芳自行取回其存放在华宇公司的私人物品。(九)驳回钱碧芳和华宁公司的其他反诉请求。本诉案件受理费276010元由钱碧芳和华宁公司负担；反诉案件受理费
107 893．49元，由祝长春和华宇公司负担 26 974元，钱碧芳和华宁公司负担80919.49元。
钱碧芳、华宁公司不服一审判决，向本院提起上诉称，一审法院拒不采纳钱碧芳对两公司进行审计的要求，以致在未审计的情况下就对公司股权和资产予以分割，造成一审判决错误，故要求二审法院对两公司进行审计，撤销一审判决并依法改判。其主要理由：
(一)一审判决所有判项均有错误。1．判决由钱碧芳、华宁公司连带给付华宇公司520万元不当。钱碧芳及华宁公司之所以未给付对方该笔款项，系因为根据双方约定祝长春、华宇公司应履行交付华宁公司证照、印章等义务，在其未履行该义务前提下，钱碧芳及华宁公司对给付520万元款项享有同时履行抗辩权。另外，签订《华宁华宇决议》的次日，钱碧芳发现华宁公司账上560余万元资金被祝长春擅自用于支付华宇公司外欠的工程款，故即使华宁公司给付对方520万元亦应予以抵消。2．一审判决华宁公司应缴纳的税款问题不当。祝长春及华宇公司签约后未如约履行义务，华宁公司在由祝长春控制期间遗留了严重的税务问题，在双方协商谈判过程中不如实披露华宁公司应交税款情况，拒不交付相关工程、财务资料、使得华宁公司无法准确核算应缴税款，只能按现有资料预交2003年度税款242
304．49元，并代华宇公司缴纳税收查补款1．2万元。双方《华宁决议》关于税款问题的约定并不是单指“2003年度企业所得税”，而是包括了华宁、华宇公司三个项目的各项税款。而一审判决仅部分支持了钱碧芳及华宁公司关于税收的反诉请求，显失公平，亦不符合事实和法律规定。请求二审法院应依法判令对方按双方约定全面履行其应承担的纳税义务。对方承担2003年度华宁公司预交的所得税242
304．49元的70％，同时要求明确尚未确定的华宁公司应交税款待经核算或税务部门查补后亦由祝长春及华宇公司承担其中的70％。3．关于一审判决第三项钱碧芳和华宁公司将碧水湾小区96幢、21幢、49幢、69幢、70幢、72幢、16-2幢、32-
1幢、66-2幢的所有权办理至华宇公司名下，祝长春和华宇公司将碧水湾西苑的三间门面房、三幢别墅、六套公寓的所有权办理至华宁公司名下问题，与事实不符。2003年1月23日在江宁区法院调解时，双方均已经作出上述房屋不再调整的真实意思表示，且在当时的卷里予以记载。一审庭审时钱碧芳已经提交了相关证据。因此，一审法院的该项判决没有事实和法律依据，应依法改判。4．一审判决将华宁公司享有的对江宁区建设局1650万元债权转让给祝长春和华宇公司所有无事实及法律依据。祝长春在约定期限内未按《华宁华宇决议》约定履行追回债权的义务，华宁公司才书面通知祝长春该债权由华宁公司负责追回。而且直至今日江宁区建设局并未确认该债权的实际数额，也拒绝向华宁公司支付。因该债权涉及第三人权益且处于不确定状态，不宜于本案中进行处理。一审判决缺乏事实和法律依据，依法应予驳回或改判。
5．一审法院判决将华宁公司享有对江宁区国土局债权中的1400万元转移给华宇公司所有存在问题。该债权涉及城北路460亩土地使用权问题，至今尚未解决。根据《华宁华宇决议》约定，华宁公司如实现该债权才能将其中70％给付华宇公司。截至目前，华宁公司一直在积极主张却并未实现此债权，所以一审此判项内容目前尚无从谈起。而且双方对此问题后来还有专门约定，故如果判决上述债权转移给华宇公司，亦应同时判决其依约履行给付钱碧芳本金624万元。6．关于一审判决第五项判令钱碧芳将其享有的华宇公司的25％股权
(250万元)转让给祝明安的问题。《华宁华宇决议》约定“钱碧芳将其在华宇公司股权转让给祝明安”，是有偿转让股权的意思表示，因此在祝明安未支付对价前提下提出此项请求，无事实和法律依据。如对方认为是无偿转让，则应属赠与性质，而本案中，该赠与标的物即25％股权并未办理过户手续，赠与并未生效。因此，应驳回对方的此项诉讼请求。其实钱碧芳将华宇公司股权转让给祝明安，将不再参与华宇公司的任何事务，对方理应支付相应的对价约600万元，一审判决未支持钱碧芳反诉主张祝长春、祝明安受让华宇公司股权应支付相应对价的请求不当，应予改判。
(二)一审判决对钱碧芳和华宁公司诸多反诉请求均未予支持，应予改判。具体而言：1．关于超出550万元以上部分的工程款问题。《补充决议》约定：“华宁公司紫薇花园和碧水湾项目未付工程款(各项)截止
2003年1月22日的在550万元以下部分由华宁公司和乙方钱碧芳负责支付，550万元以上部分由甲方祝长春和华宇公司负责，工程款的支付由甲方确认后由乙方支付。”由于祝长春拒不交付工程资料及相关的合同、文件，使得至今无法确定所欠工程款的具体数额，现要求二审法院通过审计确定祝长春和华宇公司应承担的数额。2．关于碧水湾28亩土地使用权问题。《华宁华宇决议》后，双方对此事又有进一步约定，依据“华宁公司碧水湾28亩土地使用权问题由甲方负责处理，如未能解决而发生补充出让金、罚款等，均由甲方和华宇公司承担”之约定，请求二审法院依法支持华宁公司的该项请求。3．关于返还华宁公司车辆问题。华宁公司所有的别克(苏A-
T6921)、依维克(苏A-49440)、桑塔纳(苏
A-51722)、昌河(苏A-T5045)轿车各一辆，现仍由对方占有使用，经多次催要仍拒不返还。一审判决以其公司已将车辆奖励给职工的认定是错误的，因为作为公司固定资产的车辆由一人擅自决定用于奖励和分配是违法的，《华宁决议》明确约定“双方对各自管理的下属工作人员的私下许诺由承诺人自行承担兑现，不得以公司财产支出”，因此，对方无权处置，应依法予以返还。4．因祝长春经营不善给华宁公司造成的1
060082元损失应依法予以赔偿。祝长春经营华宁公司期间，由于经营策略失误，因退花园面积款和工程质量问题产生的维修费用及赔款共计1
060
082元，理应由祝长春承担。5．关于祝长春擅自动用华宁公司的资金依法应予以返还并赔偿由此造成的经济损失。祝长春擅自动用华宁公司资金7
385 582．57元，2002年11月
12日的《华宁决议》约定：在公司审计报告作出之前，公司的所有对外支出，立即暂停，祝长春不得对外签署合同与销售房屋，不得转移银行资金与房产。决议签订后，祝长春从2002年11月12日至2003年1月23日期间，擅自动用华宁公司的
7 385
582．57元资金用于支付碧水湾西苑的工程欠款，而2003年1月23日双方签署《华宁华宇决议》约定：“碧水湾西苑小区未售完的部分归华宇公司所有而祝长春也不再担任华宁公司的股东。”可见，祝长春在两个多月时间内存在明显的侵权行为，祝长春、华宇公司应当返还上述款项，并承担由此给华宁公司造成的经济损失。6．关于祝长春在经营华宁公司期间债权、债务问题应依据事实和法律，作出公正裁决。祝长春在控制华宁公司期间隐匿的债权债务的处理在2003年1月23日前，华宁公司一直由祝长春实际控制并经营，在双方谈判期间，祝长春隐匿了大量的债权债务，除以上所列之外，祝长春隐匿的华宁公司的债务应由其自行承担，祝长春隐匿的债权和收益应返还给华宁公司。
综上，据此请求：1．祝长春、华宇公司承担华宁公司预交2003年度企业所得税 242 304．49元的70％，即169
613．14元；承担华宁公司因资料不全尚未确定应缴企业所得税的70％约1．2万元。
2．判令祝长春、华宇公司承担：华宁公司已交一般营业税、印花税等共计274 156．73元的70％即 191
909．71元；税务部门尚未确认的华宁公司其他应交各项税款(营业税及附加、土地增值税、印花税等)的70％，约1．4万元。
3．祝长春、华宇公司承担经审计确认的华宁公司截至2003年1月23日应付各项工程款中超过550万元以上部分的各项工程款，约150万元。4．返还属于华宁公司的公司资料和项目资料；5．依法确定华宁公司碧水湾28亩土地的使用权，该土地使用权遗留问题及由此而发生的一切费用由祝长春、华宇公司承担。
6．返还华宁公司所有的别克(苏A-T6921)价值357 368元、依维克(苏A-49440)价值147
643元、桑塔纳(苏A-51722)价值172 000元、昌河(苏 A-T5045)轿车价值48
500元各一辆，如不能返还，按原价赔偿。7．祝长春承担在其经营华宁公司期间因延期交房、工程质量问题而赔偿客户的各项经济损失共计
1 060082元。 8．祝长春、华宇公司返还2002年11月12日至2003年1月23日谈判期间侵占华宁公司资金7
385
582．57元工程款。9．祝长春、祝明安支付钱碧芳拥有的华宇公司股权转让的对价600万元。10．祝长春承担其隐匿的华宁公司
2003年1月23日前发生的债务并退还隐匿的华宁公司2003年1月23日前形成的权益，约350万元的70％，即245万元。11．祝长春返还其擅自支取的约27
020427．4元并承担该笔款项的税金。12．请求二审法院依法对该案所涉财产进行审计。
13．对审计后的超出部分钱碧芳及华宁公司保留诉权。14．祝长春、华宇公司承担全部诉讼费用。
祝长春和华宇公司答辩称，钱碧芳及华宁公司上诉理由不成立，一审判决认定事实清楚、适用法律正确，应予维持。具体理由如下：
(一)钱碧芳及华宁公司关于税款的上诉理由不成立。《华宁决议》对税款的种类及负担比例无明确约定，且也没有实际履行，所以才有后续的纠纷。《华宁华宇决议》已经明确约定华宁、华宇公司2003年度的所得税由华宇公司承担70％、华宁公司承担30％。根据该约定，所得税以外的其他税种并不能按此比例负担。一审判决不支持钱碧芳和华宁公司对尚未实际发生的税款及对所得税之外的营业税、印花税等税款主张权利的请求，完全符合双方对税收承担范围的约定，对方该项上诉理由不能成立，应予驳回。
(二)关于工程款超过550万元部分的负担问题。《补充决议》约定，截至2003年
1月23日的华宁公司所开发碧水湾、紫薇花园工程款550万元以下部分由钱碧芳负责支付，超过部分由祝长春负责支付，款项需由祝长春确认后钱碧芳方能支付。钱碧芳未能举证证明其支付工程款已经超过
550万元，一审判决驳回其该项请求符合双方约定和客观事实，该项上诉请求无任何意义，二审法院应当予以驳回。
(三)关于华宁公司的公司资料和项目资料、四辆汽车及钱碧芳个人物品等一些实物的返还问题。钱碧芳并未证明华宁公司的公司资料和项目资料均在祝长春控制之下，一审法院将已经确认并收集到的资料查封于法院并判令双方自行取回是恰当的。钱碧芳存放于华宇公司的私人物品，一审已判令其自行取回，祝长春及华宇公司对此并无异议，故其还为此上诉，没有实际意义。四辆汽车均为2001年1月17日之前购买，早在签订《华宁华宇决议》之前已经被处置，根据双方约定，属于无需另行解决之事项，一审判决正确无误。
(四)关于所谓的祝长春给华宁公司造成1 060 082元工程质量赔偿款损失、擅自动用华宁公司资金7 385
582．57元、承担隐匿的华宁公司债务及退还隐匿的华宁公司权益245万元等问题。2003年1月23日之前，钱碧芳直接参与公司的日常经营，华宁公司的经营结果钱碧芳应当负有同样责任。华宁公司和华宇公司是祝长春和钱碧芳共同持股控制的公司，两公司在资金方面有诸多关联往来，正是考虑这一特殊情况，双方在《华宁华宇决议》中明确约定，“华宁、华宇两公司截止至2003年1月22日相互间的债权债务相互抵消，互不追偿”，“除决议有约定的项目外，两公司的其他资产和负债由各公司自行承担和处理”。钱碧芳主张由祝长春承担隐匿华宁公司债务、退还隐匿华宁公司债权245万元，但时至今日，也未能举证证明。因此，一审判决对上述问题的认定并无不当。
(五)关于祝长春、祝明安支付钱碧芳拥有的华宇公司25％股权对价600万元问题。《华宁华宇决议》及其他相关文件均表明，祝长春将其所有的华宁公司70％股权转让给钱碧芳之母汪贤琛，钱碧芳将其所有的华宇公司25％股权转让给祝长春之父祝明安，双方均无须专门为此支付对价。祝长春早已依约将其拥有的华宁公司70％股权无偿转让给了钱碧芳之母汪贤琛，而钱碧芳却迟迟未履行应尽之义务，故其理应尽快转让其所拥有的华宇公司25％股权且无权要求获取对价，一审判决该判项正确，应予维持。
(六)关于碧水湾28亩土地使用权及要求祝长春和华宇公司返还擅自支取 27
020427．4元款项问题。这些问题并不是钱碧芳及华宁公司一审所诉请之事项，是二审增加的诉讼请求，祝长春及华宇公司对于增加部分不予答辩，根据民事诉讼的基本要求，上诉请求不能超出一审诉请范围，所以，二审法院应驳回其该上诉请求。
(七)关于审计及对超出部分钱碧芳和华宁公司保留诉权问题。华宁、华宇两公司股东均为祝长春和钱碧芳，双方进行股权调整时没有约定采取按照审计结论进行财产分割的方法，而是基于两位股东对公司的了解及大致估算进行的，并在此基础上正式签订了《华宁华宇决议》等有效决议。现祝长春及华宇公司已经全部履行了自己应尽的义务，对方却又提出要重新通过审计分割公司财产，明显不公。而且，将要求审计作为二审中一项独立的诉讼请求，也不合适。至于所谓对超出部分“保留诉权问题”，充分说明对方到目前为止仍无法明确自己的诉请究竟是什么，其上诉所提诉请都是其凭空假想的，对这样的诉讼请求只能驳回。一审法院未支持钱碧芳及华宁公司审计要求的理由恰当，结论正确，请求二审法院予以采信。
其他事项，均同意一审判决。双方达成协议后，钱碧芳出具“空头支票520万元”、办理华宁公司变更工商登记手续、将祝长春拥有的华宁公司70％股权办至汪贤琛名下，在其已经享有双方约定内容中全部权利的情况下，还提起上诉，足见其缺乏基本的诚信。总之，钱碧芳和华宁公司上诉请求缺乏事实依据和法律依据，应全部予以驳回。
本院经审理查明：为落实《华宁华宇决议》内容，2003年1月23日，钱碧芳、华宁公司与祝长春及华宇公司签订了《关于碧水湾28亩土地使用权问题的处理协议》、《关于城北路460亩地块的处理协议》。关于城北路460亩地块即华宁公司享有的对江宁区国土局债权问题，双方约定：该土地在华宁公司名下，祝长春和华宇公司同意由华宁公司收回，如收回土地归华宁公司开发，华宁公司支付给华宇公司1400万元；如收回现金，其中70％给华宇公司；如因祝长春的过错造成华宁公司既收不回土地，又没收回现金，祝长春赔偿钱碧芳624万元。
关于华宁公司享有的对江宁区建设局债权问题，2003年1月23日，钱碧芳、华宁公司与祝长春及华宇公司签订的《华宁华宇决议》中，约定该债权由祝长春负责追回。同日，双方签订的《债权转让及委托收款协议书》及向江宁区建设局出具的《债权转让通知》中，有转让债权和部分转让该债权及委托收款等意思表示。
钱碧芳向江宁区法院提起民事诉讼后，江宁区法院应钱碧芳要求冻结华宁公司银行存款的数额为13 754 252元。
钱碧芳上诉请求第5项关于碧水湾 28亩土地使用权问题、第11项关于要求祝长春返还其擅自支取的约27
020427．4元并承担该笔款项税金问题，为二审新增加的诉讼请求。而且，关于祝长春支取约
27020427．4元钱一事，钱碧芳于《华宁华宇决议》签订之前就已经明确知道。
本院查明的其他事实与一审法院查明的事实相同。
本院认为，祝长春、钱碧芳作为华宁公司和华宇公司的全部股东，通过召开股东会议、形成决议的形式，就两公司股权及资产调整达成的《华宁华宇决议》和相关协议，符合法律规定，应认定有效。
双方当事人争议焦点，表现在解决本案纠纷应否进行审计、税款和工程款等有关款项如何负担、相关房产和车辆等实物如何处置、祝长春和祝明安应否就钱碧芳转让其拥有的华宇公司25％股权支付对价以及有关债权应否转让等方面：
(一)关于解决本案纠纷应否进行审计的问题。
钱碧芳一审时就以应缴纳税金无法自行准确计算等为由，提出对两公司资产进行审计。一审法院认为仅根据双方已有的约定，就可以断明双方之间税收等纠纷应如何解决，故未支持其审计要求，该处理并无不当。钱碧芳二审重提审计要求，但并无新的、更充足的理由。祝长春一方主张祝、钱二人同为两公司股东，一直参与经营，对公司基本情况都很了解，双方围绕股权分割问题签订的所有协议，都是建立在不审计、由双方协商基础之上的，且祝长春及华宇公司已经全部履行了自己应尽的义务，故不同意审计。祝长春一方主张理由成立，应予采信。
