I. Have a clear understanding of the basis of the right of claim and the facts of the case

1. Clarify the basis of your rights

Before filing a lawsuit, the plaintiff should first clarify the purpose of the lawsuit, determine the basis of its claim right (such as determining whether it is based on the claim right on the creditor's right or the claim right on the real right, etc.), clarify the legal relationship involved, and formulate the litigation strategy in combination with facts and laws and regulations.

2. Make clear the accused's alleged actions

The plaintiff should make clear the nature and direction of the defendant's accused behavior. If the plaintiff sues the defendant for breach of contract, it should specify the terms of the contract violated by the defendant; If the plaintiff sues the defendant for infringement, the defendant's infringement and the specific rights of the plaintiff violated should be clearly defined, and the corresponding supporting materials should be used to prove it.

2. Fully prepare evidence materials

Evidence is the key to win the game between the two parties in the process of litigation. The court determines the facts of the case and makes a judgment based on the evidence provided by the two parties. According to the different purposes of proof, evidence can be roughly divided into three categories: "evidence of rights", "evidence of infringement" and "evidence of compensation". "Evidence of rights" is used to prove the basis of the plaintiff's claim, "evidence of infringement" is used to prove the defendant's infringement or breach of contract, and "evidence of compensation" is used to prove the defendant's compensation and its calculation basis. The evidence provided to the court should have legitimacy, authenticity and relevance, and the plaintiff needs to notarize the evidence when necessary to ensure that the evidence has a high probative power.

Third, administrative reporting, criminal reporting and court prosecution combined

According to the specific facts of the case, in some cases, you can choose to first carry out administrative reports and criminal reports to quickly stop the infringement of the defendant. If you first report fake and shoddy products to the market supervision and management department, according to the specific circumstances of the case, choose the litigation strategy of filing a lawsuit after the administrative report. A typical case of the real time bus query software "cool Mike" operating company found that the similar APP "car came" illegal means to invade the background to grab data, "cool Mike" first reported to the public security "car came" suspected of illegally obtaining computer information system data crime, the public security immediately filed an investigation, after the criminal case trial, "Cool Mike" filed an unfair competition lawsuit against "Car came" and was eventually awarded 500,000 yuan. Enterprises can refer to this.

4. Avoid the expiration of the statute of limitations or the expiration of the exclusion period

The limitation of action is the time limit for the parties to claim their rights within a certain period of time stipulated by the law. The limitation of action prescribed by the current law is 3 years. The limitation of action period is calculated from the date on which the right holder knows or should know that the right has been harmed and the obligor. However, the people's court shall not give protection to those whose rights have been harmed for more than 20 years from the date of injury. The provisions on interruption, suspension and extension of the limitation of action shall apply.

The exclusion period refers to the period during which a certain civil right stipulated by law effectively exists, which is different from the statute of limitations and is an invariable period, that is, if the right is not exercised during the period, the right is difficult to obtain legal protection. The discontinuance, suspension and extension provisions do not apply during the discontinuance period.

In the process of safeguarding rights, enterprises should pay special attention to the provisions of the law on the statute of limitations and the period of exclusion. In case of ordinary disputes such as payment arrears and contract breach, the limitation can be interrupted by sending a lawyer's letter to the other party, notification statement and other ways. If the right of cancellation is exercised in respect of a voidable contract, an action shall be brought before the court within one year; If the other party proposes to cancel the contract or cancel the debt, and we have not agreed on the objection period with the other party, we shall proceed with the lawsuit within 3 months. These details and rights, in fact, require enterprises to establish a strong risk control system, there are specialized legal affairs or specially commissioned external lawyers to sort out this, so as not to claim rights in a timely manner, resulting in the loss of legal protection of relevant rights beyond the statute of limitations or exclusion period.

As a plaintiff's litigation strategy, it is also necessary to consider the competition and cooperation of claims (such as whether to choose infringement litigation or breach of contract litigation, etc.), the choice of rights, the optimization of the litigation opportunity, the choice of the defendant's subject and jurisdiction, and even the application of applicable law in specific cases (such as foreign-related cases). If these are elaborated, it will be a lot of space, will bring the "building" of the book to the distortion, the enterprise actually only needs to grasp one point: professional things to professional people to do, the highest efficiency. Legal matters, entrusted legal affairs or lawyers can operate, these mouthful of words, no need to investigate!

[Case Study -- Plaintiff's appeal Strategy in Dispute case of requesting Company to buy back shares]

In Case No. 7867 of Su 0508 Minchu of Suzhou Gusu District People's Court (2019), the plaintiff's factual reasons are as follows:

The plaintiff holds 220,000 shares of the defendant company, accounting for 0.4862% of the total shares of the defendant company. The business term stipulated in the original articles of association of the defendant is 20 years, and the business term is from July 1, 1999 to June 30, 2019. On June 26, 2019, the defendant held a general meeting of shareholders to pass a resolution to extend the business term, and the plaintiff voted against the motion. On August 5, 2019, the plaintiff requested the defendant to repurchase its shares. After that, the original and the defendant negotiated on the price of the repurchase of the shares, but failed to reach an agreement.

