Shen bin / Wen
On July 7, Li Guoqing took dozens of people to Dangdang company to screw locks and pry cabinets, snatched company documents and U shields, and was punished by the police as administrative detention. In fact, this is a repeat of the old trick. In April this year, he took five “big men” to Dangdang company to grab the official seal. On that occasion, after Dangdang called the police, it was not illegal.
Although in the field of public opinion, Li Guoqing plays a clown, more like an adult version of the “government in exile” game, but before the public security organs for Li Guoqing snatched the official seal as not illegal, still let many people be surprised. In fact, it is not uncommon for shareholders of private enterprises to fight for the control of the company by seizing the official seal and practicing martial arts.
For example, after Wu Changjiang, the former chairman of the listed company Leishi lighting, was dismissed in 2014, Wu Changjiang was asked to hand in the official seal by six or seven big men holding two arms. In 2011, zhenkungfu’s shareholders fought against each other. Cai Chunhong, the sister of the founder Cai Daba, and the pan family accused each other of forcing the company’s financial personnel to hand over the property keys and rob the company’s official seal. On May 8, this year, bit mainland, one of the three mining machinery giants, fought for internal control, and openly robbed the official seal and business license at the gate of the government service center in Haidian District, Beijing.
Why is it that in such a large company, the disputes among shareholders depend on whose fist is hard and who can get the “national jade seal”? Behind this is the problem that the “third personality” of companies and enterprises is difficult to obtain social recognition and judicial protection. The final result is that the internal control right of companies and enterprises has become a naked jungle game.
First of all, as a profit-making legal person, an enterprise has a “third personality” independent of shareholders. The significance of legal person qualification is to separate the property of the company from that of the shareholder. The property of the company belongs to the company and the shareholder has no right to distribute it directly. The company’s cash, license and other materials belong to the company’s property, not directly belong to shareholders. The company has independent capacity for civil rights. It is a “person” juxtaposed with a natural person in the sense of civil law. It has the attribute of “person”. It can not be completely equated with “property”, only the property attribute of shareholders. However, it is easy for the society to ignore the company’s independent legal person status and regard the company’s business as a “housework” of shareholders. Even if the shareholders infringe on the interests of the third personality of the company as a legal person, they still think that this is “shareholders’ disposal of their own property”, which should not be controlled by the police. This is a misconception.
On July 9, Sina law asked published a lawyer’s question and answer, saying: “family businesses should not confuse household matters with companies. As a silent third party, Dangdang company should pay attention to its legal rights and interests. ” As a result, Yu Yu was so excited that he wrote to “Sina FA Wen” in person to express his thanks. If the whole society still thinks that it is a “domestic matter” that husbands beat their wives, then the anti domestic violence law can not be promulgated. If the public generally thinks that it is a “private matter” for shareholders to rob the company’s official seal, and does not think that the independent personality of the company has been infringed, then the corresponding implementation of the rule of law is doomed to be very difficult.
Secondly, in the current judicial mechanism, the company’s “third personality” is not strictly protected, which in disguise acquiesces in the game of “seizing the seal by violence” among shareholders. Even the obvious illegal violence is difficult to be corrected in time.
In principle, they are all civilized people. Some companies are already listed companies. How can disputes be resolved in court? But why do we have to rely on big men to solve them? At present, the judicial process is really difficult to solve the problem of grabbing the official seal.
In fact, some local courts have formed an embarrassing “Article 24 Military regulation” in response to the ex post relief measures of “grabbing the official seal”. After the official seal is taken away by the manager or other shareholders, the enterprise will sue, but who will sue? If the chairman of the board goes to sue, he will be rejected, because seizing the seal infringes on the interests of the company’s legal person. The chairman of the board of directors is not the qualified subject, and the major shareholders are not the qualified subject. Therefore, we can only Sue by the legal person who has stolen the official seal. But the legal person needs to take out the official seal to sue. What about the official seal? The official seal has been stolen It’s a perfect “dead circle.”.
Because of the lack of legal mechanism, the violence of seizing the official seal rarely gets severe punishment from the law, and it is difficult to get the official seal back with dignity through judicial proceedings, so we can only fight through violence, just like returning to the jungle world. Therefore, from the previous real Kung Fu to Leishi lighting, and then to Dangdang, the farce of grabbing the official seal has happened again and again.
In recent years, the central government has continuously issued “opinions on improving the property rights protection system and protecting property rights according to law” and other documents to promote the protection of property rights of private enterprises. In addition to policies, there is also a need for supporting protection and punishment mechanisms. In the final analysis, it is necessary to get through the eight channels of internal governance and external judicial protection.
(the author is a senior media person)
Shen bin / Wen