(二)关于税款和工程款等有关款项如何负担问题。
1．关于华宁公司应缴纳的税款问题。《华宁华宇决议》仅约定了两公司就2003年度企业所得税的分担比例，对企业所得税以外其他税种并无具体、明确约定。一审判决依据双方“除上述所列项目外，华宁公司、华宇公司的其他资产和负债由各公司自行享有和处理”的约定，不支持钱碧芳和华宁公司对尚未实际发生的税款及对企业所得税之外的营业税、印花税等税款主张权利的请求，并无不当。钱碧芳和华宁公司该项上诉请求理由不成立，予以驳回。
2．关于钱碧芳和华宁公司应否连带给付华宇公司520万元问题。根据《华宁华宇决议》约定，华宁公司应给付华宇公司600万元，后双方一致认可调整为520万元，华宁公司理应依约支付该款项。华宇公司作为权利人，一审起诉时主张的该笔款项数额即520万元，一审判决支持该诉请并无不当，钱碧芳及华宁公司此项上诉理由不成立，予以驳回。
3．关于工程款超过550万元部分的负担问题。双方就碧水湾工程款确实约定超过550万元部分由祝长春及华宇公司负担，但经一审法院查明钱碧芳已经支付的工程款仅300多万元，尚未达到由祝长春及华宇公司负担的条件。故其主张应由对方负担约150万元，与事实不符，一审法院未予支持是正确的。
4．关于华宁公司1 060082元工程质量赔偿款损失的承担、祝长春是否擅自动用华宁公司资金7 385
582．57元以及祝长春应否承担隐匿的华宁公司债务并退还隐匿的华宁公司权益245万元等问题。华宁公司出现质量问题的工程是双方共同经营期间施工建成的，祝长春支取华宁公司资金7
385
582．57元的行为亦发生在《华宁华宇决议》签订之前。《华宁华宇决议》中明确约定两公司截至2003年1月22日彼此间的债权债务相互抵消，互不追偿，均自行承担和处理约定项目外的其他资产和负债。另外，钱碧芳虽主张由祝长春承担隐匿华宁公司债务并退还隐匿华宁公司债权
245万元，但始终未能举证证明。因此，一审判决驳回钱碧芳上述反诉请求并无不当。
(三)关于两公司名下部分房产应否对调调整、华宁公司的公司资料和项目资料、四辆汽车及钱碧芳个人物品等一些实物应否返还问题。
祝长春提出，在江宁区法院的调查笔录中，双方虽然有过相关房产不再调整的意思表示，但因对方根本不履行其应尽义务，故要求仍按照《华宁华宇决议》履行。一审法院认为，相关房产不再调整只是江宁区法院调查过程中双方作出的表示，非正式达成的协议，对当事人没有强行约束力。加之考虑双方实际履约状况，一审法院支持祝长春该项请求判令双方按照《华宁华宇决议》内容履行，并无不可。钱碧芳对此判项上诉，二审又未举证证明，故对其该项请求不予支持。
一审法院已经判决双方自行取回查封于法院的资料，钱碧芳及华宁公司既然没有证据证明华宇公司尚有属于华宁公司的资料，就理应服从该判项。钱碧芳要求对方归还其存放于华宇公司的私人物品，一审已判令其自行取回，祝长春及华宇公司并未提出异议，对此项已被支持的诉请无需上诉，自行取回即可。
关于对华宁公司名下四辆汽车的处置行为，早在签订《华宁华宇决议》之前就已发生，钱碧芳作为一直参与公司经营的股东，理应知晓，根据双方约定，属于华宁公司自行承担和处理的问题。
因此，一审判决对上述问题的处理并无不当。
(四)关于祝长春、祝明安应否就钱碧芳转让其拥有的华宇公司25％股权支付600万元对价问题。
钱碧芳和祝长春是华宁公司、华宇公司的共同股东，《华宁华宇决议》及其他相关文件均表明，两公司在进行股权调整、资产分割时，已经将股权转让的对价考虑在内，任何一方都无需为此另行支付对价。双方约定祝长春将其拥有的华宁公司70％股权转让给钱碧芳之母汪贤琛，钱碧芳将其拥有的华宇公司25％股权转让给祝长春之父祝明安。现祝长春早已依约将其拥有的华宁公司70％股权无偿转让给了钱碧芳之母汪贤琛，钱碧芳却迟迟不履行应尽义务，还要求对方为此支付600万元对价，其请求缺乏事实和法律依据，不予支持。
(五)关于对江宁区建设局债权和对江宁区国土局债权应如何处理问题。
双方对该两项债权顺利实现后，彼此间如何分配问题，并无争议。即双方均认可对江宁区建设局的债权实现后，扣除碧水湾小区维修基金、紫薇花园物业维修基金、碧水湾小区前期拆迁费用及碧水湾小区修路等四项费用，余额归祝长春和华宇公司。对江宁区国土局的债权实现后，关于土地或者现金的分配比例，也都已经达成一致意见。但对债权尚未实现之前，在祝长春和华宇公司与钱碧芳和华宁公司之间，是否发生债权转让，即对现在应由谁以何方名义向债务人主张权利，双方认识不一。
根据一审法院和本院查明的事实，对江宁区建设局的债权，原系华宁公司名下，本案中双方当事人签署的多份协议及文件对该债权都有所提及。具体而言，《华宁华宇决议》约定该债权由祝长春负责追回，未体现有债权转让的意思，《债权转让及委托收款协议书》及向江宁区建设局出具的《债权转让通知》中，有关于债权转让、委托收款及部分转让等不同的意思表示。由此可见，双方当事人对该债权是否转让、是全部转让抑或部分转让，存在约定不明和意思表示不一致的问题。一审判决指出，发生纠纷后双方均同意按照《华宁华宇决议》履行，故应当根据《华宁华宇决议》约定的内容作出认定，并判令该债权归祝长春享有。不过，按照一审法院所阐述的理由，依据《华宁华宇决议》处理，该债权就仍应归于华宁公司名下，祝长春只是负责追回，而不应判令债权转让。华宁公司该项上诉理由成立，予以支持。一审处理结果有误，应予变更。
关于对江宁区国土局的债权即城北路
460亩地块问题，根据《华宁华宇决议》和《关于城北路460亩地块的处理协议》的约定，该土地在华宁公司名下，祝长春和华宇公司同意由华宁公司收回，收回后对华宇公司予以补偿。由此可知，该债权对外应以华宁公司名义向债务人主张，并无债权转让的明确表示。一审认定《华宁华宇决议》的效力，又判令将该债权转让给祝长春和华宇公司，与当事人约定内容不符。钱碧芳和华宁公司请求对该项改判的理由成立，应予支持。
(六)关于碧水湾28亩土地使用权及祝长春和华宇公司返还擅自支取 27020427．4元款项问题。
这两项诉讼请求属于钱碧芳及华宁公司二审时新增加的，祝长春和华宇公司对此不予认可，故双方应自行协商解决，也可以另循法律途径解决。
综上，依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(三)项之规定，判决如下：
一、维持江苏省高级人民法院(2004)苏民二初字第6号民事判决第一项、第二项、第五项、第六项、第七项、第八项和第九项；
二、变更江苏省高级人民法院(2004)苏民二初字第6号民事判决第三项为：关于江苏华宁房地产开发有限公司享有的对江苏省南京市江宁区建设局的债权，按照《江苏华宁华宇房地产开发有限公司股东大会决议》第二条第6款的约定履行；
三、变更江苏省高级人民法院(2004)苏民二初字第6号民事判决第四项为：关于江苏华宁房地产开发有限公司享有的对江苏省南京市江宁区国土资源管理局的债权，按照《江苏华宁华宇房地产开发有限公司股东大会决议》第二条第2款的约定履行；
四、驳回钱碧芳及江苏华宁房地产开发有限公司的其他上诉请求。
一审本诉案件受理费276
010元，由钱碧芳和江苏华宁房地产开发有限公司负担110404元，祝长春和江苏华宇房地产开发有限公司负担165
606元。一审反诉案件受理费107 893．49元，按一审判决执行。二审案件受理费383
903．49元，由钱碧芳和江苏华宁房地产开发有限公司负担 218
297．49元，祝长春和江苏华宇房地产开发有限公司负担165 606元。
本判决为终审判决。
审 判 长 程新文
代理审判员 刘银春
代理审判员 陈朝仑
二00六年四月十三日
书 记 员 王冬颖 |
|
|
|
Qian Bifang, Huaning Company v. Zhu
Changchun, Huayu Company, Zhu Ming’an and Wang Xianchen
(Dispute over Shareholder’s Rights)
Civil Judgment of the Supreme People’s Court
No. 25 (2005)
Appellant (Defendant in the first instance and plaintiff in
counterclaim): Qian Bifang, female, born in Minqing County,
Fujian Province on October 4, 1964, of the Han ethnicity,
dwelling at Suite 203, Building 51, No. 1, Haifu Lane,
Baixia District, Nanjing City, Jiangsu Province.
Authorized Agent: Zhao Jun, lawyer of Beijing Mingtai Law
Firm.
Authorized Agent: Chen Wenhong, lawyer of Beijing Mingtai
Law Firm.
Appellant (Defendant in the first instance and plaintiff in
counterclaim): Jiangsu Huaning Real Estate Development
Limited Company, domiciled at No. 10-1, Shihui Lane, Qinhuai
District, Nanjing City, Jiangsu Province.
Legal Representative: Qian Jiuzhong, board chairman of the
Company.
Authorized Agent: Zhao Jun, lawyer of Beijing Mingtai Law
Firm.
Authorized Agent: Chen Wenhong, lawyer of Beijing Mingtai
Law Firm.
Appellee (Plaintiff in the first instance and defendant in
counterclaim): Zhu Changchun, male, born in Ezhou City,
Hubei Province on July 2, 1951, of the Han ethnicity,
dwelling at Zhujiawan, Lianhua Village, Echeng District,
Ezhou City, Hubei Province.
Authorized Agent: Cao Li, lawyer of Jiangsu Nanjing Hailang
Law Firm.
Appellee (Plaintiff in the first instance and defendant in
counterclaim): Jiangsu Huayu Real Estate Development Limited
Company, domiciled at the south side of Jinsheng Road,
Dongshan Town, Jiangning District, Nanjing City, Jiangsu
Province.
Legal Representative: Zhu Changchun, board chairman of the
Company.
Authorized Agent: Cao Li, lawyer of Jiangsu Nanjing Hailang
Law Firm.
Appellee (Third person in the first instance): Zhu Ming’an
(Zhu Changchun’s father), male, born in Ezhou City, Hubei
Province on December 5, 1927, of the Han ethnicity, dwelling
at Zhujiawan, Lianhua Village, Echeng District, Ezhou City,
Hubei Province.
Authorized Agent: Cao Li, lawyer of Jiangsu Nanjing Hailang
Law Firm.
Third person in the first instance: Wang Xianchen (Qian
Bifang’s mother), female, born in Minqing County, Fujian
Province on July 27, 1943, of the Han ethnicity, temporarily
dwelling at Suite 203, Building 51, No. 1, Haifu Lane,
Baixia District, Nanjing City, Jiangsu Province.
With regard to the case under the dispute between Qian
Bifang, Jiangsu Huaning Real Estate Development Limited
Company (hereinafter referred to as Huaning Company), the
appellants, and Zhu Changchun, Jiangsu Huayu Real Estate
Development Limited Company (hereinafter referred to as
Huayu Company), Zhu Ming’an, the appellees, and Wang
Xianchen, the third person, over shareholder’s rights, the
Higher People’s Court of Jiangsu Province (hereinafter
referred to as Jiangsu Higher Court) rendered No. 6 (2004)
civil judgment on November 15, 2004. Qian Bifang and Huaning
Company were dissatisfied with the judgment, and appealed to
the present court. The present court formed a collegial
panel according to law, and then heard the present case by
holding a collegiate bench on April 26, 2005. Qian Bifang,
Zhao Jun (who was an authorized agent of Qian Bifang and
Huaning Company), and Cao Li (who was an authorized agent of
Zhu Changchun, Huayu Company and Zhu Ming’an) appeared in
the court and participated in the proceedings. The present
case has now been finalized.
