Disputes between a company in Harbin and a company in Shanghai and other companies related to Zhang Mou

[Case classification] : Contract dispute

[Commissioned time] : May 2017

【 Brief introduction 】

Defendant Zhang Mou, Company A and the plaintiff signed a XX agreement on August 26, 2015, agreeing that because Zhang mou has actual influence on the operation of Company B, if Company B's dividend to the plaintiff is less than 2 million yuan before the end of 2016, Zhang Mou is willing to directly compensate the plaintiff in full according to the above dividend standard before the end of the year. Company B is jointly and severally liable for the guarantee. After the above agreement was signed, Company B did not pay shareholder dividends to the plaintiff before the end of 2016. On December 26, 2016, Zhang issued A "confirmation letter" to the plaintiff, confirming that Zhang should remit 2 million yuan compensation to the plaintiff's account before January 20, 2017, and Company A carries out joint and several guarantees on the compensation listed in the letter and seals the confirmation letter. After Zhang and A company failed to fulfill the commitments listed in the confirmation letter, the plaintiff filed a lawsuit.

【 Lawyer analysis 】

First of all, despite the provisions of the Company Law of China, the investment of a company in other enterprises or the provision of guarantees for others shall be decided by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the articles of association of the company; Where a company provides a guarantee for a shareholder or actual controller, a resolution must be made by the shareholders' meeting or the shareholders' general meeting. However, this article does not explicitly stipulate that the guarantee contract will be invalid if the company provides guarantee in violation of the above provisions. The articles of association and resolutions of the shareholders' meeting are internal resolutions of the company and do not have external effect, so the third party does not have the obligation to review them. Therefore, the above legal provisions only apply to regulate the internal behavior of the company, and can not restrict the counterpart of the guarantee contract signed by the company. At present, Company A has not provided evidence to prove that the plaintiff is not A bona fide party, and the resolution that Company A has not provided the shareholders' meeting to agree on the guarantee as agreed in the Special Agreement on Share repurchase does not affect the assumption of the guarantee liability. Secondly, although Zhang is the legal representative and shareholder of Company A when the Confirmation Letter is formed, the confirmation letter is the confirmation of the debt promised by Zhang in the Special Share repurchase Agreement, not the generation of new debt, and Company A shall bear the corresponding joint and several guarantee liability as the guarantor of joint liability.

【 Verdict 】

Represented by Xue Tianhong, the court finally supported the plaintiff's claim and ordered the defendant Zhang to pay the plaintiff's principal and interest, and A company assumed joint and several liability for Zhang's payment obligation.