In Case No. 11028 of Guangdong 0304 Minchu, Futian District People's Court of Shenzhen (2019), the plaintiff's factual reasons are as follows:

The defendant was established on January 28, 2008, with a registered capital of 2 million yuan. Shareholder Xiao Bing held 21.276% of the shares, shareholder Yuan Defang held 46.098% of the shares, shareholder Wu Zhihong held 31.126% of the shares, and the plaintiff held 1.5% of the shares. Since the establishment of the defendant in 2008, the defendant has not distributed profits to the plaintiff for five consecutive years, and the defendant has made profits for five consecutive years, and the defendant's behavior has seriously damaged the legitimate rights and interests of the plaintiff.

In Case No. 38106 of Beijing 0106 People's Court of Fengtai District of Beijing (2019), the plaintiff's factual reasons are as follows:

On May 29, 2015, the plaintiff paid the equity subscription payment of 500,000 yuan to the defendant, and the defendant issued the Equity Subscription Contribution Certificate to the plaintiff. On June 2, 2015, the two parties of the original defendant signed the Equity Subscription Agreement, agreeing that the plaintiff should invest 500,000 yuan to subscribe for the employee shares internally issued by the defendant, and the defendant should complete the listing on the New Third Board before January 31, 2016, otherwise the plaintiff may choose to buy back the shares by the defendant, and the purchase price shall be the subscription price paid by the plaintiff and the interest on bank loans during the same period.

In Case No. 4971 of Shaanxi 0116 Minchu of Xi 'an Chang 'an District People's Court (2020), the plaintiff's factual reasons are as follows:

At the end of 2017, the defendant Yingpu Company expanded its scale due to operational needs, raised equity capital externally, and said that the company was ready to be listed on the New Third Board. On March 8, 2018, the plaintiff Sun Zhaoxia and the defendant Yingpu Company signed the "non-public Subscription Contract for Directional Capital Increase and Share Expansion", agreeing that the plaintiff would increase the capital for the defendant. The agreement stipulates that the plaintiff will contribute $300,000 and subscribe for 100,000 shares at a price of $3 per share. At the same time, the two parties signed the "non-public Directional Capital Increase and Share Repurchase Agreement", stipulating that if Yingpu Company fails to be listed on the New Third Board before the end of October 2019, the plaintiff has the right to ask the defendant to repurchase the shares, refund the number of shares of the plaintiff according to the par value of the share certificate, and pay the plaintiff the capital usage fee at an annualized rate of 10%. The fee paid is calculated on the basis of the plaintiff's actual investment time.

Through the above cases, it can be found that the basic strategy of the plaintiff's appeal in the dispute case requesting the company to purchase shares is as follows:

1. Explain the source of equity: In general practice, the source of equity is mostly divided into original acquisition or subsequent acquisition, the so-called original acquisition is the company's co-sponsors or original shareholders; The so-called acquisition of succession may exist in the way of equity transfer, company capital increase, equity inheritance to become a shareholder of the company, because the basis for requesting the company to purchase shares is that the plaintiff must have the qualification of shareholders, before it can be regarded as a qualified plaintiff, otherwise it is likely to be rejected when filing a lawsuit because it does not have the most basic qualification of shareholders.

2. Explain the reasons for repurchase: The reasons for this part are generally divided into three categories, including statutory, prescribed and non-liability. No matter which part of the reasons, the plaintiff needs to explain what reasons he or she requires the company or individual to buy back his or her equity as a shareholder when suing. The factual reasons in this part also determine the focus of the dispute that the other party will defend in the later litigation process. It is suggested to clarify in the petition that if the company fails to pay dividends for five consecutive years and at the same time there is the fact that the company's operating period expires and the shareholders' meeting extends the period, but the plaintiff disagrees, it is possible to fight for more space for itself in the subsequent litigation.

3. Explain the repurchase price: The price of the repurchase requires the plaintiff to explain the fact that the company or a specific entity is required to repurchase at a specific price according to what calculation method or basis.

4. Submit evidence to support: In such share repurchase cases, most of the plaintiffs lost because they failed to prove the existence of the fact that the company or individual should repurchase its shares in accordance with the provisions of the evidence process, such as the shareholders have no evidence to prove that the company has failed to pay dividends for five consecutive years, the company's operating term resolution has been extended, or the buyback has not been agreed in the gambling agreement. It will result in a high probability that the plaintiff's claim will not be upheld.

To sum up, it is suggested that the plaintiff launching the buyback application should plan its own litigation strategy before the lawsuit, and submit it according to the source of equity, the reason for the buyback and the buyback price with the corresponding evidence of the above three points.