It was verified by Jiangsu Higher Court after trial: Huaning
Company was established by Zhu Changchun, Li Qianlin and
Wang Xinmin as corporate promoters on March 9, 1999, with a
registered capital of CNY 10 million, including CNY 3.4
million contributed by Zhu Changchun, and CNY 3.3 million
contributed by Li Qianlin and Wang Xinmin, respectively. On
November 12, 1999, Wang Xinmin assigned CNY 1.5 million of
its stock rights to Qian Bifang, CNY 1.2 million to Gu
Dazhong and CNY 600,000 to Zhu Changchun. On March 27, 2001,
Li Qianlin assigned CNY 3.3 million of all its stock rights
in the company, with CNY 3 million to Zhu Changchun and CNY
300,000 to Qian Bifang, while Gu Dazhong assigned CNY 1.2
million of all its stock rights in the company to Qian
Bifang. After the assignment, the company’s registered
capital remained unchanged, among which Zhu Changchun
contributed CNY 7 million, accounting for 70% of the
registered capital, and Qian Bifang contributed CNY 3
million, accounting for 30%. On April 10, 2002, Huaning
Company’s registered capital was increased to CNY 20
million, including CNY 14 million contributed by Zhu
Changchun, and CNY 6 million by Qian Bifang, with their
respective proportions to the company’s registered capital
unchanged. Zhu Changchun was board chairman of the company,
and Qian Bifang was general manager of the company.
Huayu Company was established on January 3, 2001 upon the
request of Zhu Changchun and Qian Bifang, with its
registered capital being CNY 10 million, including CNY 7.5
million contributed by Zhu Changchun, accounting for 75% of
the registered capital; and CNY 2.5 million contributed by
Qian Bifang, accounting for 25% of the registered capital.
Zhu Changchun was board chairman and concurrently general
manager of the company.
Because Zhu Changchun and Qian Bifang fell into
contradictions in the process of joint operation of the
company, both parties reached a “Resolution of Shareholders’
Assembly of Jiangsu Huaning Real Estate Development Limited
Company” (hereinafter referred to as “Huaning Resolution”)
on November 12, 2002, setting forth: Zhu Changchun shall
convert its stock rights in Huaning Company into dozens of
thousands Yuan, and assign them to Wang Xianchen in a lump,
with the agreement on assignment of stock rights to be
concluded separately; both parties agree that, with respect
to the aforesaid assigned stock rights, the factors such as
the various taxes, fees, arrearages, repair expenses and
quality-based indemnities, etc. have been taken into
account; Zhu Changchun shall no longer hold any position in
Huaning Company after assigning the stock rights, and shall
hand over the company’s certificates, licenses, seals,
contracts, credit and debt vouchers, accounting vouchers,
etc. which he kept in custody to Qian Bifang on the day when
an audit report is made; after Zhu Changchun has assigned
the stock rights, the relevant credits and debts left over
by Huaning Company, the disputes between Huaning Company and
its owners, and the coordination with relevant departments
shall be handled by Qian Bifang and the new shareholders,
while Zhu Changchun shall show active assistance; both
parties agree that after the resolution is made, an audit
institution of Qinhuai District shall immediately be
entrusted to audit the financial and asset conditions of
Huaning Company; after the audit is accomplished, they shall
immediately go through the procedures for stock right
assignment and industrial and commercial registration of
modification of the company; both parties agree that Huaning
Company’s Bishuiwan project and Huayu Company’s Bishuiwan
Xiyuan project shall be exchanged for management upon the
consent of the two real property management companies and
the owners; both parties agree to deliver the household
appliance place to Qian Bifang for management and use, and
to temporarily deliver the place on Hu’nan Road to Qian
Bifang for the use of an office place, while the on-site
Bishuiwan sales office shall be owned by Huaning Company;
both parties agree that the wages and bonuses of all
employees of Huaning Company and Huayu Company for the year
2002 shall be paid by Huayu Company in a lump; before the
company’s audit report is made, all the payments of the
company shall be suspended immediately, and Zhu Changchun
shall not conclude any contract with any other party or sell
any house property, nor shall it transfer its bank funds or
house properties; both parties agree that the deadline for
audit shall be November 12, 2002, and both parties shall
order the company’s employees to show active assistance, and
in the case of any delay due to untrue or untimely
assistance of the employees, Zhu Changchun shall bear the
liabilities for indemnity to Qian Bifang; Zhu Changchun
agrees that Qian Bifang may separately register and open
another company in the near future; other matters not
prescribed herein shall be settled by both parties
separately through negotiations.
Because the “Huaning Resolution” was not actually performed,
Qian Bifang brought a lawsuit with the People’s Court of
Jiangning District, Nanjing City, Jiangsu Province
(hereinafter referred to as Jiangning District Court) on
December 12, 2002, pleading the court to partition the
properties of Huaning Company and Huayu Company. After
accepting the case by Decision No. 17 (2003), Jiangning
District Court froze Huaning Company’s CNY 13,750,000 of
bank deposits upon Qian Bifang’s request. After
reconciliation of Jiangning District Court, Zhu Changchun
and Qian Bifang concluded the “Resolution of the
Shareholders’ Assembly of Jiangsu Huaning Huayu Real Estate
Development Limited Company” (hereinafter referred to as
“Huaning Huayu Resolution”) on January 23, 2003. Article 1
of the “Huaning Huayu Resolution” sets forth: after
negotiations between both parties, Zhu Changchun shall
assign his stock rights in Huaning Company (CNY 14 million)
in a lump to Wang Xianchen, and Qian Bifang shall assign her
stock rights in Huayu Company (CNY 2.5 million) in a lump to
Zhu Ming’an, with the agreement on assignment of stock
rights to be concluded separately. Article 2 of the “Huaning
Huayu Resolution” sets forth that, after both parties
conclude the agreement on assignment of stock rights,
neither party shall hold any position in the other party’s
company, and both parties shall deliver the relevant company
certificates, licenses, seals, archives, documents,
contracts, credit and debt vouchers, etc. in their
respective custody to the other party on the very day when
the agreement is signed. The assets, credits and debts of
the two companies shall be adjusted as follows: 1. Huaning
Company shall pay CNY 6 million to Huayu Company; 2. If
Huaning Company takes back the 460 mu of land on Chengbei
Road, it shall pay CNY 14 million to Huayu Company, or if it
takes it back in cash, it shall pay 70% of the cash to Huayu
Company; 3. Zhu Changchun shall take charge of settling the
issue of Huaning Company’s right to use the 28 mu of land in
Bishuiwan, and all supplementary assignment funds and fines,
etc. due to failure to settle the issue shall be borne by
Zhu Changchun and Huayu Company; 4. When Huaning Company and
Huayu Company settle the enterprise income tax for 2003, Zhu
Changchun and Huayu Company shall bear 70% of the amount of
payable income taxes as listed in the actual report, while
Qian Bifang and Huaning Company shall bear the other 30%; 5.
The villas in Bishuiwan which have not been sold out by
Huaning Company, namely, Buildings No. 45, No. 18, No. 19,
No. 20, No. 48, No. 95, No. 9, No. 10, No. 12, No. 15, and
No. 17, shall be owned by Huaning Company, and the remaining
villas, i.e., Buildings No. 96, No. 21, No. 49, No. 69, No.
70, No. 72, No. 16-2, No. 32-1, and No. 66-2 shall be owned
by Huayu Company; the three shops, three villas, and six
apartments in Bishuiwan Xiyuan shall be owned by Huaning
Company, the remaining ones shall be owned by Huayu Company,
and the club shall be entirely owned by Huayu Company; 6.
Zhu Changchun shall take charge of exercising the recourse
of Huaning Company’s CNY 16.5 million (temporary amount) of
credits against the Construction Bureau of Jiangning
District, Nanjing Municipality, Jiangsu Province
(hereinafter referred to as Jiangning District Construction
Bureau), and after the maintenance and repair funds (about
CNY 3.5 million) for Bishuiwan Residential Area, the
maintenance and repair funds for the real properties in
Ziwei Garden (about CNY 1,960,000), CNY 1.2 million of early
funds for demolishment and resettlement in Bishuiwan
Residential Area, and about CNY 1 million of road building
expenses in Bishuiwan Residential Area have been paid within
30 days, the remaining amount shall belong to Zhu Changchun
and Huayu Company; 7. The credits and debts between Huaning
Company and Huayu Companyshall be offset against each other
by January 22, 2003, and no recourse shall be exercised; 8.
The assets and liabilities of Huaning Company and Huayu
Company other than the above listed items shall be enjoyed
and dealt with by the companies themselves. Article 3 of the
“Huaning Huayu Resolution” sets forth: Both parties shall,
after concluding the “Stock Right Assignment Agreement”,
immediately make industrial and commercial registration of
modification and go through the legal procedures for
adjustment of the company assets under the supervision of
Jiangning District Court.
On the day when the “Huaning Huayu Resolution” was
concluded, both parties concluded the “Supplementary
Resolution”, setting forth: Among the construction
undertaking costs for the Bishuiwan project and the Ziwei
Garden project, Huaning Company shall bear the part of funds
not above CNY 5.5 million, Zhu Changchun and Huayu Company
shall pay the excessive part, and the construction
undertaking costs shall be paid by Qian Bifang upon
confirmation of Zhu Changchun.
On January 23, 2003, Jiangning District Court called all
parties to hand over the properties, and Qian Bifang issued
a check of Huaning Company to Zhu Changchun, with the amount
at CNY 5.2 million, so as to perform the obligation of
paying CNY 6 million to Huayu Company. Both parties agreed
that the money should be paid from the funds frozen by
Jiangning District Court, and in order to help the payment,
Jiangning District Court would unfreeze the aforesaid frozen
account; Zhu Changchun and Qian Bifang executed relevant
legal documents on assigning stock rights to Huaning Company
and Huayu Company, and delivered them to Qian Bifang’s
lawyer for going through the relevant procedures; on behalf
of Huaning Company, Qian Bifang executed relevant legal
documents on transferring Jiangning District Construction
Bureau’s credits which Huaning Company enjoyed to Huayu
Company, and delivered them to Zhu Changchun; Zhu Changchun
and Qian Bifang concluded the agreement on the distribution
of the refundment for land use right made by the Bureau of
Land and Resources of Jiangning District, Nanjing
Municipality, Jiangsu Province (hereinafter referred to as
Jiangning District Land Bureau).
On January 24, 2003, Jiangning District Court unfroze the
CNY 13,650,000 of Huaning Company’s bank deposits which it
had frozen before, but Zhu Changchun was informed by the
bank that the check with the amount at CNY 5.2 million was a
dishonored check when it was sent to the bank where Huaning
Company opened its bank account, and the CNY 13,650,000 of
Huaning Company’s deposits in that account, which was
unfrozen by Jiangning District Court, had all been drawn by
Qian Bifang. Jiangning District Court served by mail the
notice made on January 24, 2003 on permitting the withdrawal
of lawsuit by Qian Bifang.
On December 1, 2004, Qian Bifang and Wang Xianchen modified
the industrial and commercial registration of Huaning
Company by changing Huaning Company’s shareholder from Zhu
Changchun into Wang Xianchen, and the company’s legal
representative into Qian Jiuzhong (Qian Bifang’s father).
Then, Qian Bifang and Huaning Company directly claimed
against Jiangning District Construction Bureau for the
credits which had been transferred to Huayu Company.
Huaning Company paid CNY 35,514.55 of enterprise income tax
on April 29, 2003 for the tax period between January and
December, 2002; paid CNY 186,304.15 of enterprise income tax
on July 15, 2003 for the tax period between April and June
2003; paid CNY 20,485. 55 of enterprise income tax on
October 16, 2003for the tax period between January and
September 2003; paid CNY 237,118.70 of general business tax,
CNY 9,484.75 of educational surtax, and CNY 16,598.31 of
city maintenance and construction tax on March 6, 2003 for
the tax period of February 2003; paid a total of CNY
5,164.75 of stamp duties, and a total of CNY 5,790.22 of
general business tax, educational surtax and city
maintenance and construction tax on January 17, 2004 for the
tax period of 2003.
After January 23, 2003, Huaning Company alleged that it had
paid CNY 3,228,078 of construction undertaking costs for
Bishuiwan project and Ziwei Garden project.
Zhu Changchun and Huayu Company brought a lawsuit with
Jiangsu Higher Court, alleging that Zhu Changchun and Qian
Bifang were both shareholders who jointly owned Huaning
Company and Huayu Company. Huaning Company and Huayu Company
were joint shareholders, and had many connections in respect
of payment of funds, practitioners, etc. As a shareholder of
both Huaning Company and Huayu Company, Qian Bifang held
that Zhu Changchun, the company’s major shareholder, injured
the company’s interests and the interests of other
shareholders in the company’s business operations, and said
that they would no longer cooperate with Zhu Changchun. So
they sued to Jiangning District Court on December 12, 2002,
pleading the court to partition the properties of Huaning
Company and Huayu Company. After accepting the case,
Jiangning District Court froze Huaning Company’s CNY
13,750,000 of bank deposits upon Qian Bifang’s request.
Upon the reconciliation of Jiangning District Court, Zhu
Changchun and Qian Bifang concluded the “Huaning Huayu
Resolution” on January 23, 2003, setting forth: 1. Zhu
Changchun agrees to assign his 70% of stock rights in
Huaning Company to Wang Xianchen gratuitously, and Qian
Bifang agrees to assign her 25% of stock rights in Huayu
Company to Zhu Ming’an gratuitously. 2. The assets between
Huayu Company and Huaning Company shall be adjusted as
follows: (1) Huaning Company shall pay CNY 6 million to
Huayu Company; (2) Huaning Company’s villas located at
Bishuiwan, Jiangning District, Nanjing City (Buildings No.
96, No. 21, No. 49, No. 69, No. 70, No. 16-2, No. 32-1, and
No. 66-2) shall be gratuitously assigned to Huayu Company;
(3) The CNY 16.5 million of credits enjoyed by Huaning
Company over Jiangning District Construction Bureau shall be
owned by Huayu Company in the form of credit transfer; (4)
70% of the credits enjoyed by Huaning Company over Jiangning
District Land Bureau, i.e., CNY 14 million, shall be owned
by Huayu Company. None of the third persons involved in the
resolution had any objection to the resolution, and all of
them were willing to cooperate in its performance. All
parties conducted the following on January 23, 2003 under
the organization of Jiangning District Court: (1) Qian
Bifang issued a check of Huaning Company at the amount of
CNY 5.2 million to Zhu Changchun for performing the
obligation of making payment to Huayu Company, and the money
was paid from the funds frozen by Jiangning District Court,
for the purpose of which Jiangning District Court would
unfreeze aforesaid frozen account; (2) Zhu Changchun and
Qian Bifang executed the relevant legal documents on
assigning the stock rights of Huaning Company and Huayu
Company, and delivered them to Qian Bifang’s lawyer for
completing the legal procedures; (3) On behalf of Huaning
Company, Qian Bifang executed the relevant legal documents
on transferring Huaning Company’s credits against Jiangning
District Construction Bureau to Huayu Company, and handed
them over to Zhu Changchun; (4) Zhu Changchun and Qian
Bifang concluded the agreement on the distribution of the
refundment for land use right made by Jiangning District
Land Bureau.
On January 24, 2003, Jiangning District Court unfroze
Huaning Company’s CNY 13,650,000 of deposits it had
previously frozen, but Zhu Changchun was informed when
encashing the check amounting to CNY 5.2 million in Huaning
Company’s bank account that the check was a dishonored
check.
From January 24, 2003 up to the present, Huaning Company had
been actually controlled and operated by Qian Bifang, while
Huayu Company was actually controlled and operated by Zhu
Changchun. Qian Bifang and Huaning Company did not pay the
aforesaid CNY 5.2 million by then.
On December 1, 2003, Qian Bifang and Wang Xianchen modified
Huaning Company’s industrial and commercial registration,
changed Huaning Company’s shareholder from Zhu Changchun
into Wang Xianchen, and changed the company’s legal
representative into Qian Jiuzhong (Qian Bifang’s father).
Because Qian Bifang did not cooperate in assigning her stock
rights in Huayu Company to Zhu Ming’an, the registered
shareholders of Huayu Company were still Zhu Changchun and
Qian Bifang. Nor did Qian Bifang and Huaning Company change
the owner of the relevant house properties into Huayu
Company pursuant to the contract. Qian Bifang and Huaning
Company went to Jiangning District Construction Bureau to
directly claim the credits which had been transferred to
Huayu Company, and thus Huayu Company was unable to realize
its credits, nor was Zhu Changchun and Huayu Company able to
enjoy Huaning Company’s credits against Jiangning District
Land Bureau. To sum up, Qian Bifang and Huaning Company
failed to perform any obligation set forth in the “Huaning
Huayu Resolution”. Therefore, Zhu Changchun and Huayu
Company pleaded the court to adjudicate: 1. Qian Bifang and
Huaning Company should pay CNY 5.2 million to Huayu Company
jointly and severally; 2. Huaning Company should change the
owner of the villas located at Bishuiwan Residential Area,
Jiangning District, Nanjing City (Buildings No. 96, No. 21,
No. 49, No. 69, No. 70, No. 72, No. 16-2, No. 32-1, and No.
66-2) into Huayu Company, or order Qian Bifang and Huaning
Company to pay a consideration of approximately CNY 15
million (the actual value shall be calculated on the basis
of the valuated market price) jointly and severally; 3.
Huaning Company should transfer CNY 16.5 million of its
credits against Jiangning District Construction Bureau to
Huayu Company; 4. Huaning Company should transfer its 70% of
credits against Jiangning District Land Bureau (i.e., CNY 14
million) to Huayu Company; 5. Qian Bifang should assist Zhu
Changchun and Huayu Company in changing the owner of her 25%
of stock rights over Huayu Company (CNY 2.5 million of
investments) into Zhu Ming’an; and 6. Qian Bifang and
Huaning Company should bear the litigation costs of the
present case.
Qian Bifang argued that, the legal representative of both
Huaning Company and Huayu Company was Zhu Changchun, and the
actual power to operate the two companies was also
controlled by Zhu Changchun, while Qian Bifang merely took
charge of the sales work. Since Zhu Changchun concealed the
business information, privately registered and established
another company in the same industry, and committed the
unjust acts of concealing the company’s assets, making
wrongful land investments, etc., Qian Bifang requested
liquidation of the company’s assets in order to maintain her
own lawful rights and interests. On November 12, 2002, both
parties concluded the “Huaning Resolution” which sets forth:
(1) Zhu Changchun shall assign his stock rights in Huaning
Company in a lump to Wang Xianchen, and withdraw from the
operation of Huaning Company; (2) Both parties shall entrust
an auditing institution to audit the financial conditions of
Huaning Company by November 12, 2002, and before the audit
report is made, all expenditures of the company shall be
suspended immediately. However, after that, during the trial
of Jiangning District Court, Jiangsu Zhongxing Accounting
Firm made primary audit of the two companies, and both
parties reached the “Huaning Huayu Resolution” and the
“Supplementary Resolution” on January 23, 2003. In addition,
both parties further reached the following agreement on
January 23, 2003 regarding the relevant matters under the
presiding of Jiangning District Court: (1) Huaning Company
shall pay CNY 5.2 million to Huayu Company; and (2) The
house properties of Huaning Company and Huayu Company shall
no longer be adjusted. On the same day, Qian Bifang and Zhu
Changchun concluded the “Agreement on Assignment of Credits
and Entrusted Collection of Money” in Jiangning District
Court, both parties handed over their respective two company
seals to the other, and Qian Bifang issued to Huayu Company
an undated check at an amount of CNY 5.2 million (Qian
Bifang demanded Zhu Changchun to perform the agreement and
to encash the check on that day after handover of the
documents). However: 1. Zhu Changchun failed to hand over
Huaning Company’s documents to Huaning Company on that day
pursuant to the agreement, and thus Qian Bifang was unable
to check the amount of construction undertaking costs owed
by Huaning Company. Huaning Company’s book construction
arrearages were more than CNY 10 million, and Qian Bifang
demanded Zhu Changchun for many times to pay off the part of
construction undertaking costs exceeding CNY 5.5 million
which Zhu should bear pursuant to the agreement, but it
failed. After the handover of the seals, Qian Bifang went to
the bank only to find that there was a difference of CNY 5
million between Huaning Company’s book amount and the actual
amount in its bank account. Because Zhu Changchun refused to
tell the whereabouts of the funds, it was a self-remedial
measure taken by Qian Bifang by preventing Zhu Changchun
from encashing the check of CNY 5.2 million. 2. As agreed
upon between both parties, Zhu Changchun shall bring a power
of attorney to Jiangning District Construction Bureau to
claim its credits and transfer the credits into Huaning
Company’s account for paying for the aforesaid four items of
expenses. However, Huaning Company had not received any
money at all so far, and Huaning Company had to revoke its
entrustment to Zhu Changchun and claim against Jiangning
District Construction Bureau by itself for the credits, and
planned to settle the matter through litigation. 3. Huaning
Company claimed against Jiangning District Land Bureau for
many times for the right to use the 460 mu of land on
Chengbei Road or for return of the deposit and prepayment of
the CNY 20 million of land assignment funds, but was
refused, and was then preparing to settle the matter through
arbitration procedures. 4. After taking over Huaning
Company, Qian Bifang had been unable to carry out business
activities normally, because: the quality dispute arising
out of Bishuiwan project during Zhu Changchun’s operation of
it and the delay in delivering the house properties caused
nearly twenty lawsuits brought by customers who claimed for
indemnities, and Huaning Company indemnified nearly CNY one
million; due to the lack of engineering documents, the
construction undertaking costs it owed were unable to be
calculated and paid, and a large number of construction
undertaking workers besieged Huaning Company’s office place
for many times, which caused Huaning Company to be almost in
a paralytic state. 5. After settlement of the enterprise
income tax for 2003, there was still CNY 25 million of
payable tax, and Zhu Changchun should bear 70% as it agreed,
i.e., CNY 17.5 million, but Zhu Changchun refused to bear
that amount by then.
Therefore, Qian Bifang held that, 1. Since Zhu Changchun
refused to deliver Huaning Company’s engineering documents,
it was impossible for Huaning Company to compute the
construction undertaking costs and the amount to be borne by
Zhu Changchun and Huayu Company, her preventing Zhu from
encashing the check was a self-remedial act, and was also a
lawful act of exercising the right to plea for simultaneous
performance. Therefore, when Zhu Changchun did not perform
that obligation simultaneously, his litigation claim for
payment of CNY 5.2 million should be rejected. 2. Because
both parties clarified in the mediation on January 23, 2003
that the house properties of Huaning Company and Huayu
Company would no longer be adjusted, the litigation claim of
Zhu Changchun and Huayu Company against Qian Bifang and
Huaning Company for changing the owner of the 8 villas or
for indemnification of CNY 15 million of consideration was
short of contractual or legal basis, and should be rejected
according to law. 3. What both parties in dispute agreed
upon was that only after Jiangning District Construction
Bureau’s credits had been realized and Huaning Company’s
four items of expenses had been paid should the balance be
owned by Huayu Company. However, the conditions for credit
assignment were not mature yet, hence the litigation claim
of Zhu Changchun and Huayu Company that the CNY 16.5 million
of credits should be owned by Huayu Company has violated the
stipulations between both parties, and should be rejected
according to law. 4. Huaning Company’s credits against
Jiangning District Land Bureau were not assignable as
required by the nature of the contract (that is, it did not
meet the conditions prescribed in law on assigning the right
to use land), and Huaning Company had not been granted the
right nor had it obtained corresponding compensation, hence
the litigation claim of Zhu Changchun and Huayu Company for
obtaining the CNY 14 million of credits against Jiangning
District Land Bureau was short of factual or legal basis,
and should be rejected according to law. 5. Since Zhu
Changchun refused to bear the defaulted taxes and Huaning
Company’s assets were mainly embodied as Huaning Company’s
receivables over Huayu Company, Qian Bifang and Huaning
Company were actually unable to bear the defaulted taxes by
themselves, and thus refused to assign their stock rights in
Huayu Company before the problem was resolved appropriately.
Qian Bifang and Huaning Company alleged in the counterclaim
that, both parties concluded the “Huaning Resolution” on
November 12, 2002 and the “Huaning Huayu Resolution” on
January 23, 2003, and concluded the “Supplementary
Resolution” on the same day. After the above said resolution
was concluded, Zhu Changchun and Huayu Company failed to
perform it, and thus injured the lawful rights and interests
of Qian Bifang and Huaning Company. The main facts and
grounds were as follows: (1) On the issue of Huaning
Company’s payable taxes. According to the “Huaning Huayu
Resolution”, when Huaning Company and Huayu Company settled
the enterprise income tax for 2003, 70% of the payable
income tax as listed in the audit report of the accounting
firm shall be borne by Zhu Changchun and Huayu Company. Zhu
Changchun incurred lots of taxation problems during the
period when it controlled Huaning Company, but failed to
disclose the payable taxes to Qian Bifang and Huaning
Company and refused to deliver the relevant engineering and
accounting documents, thus Huaning Company was unable to
make accurate accounting of the payable taxes but to prepay
CNY 242,304.49 of Huaning Company’s taxes for 2003 according
to the existing documents, and to pay CNY 12,000 of taxes,
which had failed to be paid, on behalf of Huayu Company. 70%
of the aforesaid CNY 242,304.49 of income tax for 2003 as
prepaid by Huaning Company should be borne by the other
party, and after the relevant documents were handed over,
70% of Huaning Company’s payable taxes determined after
accounting or the taxation authority’s check should also be
borne by the other party. (2) On the issue of the part of
construction undertaking costs above CNY 5.5 million. The
“Supplementary Resolution” sets forth: “For the unpaid
construction undertaking costs (all items) of Huaning
Company’s Ziwei Garden project and Bishuiwan project by
January 22, 2003, the part not above CNY 5.5 million shall
be borne by Huaning Company and Qian Bifang, while the part
above CNY 5.5 million shall be borne by Zhu Changchun and
Huayu Company. The construction undertaking costs shall be
paid by Qian Bifang after being confirmed by Zhu Changchun.”
After the resolution was made, the other party refused to
deliver the engineering documents and other relevant
contracts and documents, the amount of the outstanding
construction undertaking costs had all along been unable to
be determined. Qian Bifang and Huaning Company requested the
court to entrust an auditing institution to audit the owed
construction undertaking costs, so as to determine the
amount which Zhu Changchun and Huayu Company should bear.
(3) On the company documents and project documents. As
agreed upon between both parties, neither of them shall,
after executing the “Stock Right Assignment Agreement”, hold
any position in the other party’s company, and both shall
deliver the relevant company certificates, licenses, seals,
archives, documents, contracts, credit and debt vouchers,
etc. in their respective custody to the other party on that
day. However, Zhu Changchun failed to perform that
contractual obligation so far. (4) On the issue of vehicles.
Huaning Company’s all sedan cars, namely, a Builk (Su
A-T6921), an Iveco (Su A-49440), a Santana (Su A-51772) and
a Changhe (Su A-T5045), were still in the possession and use
of the other party who refused to return them after being so
demanded for many times. (5) On the issue of the losses
caused by Zhu Changchun to Huaning Company. During Zhu
Changchun’s operation of Huaning Company, the refundment due
to return of the garden land areas, the engineering repair
expenses and the indemnities, totaling CNY 1,060,082, which
was caused from the wrongful operational strategies, should
be borne by Zhu Changchun. (6) Zhu Changchun unlawfully used
CNY 7,385,582.57 of Huaning Company’s funds. Article 11 of
the “Huaning Resolution” sets forth: before the company’s
audit report is made, all its expenditures shall be
immediately suspended, and Zhu Changchun shall not execute
any contract with any other party or sell any of the house
properties, nor shall it transfer the bank funds or house
properties. However, from November 12, 2002 to January 23,
2003, Zhu Changchun unlawfully used Huaning Company’s CNY
7,385,582.57 of funds to pay of the outstanding construction
undertaking costs to Bishuiwan Xiyuan, but the “Huaning
Huayu Resolution” concluded between both parties on January
23, 2003 sets forth: The unsold house properties in
Bishuiwan Xiyuan Residential Area shall be owned by Huayu
Company, and Zhu Changchun shall no longer be a shareholder
of Huaning Company. It could be seen that Zhu Changchun
committed an obviously tortious act, and thus both Zhu
Changchun and Huayu Company should of course refund the
aforesaid money. (7) Zhu Ming’an should pay corresponding
consideration for the stock rights assigned by Huayu
Company. As agreed upon between both parties, Qian Bifang
shall assign her 25% of stock rights in Huayu Company to Zhu
Ming’an, and shall no longer participate in Huayu Company’s
affairs after conclusion of the agreement. Qian Bifang and
Huaning Company held that, for the 25% of stock rights she
had in Huayu Company which Zhu Ming’an requested for
transfer, he should pay a corresponding consideration. But
since Zhu Changchun, et al refused to pay corresponding
consideration, the value of Huayu Company’s assets by
January 23, 2003 should be audited, so as to determine the
amount of consideration that Zhu Changchun and Zhu Ming’an
should pay. (8) Settlement of the matter on Zhu Changchun’s
concealment of credits and debts during his control of
Huaning Company. Before January 23, 2003, Huaning Company
had been actually controlled and operated by Zhu Changchun,
and during the negotiations between both parties, Zhu
Changchun concealed a large amount of credits and debts.
Apart from those as listed above, the debts of Huaning
Company which Zhu Changchun concealed should be borne by Zhu
himself, the concealed credits and proceeds should be
returned to Qian Bifang and Huaning Company. To sum up, the
acts of Zhu Changchun and Huayu Company had injured the
interests of Qian Bifang and Huaning Company, and had
seriously affected Huaning Company’s normal operations.
Therefore, Qian Bifang and Huaning Company pleaded the
present court to adjudicate: 1. Zhu Changchun and Huayu
Company should bear 70% of the CNY 242,300.49 of enterprise
income tax for 2003 which Huaning Company had paid, i.e.,
CNY 169,613.14, and 70% of the enterprise income tax which
Huaning Company should pay but was undetermined due to
incomplete documents, approximately CNY 12,000; 2. Zhu
Changchun and Huayu Company should bear 70% of a total
amount of CNY 274,156.73 of general business tax and stamp
duty, etc. which Huaning Company had paid, i.e., CNY
191,909.71, and 70% of all other items of taxes (business
tax, additional tax, land value-added tax, stamp duty, etc.)
which had not been confirmed by the taxation authority and
which Huaning Company should pay, approximately CNY 14,000;
3. Zhu Changchun and Huayu Company should bear the part of
Huaning Company’s payable construction undertaking costs
above CNY 5.5 million, which had been confirmed through
auditing by January 23, 2003, approximately CNY 1.5 million;
4. Zhu Changchun and Huayu Company should return all Huaning
Company’s documents, including project documents; 5. Zhu
Changchun and Huayu Company should return all Huaning
Company’s vehicles, namely a Builk (Su A- T6921) valued at
CNY 357,368, an Iveco (Su A- 49440) valued at CNY 147,643, a
Santana (Su- 51722) valued at CNY 172,000, and a Changhe (Su
A-T5045) valued at CNY 48,500, or otherwise it should make
indemnities at the original purchase prices; 6. Zhu
Changchun and Huayu Company should bear all items of
economic losses that Zhu Changchun suffered during the
period when he operated Huaning Company which incurred from
indemnifying customers due to delay in delivery of the house
properties or due to project quality, totaling CNY
1,060,082; 7. Zhu Changchun and Huayu Company should return
Huaning Company’s CNY 7,385,582.57 of funds which they had
encroached upon during the negotiations from November 12,
2002 to January 23, 2003; 8. Zhu Changchun and Zhu Ming’an
should pay a consideration of approximately CNY 6 million to
Qian Bifang for assignment of her stock rights in Huayu
Company; 9. Zhu Changchun and Huayu Company should bear
other concealed debts of Huaning Company which occurred
before January 23, 2003 and should return the concealed
interests of Huaning Company which were formed before
January 23, 2003 at the ratio of 70% of about CNY 3.5
million, i.e., CNY 2,450,000. 10. Zhu Changchun should
return the office supplies and personal belongings left by
Qian Bifang in Huayu Company, at a value of about CNY
50,000; 11. It should be confirmed that the total amount of
the abovementioned litigation claims of Items 1 through 10
was CNY 19,558,698.42, and if the amount determined after
audit is larger, Qian Bifang and Huaning Company should
reserve the right to bring a lawsuit regarding the excessive
part; and 12. The other party should bear the litigation
costs for the present case.
Jiangsu Higher Court held that, the “Huaning Resolution”
concluded between Zhu Changchun and Qian Bifang on November
12, 2002 and the “Huaning Huayu Resolution” concluded under
the presiding of Jiangning District Court on January 23,
2003 were an expression of the true will of both parties,
which do not violate any relevant legal provisions of the
state and have been acknowledged by both Wang Xianchen and
Zhu Ming’an, hence they shall be ascertained as lawful and
effective according to law. After the aforesaid resolutions
were reached, both parties were entitled to enjoy the rights
and should perform their obligations pursuant to the
agreement. After the “Huaning Huayu Resolution” was reached,
Qian Bifang made use of the advantage that Jiangning
District Court had her go through the procedures of
industrial and commercial registration of modification for
the stock right assignment between the two companies, and
only changed the owner of Zhu Changchun’s stock rights in
Huaning Company into Wang Xianchen and Huaning Company’s
legal representative into Qian Jiuzhong, her father.
Meanwhile, she withheld the documents including the
agreement on the assignment of her stock rights in Huayu
Company, and failed to go through the procedures for
industrial and commercial registration of changing the owner
of her stock rights in Huayu Company into Zhu Ming’an.
Moreover, when Jiangning District Court unfroze the CNY
13,650,000 of Huaning Company’s bank deposits, Qian Bifang
drew CNY 5.2 million of funds payable to Huayu Company, and
directly claimed against Jiangning District Construction
Bureau for the credits which had already been transferred to
Huayu Company. All such acts violated the principle of
honesty and credibbility. Qian Bifang’s act of only enjoying
the interests imposed by the resolution without bearing the
stipulated obligation was the fundamental cause of the
dispute. For this, Qian Bifang should bear the principal
liabilities.
The focus in dispute in the present case was whether the
litigation claims of Zhu Changchun and Huayu Company or the
counterclaims of Qian Bifang and Huaning Company should be
supported.
(I) On the issue of whether the five litigation claims in
the lawsuit brought by Zhu Changchun and Huayu Company
should be supported.
1. On the litigation claim on whether Qian Bifang and
Huaning Company should jointly and severally pay CNY 5.2
million of funds to Huayu Company. The CNY 5.2 million was
agreed upon between Zhu Changchun and Qian Bifang for
adjusting the assets between Huaning Company and Huayu
Company and for partitioning the CNY 13,650,000 of Huaning
Company’s bank deposits frozen by Jiangning District Court.
In the “Huaning Huayu Resolution”, both parties agreed that
Huaning Company should transfer CNY 6 million to Huayu
Company, and later, under the mediation of Jiangning
District Court, both parties agreed to adjust the amount
into CNY 5.2 million. Qian Bifang also issued a bank check
as she had agreed. Thus the claim of Zhu Changchun and Huayu
Company for ordering Huaning Company to pay CNY 5.2 million
to Huayu Company should be supported. Although what the
“Huaning Huayu Resolution” merely sets forth is the payment
to be made by Huaning Company to Huayu Company, essentially,
it is the result of the transaction between Qian Bifang and
Zhu Changchun of the stock rights of Huaning Company and
Huayu Company. Therefore, Qian Bifang should be jointly and
severally obligated for Huaning Company’s payment of CNY 5.2
million to Huayu Company.
2. On the litigation claim that Huaning Company should
change the owner of the villas located at Bishuiwan
Residential Area, Jiangning District, Nanjing City, namely,
Buildings No. 96, No. 21, No. 49, No. 69, No. 70, No. 72,
No. 16-2, No. 32-1 and No. 66-2, into Huayu Company, or
otherwise Qian Bifang and Huaning Company should jointly and
severally pay about CNY 15 million of as consideration (the
actual value should be calculated on the basis of the market
price). It is true that the litigation claim was a content
clearly set forth in the “Huaning Huayu Resolution”.
Although when Jiangning District Court presided over the
mediation between both parties, it demanded that both
parties should no longer adjust the house properties of
Huaning Company and Huayu Company, meanwhile Zhu Changchun
and Qian Bifang also agreed on this point, and Zhu Changchun
held that his expression of the will of no adjustment of the
house properties of the two companies was based on the
concession that both parties would fully perform the
“Huaning Huayu Resolution” and would settle the dispute as
soon as possible. However, Qian Bifang’s dishonest and
discredited acts had seriously injured the lawful rights and
interests of the two companies in which Zhu Changchun was a
major shareholder, hence Zhu Changchun firmly requested that
the clauses in the “Huaning Huayu Resolution” should be
performed. Jiangsu Higher Court held that Jiangning District
Court’s requirement to either Zhu Changchun or Qian Bifang
on no further adjustment of the house properties of the two
companies had no binding force in legal sense upon Zhu
Changchun or Qian Bifang. Adhering to the principle of being
fair and reasonable, Zhu Changchun requested partition of
the two companies’ assets pursuant to the “Huaning Huayu
Resolution”, and such a request should be supported.
3. On the two litigation claims regarding Huaning Company’s
transfer of credits to Huayu Company, i.e., 70% of CNY 16.5
million of credits against Jiangning District Construction
Bureau and 70% of the credits against Jiangning District
Land Bureau (CNY 14 million) should be transferred to Huayu
Company. The “Huaning Huayu Resolution” clearly sets forth
that “Zhu Changchun shall exercise the recourse of the CNY
16.5 million of Huaning Company’s credits against Jiangning
District Construction Bureau (temporarily determined), and
shall, within 30 days, fully pay the maintenance and repair
funds for Bishuiwan Residential Area (about CNY 3.5
million), the maintenance and repair funds for Ziwei
Garden’s real properties (about CNY 1,960,000), CNY 1.2
million of the early demolishment and resettlement expenses
for Bishuiwan Residential Area, and about CNY 1 million of
road building expenses for Bishuiwan Residential Area. After
that, the balance shall be owned by Zhu Changchun and Huayu
Company”; “If Huaning Company takes back the 460 mu of land
on Chengbei Road, it shall pay CNY 14 million to Huayu
Company, or if it takes it back in cash, it shall pay 70% of
the cash to Huayu Company”. All parties expressed their will
in the first instance to perform such clauses, hence the two
litigation claims should be supported.
4. On the litigation claim that Qian Bifang should assist
Zhu Changchun and Huayu Company in changing the owner of the
25% of stock rights in Huayu Company (CNY 2.5 million of
investments) into Zhu Ming’an. Qian Bifang has gratuitously
assigned Zhu Changchun’s stock rights in Huaning Company to
her mother, and had gone through the procedures for
industrial and commercial registration of the change, hence
her stock rights in Huayu Company should be assigned
according to the “Huaning Huayu Resolution” to Zhu Ming’an.
(II) On the issue of whether the 11 counterclaims brought
forward by Qian Bifang and Huaning Company should be
supported.
1. On the litigation claim that Zhu Changchun and Huayu
Company should bear 70% of the CNY 242,304. 49 of enterprise
income tax for 2003 as prepaid by Huaning Company, i.e., CNY
169,613.14; and 70% of the enterprise income tax which
Huaning Company should pay due to incomplete documents,
about CNY 12,000. Qian Bifang and Huaning Company proposed
auditing the accounts of Huaning Company and Huayu Company,
so as to confirm the amount of the enterprise income tax and
other various items of taxes and fees, which the two
companies should pay. However, as agreed upon between both
parties, “Zhu Changchun and Huayu Company shall bear 70% of
Huaning Company’s and Huayu Company’s enterprise income tax
for 2003; while Qian Bifang and Huaning Company shall bear
30%”, once Huaning Company and Huayu Company showed their
respective vouchers on the payment of taxes for 2003, the
dispute could be settled, hence the amount did not need to
be determined through auditing. The evidence provided by
Huaning Company proves that the amount of enterprise income
tax for 2003 it had paid was CNY 206,789.70, and as agreed
upon between both parties, Zhu Changchun and Huayu Company
should bear CNY 144,752.79. In conclusion, the request of
Qian Bifang and Huaning Company that Zhu Changchun and Huayu
Company should respectively bear CNY 169,613.14 and CNY
12,000 of taxes was short of factual basis, and should not
be supported. With respect to the part of enterprise income
tax for 2003, which Huaning Company and Huayu Company have
not paid yet, either party may, after the actual payment,
upon strength of the vouchers on payment of tax, demand the
other party to bear the amount at the agreed proportion.
2. On the litigation claim that Zhu Changchun and Huayu
Company should bear 70% of a total amount of CNY 274,156.73
of general business tax, stamp duty, etc. which Huaning
Company had paid, i.e., CNY 191,909.71; and 70% of all other
taxes (business tax, additional tax, land value-added tax,
stamp duty, etc.) which had not been confirmed by the
taxation authority and which Huaning Company should pay,
approximately CNY 14,000. The “Huaning Resolution” has taken
taxes and fees into account, but does not set forth how both
parties shall bear the taxes and fees. The “Huaning Huayu
Resolution” only clarifies the proportions for both parties
to bear the enterprise income tax, and Article 8 of the
Resolution clearly sets forth that “the assets and
liabilities of Huaning Company and Huayu Company other than
those listed above shall be enjoyed and dealt with by the
companies themselves.” Therefore, this counterclaim of Qian
Bifang and Huaning Company was short of basis, and should
not be supported.
3. On the litigation claim that Zhu Changchun and Huayu
Company should bear the part of Huaning Company’s payable
construction undertaking costs above CNY 5.5 million, which
were confirmed through auditing by January 23, 2003,
approximately CNY 1.5 million. Qian Bifang and Huaning
Company requested audit of Huaning Company’s accounts so as
to confirm the amount of payable construction undertaking
costs. As agreed upon between both parties, “for the unpaid
construction undertaking costs of Huaning Company’s Ziwei
Garden project and Bishuiwan project, the part not above CNY
5.5 million shall be borne by Huaning Company and Qian
Bifang, while the part above CNY 5.5 million shall be borne
by Zhu Changchun and Huayu Company, and the construction
undertaking costs shall be paid by Qian Bifang upon the
confirmation of Zhu Changchun”, once Qian Bifang and Huaning
Company showed the vouchers on the payment of construction
undertaking costs upon the confirmation of Zhu Changchun,
the part above CNY 5.5 million could be borne by Zhu
Changchun and Huayu Company without being confirmed through
auditing. However, the various items of construction
undertaking costs that occurred after January 23, 2003 as
provided by Huaning Company totaled CNY 3,228,078, and were
not up to CNY 5.5 million. Therefore, Qian Bifang and
Huaning Company had no right to request Zhu Changchun and
Huayu Company to bear that item of construction undertaking
costs.
4. On the litigation claim that Zhu Changchun and Huayu
Company should return all the company documents including
the project documents to Huaning Company. The two companies’
account books and other documents were sealed up in Jiangsu
Higher Court, and could all be returned to both parties
after a judgment was made.
5. On the litigation claim that Zhu Changchun and Huayu
Company should return Huaning Company’s four vehicles,
namely, a Builk (Su A-T6921) valued at CNY 357,368, an Iveco
(Su A-49440) valued at CNY 147,643, a Santana (Su A-51722)
valued at CNY 172,000, and a Changhe (Su A-T5045) valued at
CNY 48,500, or otherwise it should make indemnities at the
original purchase prices. Since all the four vehicles were
purchased before January 17, 2001, the Builk and Changhe had
been given by Huaning Company to the employees as a reward,
and moreover, the “Huaning Huayu Resolution” clearly sets
forth “the assets and liabilities of Huaning Company and
Huayu Company other than those listed above shall be enjoyed
and dealt with by the companies themselves”, the claim of
Qian Bifang and Huaning Company on asserting the ownership
of the four vehicles shall not be supported.
6. On the claim that Zhu Changchun should bear a total
amount of CNY 1,060,082 of economic losses Zhu Changchun had
suffered during the period when he operated Huaning Company
which incurred from indemnifying customers due to delay in
delivery of the house properties or due to project quality.
Before January 23, 2003, Zhu Changchun was the board
chairman of Huaning Company, and Qian Bifang was the general
manager of Huaning Company. On Huaning Company’s expenditure
vouchers submitted by Qian Bifang, there were signatures of
both Zhu Changchun and Qian Bifang, which prove that the
expenditures were caused from joint operation of both
parties. After January 23, 2003, Huaning Company was fully
managed by Qian Bifang, and both parties clearly agreed that
“the assets and liabilities of Huaning Company and Huayu
Company other than those above shall be enjoyed and dealt
with by the companies themselves.” Hence Qian Bifang’s
request that Zhu Changchun should bear CNY 1,060,082 of the
so-called economic losses was short of factual or legal
basis, and should not be supported.
7. On the litigation claim that Zhu Changchun and Huayu
Company should refund CNY 7,385,582.57 of Huaning Company’s
funds which they had encroached upon during the negotiations
from November 12, 2002 to January 23, 2003. Qian Bifang held
that, after both parties concluded the “Huaning Huayu
Resolution”, she found, after consulting Huaning Company’s
accounts, that Zhu Changchun took advantage of controlling
Huaning Company’s operation and accounting affairs to, from
November 12, 2002 to January 23, 2003, have used Huaning
Company’s CNY 5,645,450.16 of funds to pay off Huayu
Company’s construction undertaking costs, and Huaning
Company should still have CNY 1,740,132.41 of cash. She
concluded the “Huaning Huayu Resolution” without knowing it,
and the CNY 5,645,450.16 of funds and the CNY 1,740,132.41
of cash were not covered by the “Huaning Huayu Resolution”,
hence Zhu Changchun and Huayu Company should refund CNY
7,385,582.57. Zhu Changchun held that, as both parties
jointly owned Huaning Company and Huayu Company, the two
companies were joint shareholders, and had many connections
in respect of payment of funds, practitioners, etc. Huayu
Company’s accounting vouchers and the counterfoil of its
bank check prove that Huayu Company totally paid CNY
30,718,000 on behalf of Huaning Company from June 27, 2002
to December 31, 2002. Qian Bifang, as a minority shareholder
of the two companies, should know the proportion of her own
share of the assets when partitioning the two companies’
assets with the two major shareholders, therefore both
parties clearly stipulated in the “Huaning Huayu Resolution”
as follows: “The credits and debts between Huaning Company
and Huayu Company by January 22, 2003 shall be offset
against each other, and no recourse shall be exercised.”
Jiangsu Higher Court held that, before January 23, 2003,
both Huaning Company and Huayu Company were jointly operated
and managed by Zhu Changchun and Qian Bifang, and thus Qian
Bifang should of course know that it was possible for both
companies to make payment for the other party in respect of
accounting affairs. Moreover, the “Huaning Huayu Resolution”
clearly sets forth, “The credits and debts between Huaning
Company and Huayu Company by January 22, 2003 shall be
offset against each other, and no recourse shall be
exercised.” Therefore, Qian Bifang’s claims for
ascertainment that the CNY 7,385,582.57 was not covered by
the “Huaning Huayu Resolution” and that Zhu Changchun and
Huayu Company should refund CNY 7,385,582.57, should not be
supported.
8. On the litigation claim that Zhu Changchun and Huayu
Company should bear 70% of about CNY 3.5 million of Huaning
Company’s other debts which had incurred by January 23, 2003
and should return Huaning Company’s concealed interests
which had formed by January 23, 2003, i.e., CNY 2,450,000.
Since Qian Bifang and Huaning Company failed to provide
evidence to prove the fact that Zhu Changchun and Huayu
Company concealed Huaning Company’s debts and interests
which had incurred before January 23, 2003, their litigation
claim was short of factual basis, and should not be
supported.
9. On the litigation claim that Zhu Changchun and Zhu
Ming’an should pay Qian Bifang about CNY 6 million of
consideration due to assignment of their stock rights in
Huayu Company. The “Huaning Huayu Resolution” sets forth,
“Zhu Changchun shall assign his stock rights in Huaning
Company (CNY 14 million) in a lump to Wang Xianchen, and
Qian Bifang shall assign her stock rights in Huayu Company (CNY
2.5 million) in a lump to Zhu Ming’an, provided that the
agreement on assignment of stock rights shall be concluded
separately.” When Zhu Changchun assigned his stock rights in
Huaning Company to Qian Bifang’s mother, and Qian Bifang
assigned her stock rights in Huayu Company to Zhu
Changchun’s father, the adjustment by both parties of the
two companies’ assets was to balance the consideration for
the assigned stock rights. After Qian Bifang executed the
“Huaning Huayu Resolution” and other relevant agreements in
Jiangning District Court, she changed the owner of Zhu
Changchun’s stock rights in Huaning Company into her mother
without paying any consideration, and fulfilled the
procedures for industrial and commercial registration of the
modification, hence her claim that Zhu Changchun and Zhu
Ming’an should pay her CNY 6 million of consideration for
25% of the assigned stock rights in Huayu Company violated
the agreement between both parties, and should not be
supported.
10. On the litigation claim that Zhu Changchun should refund
Qian Bifang’s office supplies and personal belongings left
over in Huayu Company, with the value at about CNY 50,000.
Although the litigation claim did not fall within the trial
scope of the case in dispute, and should be rejected. As Zhu
Changchun insisted in the trial that Qian Bifang’s personal
belongings could be taken back at any time, hence Qian
Bifang should take back the personal belongings under this
litigation claim by herself.
To sum up, the litigation claims of Zhu Changchun and Huayu
Company are lawful and well-grounded, and should be
supported; as for the counterclaims of Qian Bifang and
Huaning Company, the lawful and tenable part should be
supported according to law, while the part with no factual
or legal basis should be rejected according to law. In
accordance with Article 128 of the “Civil Litigation Law of
the People’s Republic of China”, Article 6, Article 8,
Paragraph 1 of Article 44, Article 60 and Article 88 of the
“Contract Law of the People’s Republic of China”, Jiangsu
Higher Court adjudicated as follows: (1) Huaning Company
shall, within 10 days as of the effectiveness of the
judgment, pay Huayu Company CNY 5.2 million, and Qian Bifang
shall bear joint and several liabilities for Huaning
Company’s payment obligation. (2) Qian Bifang and Huaning
Company shall, within 10 days as of the effectiveness of the
judgment, change the owner of Buildings No. 96, No. 21, No.
49, No. 69, No. 70, No. 72, No. 16-2, No. 32-1, and No. 66-2
in Bishuiwan Residential Area into Huayu Company; and Zhu
Changchun and Huayu Company shall, within 10 days as of the
effectiveness of the judgment, change the owner of the three
shops, three villas and six apartments in Bishuiwan Xiyuan
into Huaning Company. (3) Qian Bifang and Huaning Company
shall, within 10 days as of the effectiveness of the
judgment, assign CNY 16.5 million of their credits against
Jiangning District Construction Bureau to Zhu Changchun and
Huayu Company. Zhu Changchun and Huayu Company shall, within
30 days as of receipt of that amount, pay the maintenance
and repair funds for Bishuiwan Residential Area (CNY 3.5
million), the maintenance and repair funds for the real
properties in Ziwei Garden (CNY 1,960,000), CNY 1.2 million
of demolishment and resettlement expenses for Bishuiwan
Residential Area, and CNY 1 million of road building
expenses for Bishuiwan Residential Area. (4) Qian Bifang and
Huaning Company shall, within 10 days as of the
effectiveness of the judgment, assign CNY 14 million of its
credits against Jiangning District Land Bureau to Zhu
Changchun and Huayu Company. (5) Qian Bifang shall, within
10 days as of the effectiveness of the judgment, change the
owner of 25% of its stock rights in Huayu Company (CNY 2.5
million) into Zhu Ming’an, and fulfill the procedures for
industrial and commercial registration of the modification.
(6) Zhu Changchun and Huayu Company shall, within 10 days as
of the effectiveness of the judgment, pay CNY 144,752.79 to
Huaning Company to make up the enterprise income tax already
paid for 2003. (7) Huaning Company and Huayu Company shall,
within 10 days as of the effectiveness of the judgment, take
back their respective account books and other documents
sealed up in Jiangsu Higher Court. (8) Qian Bifang shall
take back her personal belongings in Huayu Company by
herself. And (9) Other counterclaims of Qian Bifang and
Huaning Company shall be rejected. The CNY 276,010 of case
acceptance fee shall be borne by Qian Bifang and Huaning
Company; as for the CNY 107,893.49 of counterclaim case
acceptance fee, Zhu Changchun and Huayu Company shall bear
CNY 26,974, while Qian Bifang and Huaning Company shall bear
CNY 80,919.49.
Qian Bifang and Huaning Company were dissatisfied with the
judgment of the first instance, and appealed to the present
court. They alleged that, Jiangsu Higher Court refused to
adopt Qian Bifang’s request for auditing the two companies,
which resulted in partitioning the company’s stock rights
and assets before they were audited, and caused the judgment
of the first instance to be wrongful. Hence they pleaded the
present court to audit the two companies, to overrule the
judgment of the first instance and to amend the judgment of
the first instance according to law. The main grounds were
as follows:
(I) All items of adjudication in the judgment of the first
instance were erroneous. 1. It was inappropriate to
adjudicate that Qian Bifang and Huaning Company should
jointly and severally pay CNY 5.2 million to Huayu Company.
The reason why Qian Bifang and Huaning Company failed to pay
that sum of money to the other party was that, according to
Zhu Changchun’s and Huayu Company’s obligation of delivering
Huaning Company’s certificates, licenses and seals, etc. as
agreed upon between both parties, Qian Bifang and Huaning
Company enjoyed the right to plea of simultaneous
performance for paying the CNY 5.2 million in case the said
obligation was not performed. In addition, on the next day
of conclusion of the “Huaning Huayu Resolution”, Qian Bifang
found that the more than CNY 5.6 million of funds on Huaning
Company’s account was unlawfully used by Zhu Changchun to
pay off the construction undertaking costs owed by Huayu
Company, hence even if Huaning Company paid CNY 5.2 million
to the other party, that sum of money should still be
offset. 2. It was inappropriate for Jiangsu Higher Court to
adjudicate over the taxes that Huaning Company should pay.
Zhu Changchun and Huayu Company failed to perform their
obligations after concluding the contract, and Huaning
Company left over serious taxation problems during its
control by Zhu Changchun. Zhu Changchun and Huayu Company
did not truthfully disclose Huaning Company’s payable taxes
during the negotiations between both parties, and refused to
deliver relevant engineering or accounting documents, thus
Huaning Company had no way to make accurate accounting of
the payable taxes but to prepay CNY 242,304.49 of taxes for
2003 on the basis of the existing documents, and to pay CNY
12,000 of taxes found to have been omitted upon inspection
on behalf of Huayu Company. The stipulation between both
parties in the “Huaning Resolution” on the tax issue does
not only refer to “enterprise income tax for 2003”, but also
covers the taxes of three projects of Huaning Company and
Huayu Company. However, the judgment of the first instance
just partially supported the counterclaim of Qian Bifang and
Huaning Company on taxation, which was obviously unfair, and
did not conform to facts and legal provisions, either. Qian
Bifang and Huaning Company pleaded the present court to
order the other party according to law to fully perform its
tax payment obligations as agreed upon between both parties.
The other party should bear 70% of CNY 242,304.49 of income
tax prepaid by Huaning Company for 2003, and meanwhile Zhu
Changchun and Huayu Company were demanded to bear 70% of the
undetermined payable taxes of Huaning Company after the
accounting was made or after the omitted amount was made up
from the taxation authority’s inspection. 3. As for Item (3)
of the judgment of the first instance, that is, Qian Bifang
and Huaning Company should change the owner of Buildings No.
96, No. 21, No. 49, No. 69, No. 70, No. 72, No. 16-2, No.
32- 1, and No. 66-2 in Bishuiwan Residential Area into Huayu
Company, while Zhu Changchun and Huayu Company should change
the owner of the three shops, three villas and six
apartments in Bishuiwan Xiyuan into Huaning Company, it was
not true to the fact. On January 23, 2003, at the time of
mediation held by Jiangning District Court, both parties
expressed their true will of no longer adjusting the
aforesaid house properties, which was recorded in the
archives of that mediation. Qian Bifang had submitted
relevant evidence in the first instance in this regard.
Therefore, Jiangsu Higher Court’s this adjudication was
short of factual or legal basis, and should be amended
according to law. 4. Jiangsu Higher Court was short of
factual or legal basis to adjudicate that the CNY 16.5
million of Huaning Company’s credits against Jiangning
District Construction Bureau should be assigned to Zhu
Changchun and Huayu Company. It was not until Zhu Changchun
failed to perform the obligation of recovering the credits
according to the “Huaning Huayu Resolution” within the time
limit agreed upon between both parties that Huaning Company
notified Zhu Changchun in writing that the credits should be
recovered by Huaning Company. However, Jiangning District
Construction Bureau did not confirm the actual amount of the
credits by then, and refused to make the payment to Huaning
Company. Since the credits involved a third person’s
interests and were in an uncertain state, it was not
suitable to deal with them in the present case. In
conclusion, the judgment of the first instance was short of
factual or legal basis, and should be rejected or amended
according to law. 5. It was problematic for Jiangsu Higher
Court to adjudicate that Huaning Company’s CNY 14 million of
credits against Jiangning District Land Bureau should be
transferred to Huayu Company. The credits involved the issue
of the right to use the 460 mu of land on Chengbei Road,
which has not been resolved yet. According to the “Huaning
Huayu Resolution”, only if Huaning Company has realized the
credits may the 70% be paid to Huayu Company. Huaning
Company has been actively asserting the credits thus far but
failed to realize them, hence there is no basis for the
court of the first instance to have ruled on this item in
the judgment. Moreover, both parties later had special
stipulations between them regarding this issue, so if the
aforesaid credits were adjudicated to be transferred Huayu
Company, Huayu Company should simultaneously be ordered to
pay the CNY 6,240,000 of principal to Qian Bifang as they
had agreed. 6. On the issue of the adjudication in Item (5)
of the judgment of the first instance that Qian Bifang shall
assign her 25% of her stock rights in Huayu Company (CNY 2.5
million) to Zhu Ming’an. The stipulation in the “Huaning
Huayu Resolution”, i.e., “Qian Bifang shall assign her stock
rights in Huayu Company to Zhu Ming’an”, is an expression of
will on non-gratuitous assignment of stock rights.
Therefore, Qian Bifang was short of factual or legal basis
to raise the claim on the premise that Zhu Ming’an failed to
pay the consideration. If it is to be taken as assigned
gratuitously, it should be a donation. However, in the
present case, no procedures for registration of transfer
were gone through for the donated subject matter, i.e., 25%
of stock rights, hence the donation had not become
effective. Therefore, this litigation claim of hers should
be rejected. Actually, Qian Bifang would no longer
participate in Huayu Company’s any affair after assigning
Huayu Company’s stock rights to Zhu Ming’an, and she should
of course pay about CNY 6 million of corresponding
consideration. It was inappropriate for the judgment of the
first instance to fail to support Qian Bifang’s counterclaim
that Zhu Changchun and Zhu Ming’an should pay corresponding
consideration after being assigned Huayu Company’s stock
rights, and the said judgment should be amended.
(II) In the judgment of the first instance most of the
counterclaims of Qian Bifang and Huaning Company were not
support, so it should be amended. Specifically: 1. On the
issue of the part of construction undertaking costs above
CNY 5.5 million. The “Supplementary Resolution” sets forth:
“Among the construction undertaking costs incurred before
January 22, 2003 for the Bishuiwan project and the Ziwei
Garden project, Huaning Company shall bear the part of funds
not above CNY 5.5 million, Zhu Changchun and Huayu Company
shall pay the excessive part, and the construction
undertaking costs shall be paid by Qian Bifang upon
confirmation of Zhu Changchun.” Because Zhu Changchun
refused to deliver the engineering documents and other
relevant contracts and documents, the specific amount of the
outstanding construction undertaking costs was unable to be
determined so far, and Qian Bifang and Huaning Company
pleaded the present court to determine through audit the
amount to be borne by Zhu Changchun and Huayu Company. 2. On
the issue of Bishuiwan’s right to use the 28 mu of land.
After execution of the “Huaning Huayu Resolution”, both
parties further agreed upon this point. According to the
stipulation that “Party A shall take charge of settling the
issue of Huaning Company’s right to use the 28 mu of land in
Bishuiwan, and all supplementary assignment funds and fines,
etc. due to failure in settling the issue shall be borne by
Party A and Huayu Company”, Qian Bifang and Huaning Company
pleaded the present court to support Huaning Company’s that
claim according to law. 3. On the issue of returning Huaning
Company’s vehicles. All Huaning Company’s sedan cars,
specifically, a Builk (Su A- T6921), an Iveco (Su A-49440),
a Santana (Su A-51722) and a Changhe (Su A-T5045), were
still in the possession and use of the other party, who
refused to return them after being so demanded for many
times. The ascertainment in the judgment of the first
instance that the company had awarded the vehicles to
employees was wrong, because it was illegal for only one
person to unlawfully decide the use of the vehicles (which
were the company’s fixed assets) as an award. The “Huaning
Resolution” clearly sets forth that “both parties shall
implement their promises to their respective employees,
instead of making payments with the company properties”,
therefore, the other party had no right to dispose of such
assets, but should return them according to law. 4. The CNY
1,060,082 of losses caused to Huaning Company due to Zhu
Changchun’s poor operation should be indemnified according
to law. During Zhu Changchun’s operation of Huaning Company,
the repair expenses and indemnities incurred from the
refundment due to return of the garden areas and from the
project quality because of wrongful operational strategies,
totaling CNY 1,060,082, should of course be borne by Zhu
Changchun. 5. On the economic losses caused by Zhu
Changchun’s unlawful use of Huaning Company’s funds and its
consequent obligated refundment and indemnities under law.
Zhu Changchun unlawfully used Huaning Company’s CNY
7,385,582.57 of funds, and the “Huaning Resolution” dated
November 12, 2002 sets forth: Before the company’s audit
report is made, all the company’s expenditures shall be
suspended immediately, and Zhu Changchun shall not conclude
any contract with any other party or sell any house
property, nor shall it transfer its bank funds or house
properties. After the resolution was concluded, and from
November 12, 2002 to January 23, 2003, Zhu Changchun
unlawfully spent Huaning Company’s CNY 7,385,582.57 of funds
on paying the construction undertaking costs owed by
Bishuiwan Xiyuan, but the “Huaning Huayu Resolution”
executed between both parties on January 23, 2003 sets
forth: “The unsold part of house properties in Bishuiwan
Xiyuan Residential Area shall be owned by Huayu Company, and
Zhu Changchun shall no longer be a shareholder of Huaning
Company.” Therefore, Zhu Changchun had committed obvious
tortious act within two months, so he and Huayu Company
should refund the aforesaid money, and bear the economic
losses caused to Huaning Company. 6. The issue of credits
and debts during Zhu Changchun’s operation of Huaning
Company should be adjudicated impartially on the basis of
the facts and laws. The credits and debts concealed by Zhu
Changchun during his control of Huaning Company were
disposed of before January 23, 2003, and Huaning Company had
been actually controlled and operated by Zhu Changchun
thereafter. During the negotiations between both parties,
Zhu Changchun concealed a large amount of credits and debts.
Except for the above listed credits and debts, Huaning
Company’s debts concealed by Zhu Changchun should be borne
by himself, while the credits and proceeds concealed by Zhu
Changchun should be returned to Huaning Company.
To sum up, Qian Bifang and Huaning Company pleaded the
present court to adjudicate: 1. Zhu Changchun and Huayu
Company should bear 70% of CNY 242,304.49 of the enterprise
income tax for 2003 which Huaning Company had prepaid, i.e.,
CNY 169,613.14; and should bear 70% the enterprise income
tax which Huaning Company should pay but was undetermined
due to incomplete documents, approximately CNY 12,000; 2.
Zhu Changchun and Huayu Company should bear: 70% of a total
amount of CNY 274,156.73 of general business tax and stamp
duty, etc. which Huaning Company had paid, i.e., CNY
191,909.71; 70% of all other items of taxes (business tax,
additional tax, land value-added tax, stamp duty, etc.)
which had not been confirmed by the taxation authority and
which Huaning Company should pay, approximately CNY 14,000;
3. Zhu Changchun and Huayu Company should bear the part of
construction undertaking costs above CNY 5.5 million by
January 23, 2003, which were confirmed through auditing and
which Huaning Company should pay construction undertaking
costs, approximately CNY 1.5 million; 4. Zhu Changchun and
Huayu Company should return Huaning Company’s documents
including the project documents; 5. The right to use the 28
mu of land in Huaning Company Bishuiwan should be determined
according to law, provided that the problems left over from
the right to use land and all expenses arising therefrom
should be borne by Zhu Changchun and Huayu Company; 6. Zhu
Changchun and Huayu Company should return Huaning Company’s
all vehicles, namely, a Builk (Su A-T6921) valued at CNY
357,368, an Iveco (Su A-49440) valued at CNY 147,643, a
Santana (Su A-51722) valued at CNY 172,000, and a Changhe
(Su A-T5045) valued at CNY 48,500, or otherwise it should
make indemnities at the original purchase prices; 7. Zhu
Changchun should bear a total amount of CNY 1,060,082 of
economic losses that Zhu Changchun had suffered during the
period when he operated Huaning Company which incurred from
indemnifying customers due to delay in delivery of the house
properties or due to project quality, totaling CNY
1,060,082; 8. Zhu Changchun and Huayu Company should return
CNY 7,385,582.57 of construction undertaking costs to
Huaning Company which it had encroached upon during the
negotiations from November 12, 2002 to January 23, 2003; 9.
Zhu Changchun and Zhu Ming’an should pay CNY 6 million of
consideration for the assignment of Qian Bifang’s stock
rights in Huayu Company; 10. Zhu Changchun should bear
Huaning Company’s debts which they concealed and which
occurred before January 23, 2003, and should refund the
concealed Huaning Company’s interests formed by January 23,
2003, approximately 70% of CNY 3.5 million, i.e, CNY
2,450,000; 11. Zhu Changchun should refund about CNY
27,020,427.4 of money it had unlawfully used, and bear the
tax for that sum of money; 12. The involved properties
should be audited; 13. Their right to bring a lawsuit
regarding the audited excessive part should be reserved; and
14. Zhu Changchun and Huayu Company reserve bear all
litigation costs.
Zhu Changchun and Huayu Company argued that, the appellate
grounds of Qian Bifang and Huaning Company were not tenable,
and the judgment of the first instance should be sustained
because the ascertainment of facts was clear and the
application of laws was correct. The specific grounds were
as follows:
(1) Qian Bifang’s and Huaning Company’s appellate grounds
for the taxes were not tenable. The “Huaning Resolution”
does not clearly set forth the kinds of taxes or the
proportions thereof, nor was it actually performed, so the
dispute arose after that. The “Huaning Huayu Resolution”
clearly sets forth that Huayu Company shall bear 70% of the
income tax of Huaning Company and Huayu Company for 2003,
and Huaning Company shall bear 30%. According to this
stipulation, the taxes other than income tax shall not be
borne at the foregoing proportions. The judgment of the
first instance did not support the claim of Qian Bifang and
Huaning Company over the taxes, which has not actually
occurred, as well as the business tax and stamp duty, etc.
over income tax. Such adjudication completely meets the
stipulation between both parties on the scope of taxes to
bear. In conclusion, the other party’s this appellate ground
could not be tenable, and should be rejected.
(2) On the issue of bearing the part of construction
undertaking costs above CNY 5.5 million. The “Supplementary
Resolution” sets forth that, Qian Bifang shall pay the part
of construction undertaking costs not above CNY 5.5 million
by January 23, 2003 for Bishuiwan project and Ziwei Garden
project developed by Huaning Company, and Zhu Changchun
shall pay the excessive part, with the amount to be paid by
Qian Bifang upon Zhu Changchun’s confirmation. Qian Bifang
failed to provide any evidence to prove that the
construction undertaking costs she paid had exceeded CNY 5.5
million, and in the judgment of the first instance, the
rejection of the said claim conformed to the stipulations
between both parties and the true facts, hence the appellate
claim had no sense, and should be rejected by the present
court.
(3) On the issue of returning Huaning Company’s documents
including project documents, the four vehicles, Qian
Bifang’s personal belongings, and some other physical
properties. Qian Bifang failed to prove that Huaning
Company’s documents, including the project documents, were
all controlled by Zhu Changchun, hence it was correct for
Jiangsu Higher Court to seal up the confirmed and collected
documents in court and to order both parties to take them
back. Jiangsu Higher Court had ordered Qian Bifang to take
back her personal belongings deposited in Huayu Company, and
Zhu Changchun and Huayu Company had no objection in this
regard, hence her appeal on this point was actually
meaningless. All the four vehicles were purchased before
January 17, 2001, and had been disposed of prior to the
conclusion of the “Huaning Huayu Resolution”. As agreed upon
between both parties, this matter does not need to be
settled separately, hence the judgment of the first instance
was correct.
(4) On the issues of the so-called CNY 1,060,082 of
indemnity losses caused by Zhu Changchun to Huaning Company
due to project quality, the CNY 7,385,582.57 of Huaning
Company’s funds in unlawful use, the concealed debts of
Huaning Company, and the CNY 2,450,000 of refunded interests
of Huaning Company which were concealed. Before January 23,
2003, Qian Bifang directly participated in the daily
operation of the company, so she should bear the same
liabilities for the result of operation of Huaning Company.
Huaning Company and Huayu Company were companies whose
shares were jointly controlled by both Zhu Changchun and
Qian Bifang, and had many connections in respect of payment
of funds. It was exactly in consideration of this particular
factor that both parties clearly agreed in the “Huaning
Huayu Resolution”, “The credits and debts between Huaning
Company and Huayu Company by January 22, 2003 shall be
offset against each other, and no recourse shall be
exercised”, “Except for the items agreed upon in the
resolution, other assets and liabilities of the two
companies shall be borne and dealt with by themselves
respectively.” Qian Bifang asserted that Zhu Changchun
should bear the concealed debts of Huaning Company and
refund CNY 2,450,000 of concealed credits of Huaning
Company, but she was never able to provide any evidence to
prove this assertion. Therefore, the ascertainment of the
aforesaid issues in the judgment of the first instance was
not inappropriate.
(5) On the issue that Zhu Changchun and Zhu Ming’an should
pay CNY 6 million of consideration for the 25% of Qian
Bifang’s stock rights in Huayu Company. The “Huaning Huayu
Resolution” and other relevant documents show that, when Zhu
Changchun assigned his 70% of stock rights in Huaning
Company to Wang Xianchen (Qian Bifang’s mother), and when
Qian Bifang assigned her 25% of stock rights in Huayu
Company to Zhu Ming’an (Zhu Changchun’s father), neither
party had to pay consideration for it. Zhu Changchun had
already assigned his 70% of stock rights in Huaning Company
to Wang Xianchen gratuitously pursuant to the contract, but
Qian Bifang failed to perform her own, hence she should of
course assign her 25% of stock rights in Huayu Company, and
had no right to claim for consideration. Therefore, the item
of adjudication in the judgment of the first instance was
correct, and should be sustained.
(6) On the issue of the right to use the 28 mu of land in
Bishuiwan and that on demanding Zhu Changchun and Huayu
Company to refund the unlawfully paid CNY 27,020,427.4 of
funds. These issues were not involved in the claims of Qian
Bifang and Huaning Company in the first instance, but
litigation claims added in the second instance. Zhu
Changchun and Huayu Company need not argue on the added
claims, because according to the basic requirements in civil
litigation, the appellate claims shall not go beyond the
scope of claims in the first instance. Therefore, the
present court should reject this appellate claim.
(7) On the issue of audit and that on reservation by Qian
Bifang and Huaning Company of the right to bring a lawsuit
regarding the excessive part. The shareholders of both
Huaning Company and Huayu Company were Zhu Changchun and
Qian Bifang, both parties agreed at the time of stock right
adjustment upon the way of partitioning properties disregard
the audit conclusion, but on the basis of the two
shareholder’s knowledge of the company and the approximate
estimation, and also on this basis, they formally concluded
effective resolutions including the “Huaning Huayu
Resolution”. Zhu Changchun and Huayu Company had fully
performed their own obligations, however, the other party
proposed to re-partition the company’s properties through
auditing, which was obviously unfair. Moreover, it was
inappropriate to regard the demand for audit as an
independent litigation claim in the second instance. As for
the so-called issue of “reserving the right to bring a
lawsuit” regarding the excessive part, it fully manifests
that the other party was still unable to clearly recognize
its own litigation claim by then, and their litigation
claims in the appeal were imagined by themselves, which had
to be rejected. Jiangsu Higher Court’s grounds for not
supporting the request of Qian Bifang and Huaning Company
for audit were appropriate, and the conclusion was correct.
Zhu Changchun and Huayu Company pleaded with the present
court to adopt the said grounds.
As for the other matters, they agreed upon the adjudication
in the judgment of the first instance. After both parties
reached the agreement, Qian Bifang issued a “dishonored
check of CNY 5.2 million”, made industrial and commercial
registration of modification of Huaning Company, changed the
owner of Zhu Changchun’s 70% of stock rights in Huaning
Company into Wang Xianchen, and appealed under the
circumstance of having enjoyed all the rights agreed upon
between both parties. All these facts were enough to show
that she had no basic honesty and credibility. To sum up,
Qian Bifang and Huaning Company’s appellate claims were
short of factual or legal basis, and should all be rejected.
It was verified by the present court after trial: In order
to effect the contents of the “Huaning Huayu Resolution”, on
January 23, 2003, Qian Bifang and Huaning Company concluded
with Zhu Changchun and Huayu Company the “Agreement on
Settling the Issue of the Right to Use the 28 mu of Land in
Bishuiwan”, and the “Agreement on Dealing with the 460 mu of
Land on Chengbei Road”. With respect to the issue of the 460
mu of land on Chengbei Road, i.e., Huaning Company’s credits
against Jiangning District Land Bureau, both parties agreed:
the land shall be owned by Huaning Company, both Zhu
Changchun and Huayu Company agree that it shall be taken
back by Huaning Company, and if the land is developed by
Huaning Company after being taken back, Huaning Company
shall pay CNY 14 million to Huayu Company; while if it is
taken back in cash, 70% of the amount shall be offered to
Huayu Company; if Huaning Company is able to take back
neither the land nor cash due to Zhu Changchun’s fault, Zhu
Changchun shall indemnify CNY 6,240,000 to Qian Bifang.
On the issue of Huaning Company’s credits against Jiangning
District Construction Bureau, the “Huaning Huayu Resolution”
concluded on January 23, 2003 between Qian Bifang, Huaning
Company and Zhu Changchun, Huayu Company sets forth that Zhu
Changchun shall exercise recourse of the credits. The
“Agreement on Assignment of Credits and Entrusted Collection
of Money” concluded between both parties on the same day and
the “Notice on Assignment of Credits” issued to Jiangning
District Construction Bureau also contain the expression of
the will of assignment of credits, partial assignment of the
credits, and entrusted collection of money, etc.
After Qian Bifang brought a civil lawsuit with Jiangning
District Court, and Jiangning District Court froze Huaning
Company’s CNY 13,754,252 of bank deposits upon Qian Bifang’s
request.
Qian Bifang’s No. 5 appellate claim on the issue of the
right to use the 28 mu of land in Bishuiwan, and her No. 11
claim on demanding Zhu Changchun to refund about CNY
27,020,427.4 of unlawfully paid funds and to bear the taxes
for that sum of funds, are litigation claims newly added in
the second instance. Moreover, Qian Bifang had clearly known
prior to the conclusion of the “Huaning Huayu Resolution”
that Zhu Changchun had used about CNY 27,020,427.4.
Other facts verified by the present court are basically the
same as those verified by Jiangsu Higher Court.
The present court holds that Zhu Changchun and Qian Bifang,
as shareholders of Huaning Company and Huayu Company,
reached the “Huaning Huayu Resolution” and other relevant
agreements regarding the two companies’ stock rights and
adjustment of the assets thereof by convening shareholders’
meetings and forming resolutions, which conform to legal
provisions, and shall be ascertained as effective.
The focuses in dispute between both parties are manifested
in the aspects such as whether audit shall be made for
settling the dispute in the present case, how to bear taxes,
construction undertaking costs and other relevant expenses,
how to dispose of the relevant house properties and other
physical properties including vehicles, whether Zhu
Changchun and Zhu Ming’an shall pay consideration regarding
Qian Bifang’s assignment of 25% of the stock rights in Huayu
Company, and whether the relevant credits shall be assigned,
and so on:
(1) On the issue of whether an audit shall be made for
settling the dispute in the present case.
Qian Bifang proposed in the first instance to audit the two
companies’ assets on the ground that the payable taxes were
unable to be accurately calculated by herself. Jiangsu
Higher Court held that it could be determined how to settle
the dispute between both parties over taxes, etc. only on
the basis of the existing stipulations between both parties,
hence her request for audit was not supported, and the
adjudication is not inappropriate. Qian Bifang requested
again in the second instance for auditing, and did not have
any new and more sufficient ground. Zhu Changchun and Huayu
Company asserted that both Zhu and Qian were shareholders of
the two companies, that both of them participated in
operation all along, and that they knew every well about the
basic information of the company. All the agreements
concluded between both parties by surrounding the partition
of stock rights were based on negotiations between both
parties without making any audit, and moreover, Zhu
Changchun and Huayu Company had fully performed their
obligations, hence they refused to make an audit. Zhu
Changchun’s ground for assertion was tenable and should be
adopted.
(2) On the issue of how to bear the taxes, the construction
undertaking costs and other relevant expenses.
1. On the issue of the taxes that Huaning Company should
pay. The “Huaning Huayu Resolution” only sets forth the
proportions for the two companies to bear the enterprise
income tax for 2003, and has no specific and clear
stipulations on taxes other than enterprise income tax.
Since both parties agreed that “the assets and liabilities
of Huaning Company and Huayu Company other than those above
listed shall be enjoyed and dealt with by the companies
themselves”, it was not inappropriate for the judgment of
the first instance not to support the claims of Qian Bifang
and Huaning Company regarding the taxes that had not
actually occurred, and regarding the taxes other than
enterprise income tax such as business tax, stamp duty, etc.
The ground for the appellate claim of Qian Bifang and
Huaning Company is not tenable and shall be rejected.
2. On the issue of whether Qian Bifang and Huaning Company
shall jointly and severally pay CNY 5.2 million to Huayu
Company. According to the “Huaning Huayu Resolution”,
Huaning Company shall pay CNY 6 million to Huayu Company.
Later, both parties agree to adjust the amount into CNY 5.2
million, and Huaning Company shall of course pay that amount
as agreed. Since Huayu Company was the right holder in the
first instance for that amount of money, i.e., CNY 5.2
million, it was not inappropriate for the judgment of the
first instance to support that litigation claim. Therefore,
the appellate ground of Qian Bifang and Huaning Company is
not tenable, and shall be rejected.
3. On the issue of bearing the part of construction
undertaking costs above CNY 5.5 million. Both parties did
agree that the part of construction undertaking costs for
Bishuiwan project above CNY 5.5 million should be borne by
Zhu Changchun and Huayu Company, but the construction
undertaking costs verified by Jiangsu Higher Court to have
been paid by Qian Bifang were only CNY 3 million odd, which
does not reach the condition for Zhu Changchun and Huayu
Company to bear the excessive part. Therefore, her claim
that the other party should bear about CNY 1.5 million does
not conform to the facts, and it was correct for Jiangsu
Higher Court not to support the claim.
4. On the issue of bearing the CNY 1,060,082 of Huaning
Company’s indemnity losses due to poor project quality, the
issue of whether Zhu Changchun unlawfully used Huaning
Company’s CNY 7,385,582.57 of funds, and the issue of
whether Zhu Changchun should bear the concealed debts of
Huaning Company and refund the CNY 2,450,000 of concealed
interests of Huaning Company. Huaning Company’s problematic
construction project was built up during both parties’ joint
operation, and Zhu Changchun paid CNY 7,385,582.57 of
Huaning Company’s funds before the “Huaning Huayu
Resolution” was concluded. The “Huaning Huayu Resolution”
clearly sets forth that the credits and debts between
Huaning Company and Huayu Company before January 22, 2003
shall be offset against each other, no recourse shall be
exercised, and both parties shall respectively bear and deal
with other assets and liabilities except the stipulated
items. In addition, although Qian Bifang asserted that Zhu
Changchun should bear Huaning Company’s concealed debts and
refund CNY 2,450,000 of Huaning Company’s concealed credits,
she did never provide any evidence to prove her assertion.
Therefore, it was not inappropriate for the judgment of the
first instance to reject Qian Bifang’s aforesaid
counterclaim.
(3) On the issue of whether the house properties under the
name of the two companies shall be exchanged, and whether
Huaning Company’s documents, including the project
documents, the four vehicles and some other physical
properties including Qian Bifang’s personal belongings shall
be returned.
Zhu Changchun alleged that, although both parties expressed
their wills in Jiangning District Court’s written
investigation records that the relevant house properties no
longer had to be adjusted, the “Huaning Huayu Resolution”
should still be performed since the other party did not
perform its obligation at all. Jiangsu Higher Court held
that, the relevant house properties which no long require
adjustment were merely an expression made by both parties in
the process of Jiangning District Court’s investigation,
instead of a formally reached agreement, and thus should
have no compulsory binding force upon the parties.
Furthermore, in consideration of the actual performance of
agreements by both parties, it was not inappropriate for
Jiangsu Higher Court to support Zhu Changchun’s this claim
by ordering both parties to perform the “Huaning Huayu
Resolution”. Qian Bifang failed to provide any evidence in
the second instance again to prove this appellate claim,
hence this claim shall not be supported, either.
Since Jiangsu Higher Court had adjudicated that both parties
should take back their respective documents sealed up in the
court, and since Qian Bifang and Huaning Company have no
evidence to prove that Huayu Company was still holding
Huaning Company’s documents, they shall of course obey the
said adjudication. Qian Bifang demanded the other party to
return her personal belongings deposited in Huayu Company,
and Jiangsu Higher Court has adjudicated her to take them
back, to which neither Zhu Changchun nor Huayu Company
proposed any objection. Therefore, there is no necessity to
appeal regarding this supported litigation claim, and she
may just take them back.
The four vehicles under the name of Huaning Company had
already been disposed of before the “Huaning Huayu
Resolution” was concluded. As a shareholder who had
participated in the company’s operation, Qian Bifang ought
to know this fact. As agreed upon between both parties, this
matter shall be borne and dealt with by Huaning Company
itself.
Therefore, it was not inappropriate for the judgment of the
first instance to have dealt with the aforesaid issues.
(4) On the issue of whether Zhu Changchun and Zhu Ming’an
shall pay CNY 6 million of consideration regarding Qian
Bifang’s assignment of 25% of her stock rights in Huayu
Company.
Both Qian Bifang and Zhu Changchun were shareholders of both
Huaning Company and Huayu Company. The “Huaning Huayu
Resolution” and all other relevant documents show that, when
the two companies adjusted the stock rights and partitioned
the assets, they had taken consideration for the stock right
assignment into account, and neither party had to pay any
consideration separately. Both parties agreed that Zhu
Changchun should assign his 70% of stock rights in Huaning
Company to Wang Xianchen (Qian Bifang’s mother), and Qian
Bifang should assign her 25% of stock rights in Huayu
Company to Zhu Ming’an (Zhu Changchun’s father). In fact,
Zhu Changchun has already assigned his 70% of stock rights
in Huaning Company gratuitously to Wang Xianchen as agreed,
but Qian Bifang failed to perform her obligation during a
long time. On the contrary, she demanded Zhu to pay CNY 6
million of consideration in this regard. Such a claim was
short of factual or legal basis, and shall not be supported.
(5) On the issue of how to deal with the credits against
Jiangning District Construction Bureau and those over
Jiangning District Land Bureau.
Both parties had no dispute over the issue of how to
distribute the two items of realized credits. That is, since
both parties acknowledged that the credits against Jiangning
District Construction Bureau were realized, the balance
after deduction of four items of expenses (namely, the
maintenance and repair funds for Bishuiwan Residential Area,
the real property maintenance and repair funds for Ziwei
Garden, the early demolishment and resettlement expenses for
Bishuiwan Residential Area, and the road building expenses
for Bishuiwan Residential Area) shall belong to Zhu
Changchun and Huayu Company. After the credits against
Jiangning District Land Bureau were realized, both parties
agreed upon the proportions of distributing the land or the
cash. However, both parties have divergences in respect of
whether, before credits were assigned between Zhu Changchun,
Huayu Company and Qian Bifang, Huaning Company before being
realized, that is, who shall claim against the debtor in
whose name.
On the basis of the facts verified by Jiangsu Higher Court
and the present court, the credits against Jiangning
District Construction Bureau were previously enjoyed by
Huaning Company, and the several agreements and documents
executed by both parties in the present case have also
mentioned the said credits. Specifically, the “Huaning Huayu
Resolution” sets forth that Zhu Changchun shall take back
the credits, but does not mention the assignment of any
credits. In the “Agreement on Assignment of Credits and
Entrusted Collection of Money” and in the “Notice on
Assignment of Credits” issued to Jiangning District
Construction Bureau, there are expressions of different
opinions regarding the assignment of credits, entrusted
collection of money, and partial assignment, etc. Therefore,
both parties had unclear stipulations and inconsistent
expressions of will regarding whether the credits were
assigned and whether they were entirely assigned or
partially assigned. The judgment of the first instance
pointed out that, after the dispute arose, both parties
agreed to perform the “Huaning Huayu Resolution”, hence the
facts shall be ascertained according to the contents set
forth in the “Huaning Huayu Resolution”, and the said
credits shall be adjudicated to be owned by Zhu Changchun.
Nevertheless, on the basis of the grounds expatriated by
Jiangsu Higher Court, the said credits shall, under the
“Huaning Huayu Resolution”, be still enjoyed by Huaning
Company, while Zhu Changchun shall merely take them back,
and it shall not be adjudicated that the credits shall be
assigned. In conclusion, Huaning Company’s this appellate
ground is tenable, and shall be supported. The settlement
result in the judgment of the first instance is erroneous,
and shall be corrected.
With respect to the issue of the credits against Jiangning
District Land Bureau, i.e., 460 mu of land on Chengbei Road,
as agreed upon in the “Huaning Huayu Resolution” and the
“Agreement on Dealing with the 460 mu of Land on Chengbei
Road”, the land belonged to Huaning Company, but Zhu
Changchun and Huayu Company agreed that Huaning Company
could take it back and then compensate Huayu Company. It can
be deduced from the facts that the credits shall be claimed
in the name of Huaning Company against the debtor, but there
is no clear expression on the assignment of credits. Jiangsu
Higher Court ascertained the effectiveness of the “Huaning
Huayu Resolution”, and adjudicated that the credits should
be assigned to Zhu Changchun and Huayu Company, which did
not conform to the agreement between both parties. The
ground for Qian Bifang and Huaning Company for requesting
amendment of that item in the judgment of the first instance
is tenable and shall be supported.
(6) On the issue of the right to use the 28 mu of land of
Bishuiwan and the refundment by Zhu Changchun and Huayu
Company of the CNY 27,020,427.4 of unlawfully drawn money.
The two litigation claims were added by Qian Bifang and
Huaning Company in the second instance, which Zhu Changchun
and Huayu Company did not acknowledge, hence both parties
shall settle the matter by themselves through negotiations,
or through a separate legal avenue.
To sum up, the present court adjudicates as follows in
accordance with Item (3) of Paragraph 1 of Article 153 of
the “Civil Litigation Law of the People’s Republic of
China”:
1. Item (1), Item (2), and Items (5) through (9) of No. 6
(2004) civil judgment of Jiangsu Higher Court shall be
sustained;
2. Item (3) of No. 6 (2004) civil judgment of Jiangsu Higher
Court shall be modified as: The credits enjoyed by Jiangsu
Huaning Real Estate Development Limited Company against the
Construction Bureau of Jiangning District, Nanjing City,
Jiangsu Province shall be dealt with according to Paragraph
6 of Article 2 of the “Resolution of the Shareholders’
Assembly of Jiangsu Huaning Huayu Real Estate Development
Limited Company”;
3. Item (4) of No. 6 (2004) civil judgment of Jiangsu Higher
Court shall be modified as: the credits enjoyed by Jiangsu
Huaning Real Estate Development Limited Company against the
Bureau of Land and Resources of Jiangning District, Nanjing
Municipality, Jiangsu Province shall be dealt with according
to Paragraph 2 of Article 2 of the “Resolution of the
Shareholders’ Assembly of Jiangsu Huaning Huayu Real Estate
Development Limited Company”;
4. Other appellate claims of Qian Bifang and Jiangsu Huaning
Real Estate Development Limited Company shall be rejected.
For the CNY 276,010 of case acceptance fee in the first
instance, Qian Bifang and Jiangsu Huaning Real Estate
Development Limited Company shall bear CNY 110,404, while
Zhu Changchun and Jiangsu Huayu Real Estate Development
Limited Company shall bear CNY 165,606. The CNY 107,893.49
of counterclaim case acceptance fee shall be borne according
to the judgment of the first instance. As for the CNY
383,903.49 of case acceptance fee of the second instance,
Qian Bifang and Jiangsu Huaning Real Estate Development
Limited Company shall bear CNY 218,297.49, while Zhu
Changchun and Jiangsu Huayu Real Estate Development Limited
Company shall bear CNY 165,606.
The present judgment shall be final.
Presiding Judge Cheng Xinwen
Acting Judge Liu Yinchun
Acting Judge Chen Chaolun
April 13, 2006
Court Clerk Wang Dongying |
|
