Category: Money tips Release Date: 2006-12-06
Last week, host guests Description:
Wang Huan, JD, economics, post-doctoral. The East Kunlun Law Firm Shanghai Branch Executive Director. Shanghai Academy of Social Sciences research assistant at the Law Institute of Shanghai Academy of Social Sciences, Deputy Secretary-General, Institute for Monetary Research. Early years practitioners in the well-known brokerage firms to engage in investment banking for many years, for the financial securities market has studied the practice of legal theory. Guest host this week, notice:
Li Xin, newspaper investor activism volunteer corps, members of the Qilu Law Firm Partner Law
There are many readers visit the stock market last week, 3.15 Website (www.stock315.com.cn)
The Advisory initial offerings, in fact, the Shanghai Securities News reports that the Nanjing "profit 100 generation" event (see December 16, 2005 A3 version, December 20 A3 version) has sounded the alarm to the vast number of investors. Here, the combination of agents selling the company's common practices, on the investors in buying the so-called "initial" process in the formation of the legal relationship to make a simple analysis.
First, the main equity transfer contract
Investors invested in the "initial" lack of the expected benefits, they often want to obtain a clear "statement", which requires investors to first figure out who the other contracts.
Contract law is relatively strict compliance with the principle of relativity of contracts, the so-called relativity of contracts, mainly for the subject of contracts, content and responsibilities of relativity, that is, except the law, the contract provides otherwise, only parties to the contract can only be enjoyed under the contract rights and assume obligations under the contract, the contract can not claim other than the third contractual right, the contracting parties have no right to create obligations for third parties.
Thus, while many investors can not be achieved in the expected benefits of the time, think of all the company were to assume responsibility. However, in many equity transfer contract with the investors to equity transfer agreement entered into the contract the other party, often the company's original shareholders, precisely because the subject is not a contract company, so to directly hold the company's responsibility there was no legal obstacles.
Company that issued shares directly with investors should be signed subscription contracts, rather than the transfer of the contract, because our corporate law to hold their shares of the company's restrictions are very strict, basically does not appear the company will own stakes transferred to not a particular investor.
Therefore, investors in the equity transfer contract signed, even if the terms of the contract exists in "buy-back clause" (that is, if the company can not follow the expected time to market, then investors will be held at a certain price repurchase shares), investors First look at, or a contract the other party is.
If it is the shareholders, then the contract has no right to set the repurchase obligation of the company, the terms of agreement is invalid; if a shareholder buy-back, then how to ensure their ability to complete the repurchase obligation, this is a real problem.
Second, the role of investment advisory firm
In reselling the "initial" process, the investment advisory firm shareholders tend to hold power of attorney, which means that they are agents of shareholders, the company's shareholders are the principal-agent relationship. According to the principle of principal-agent contract, the agent within the purview of the agency in order to be implemented by an agent on behalf of civil legal action, was an agent of the agent's agent behavior, bear civil liability. Therefore, the investment advisory firm is an agent of the shareholders, the consequences of engaging in a legal act borne by the shareholders. Principal-agent in the agents are aware of the matter is still illegal to conduct agency activities, or are agents are aware of the proxy agent is illegal does not mean that opposition, have been agents and agents jointly and severally liable. Transfer of shares between the shareholders, even if implemented through an agent, it is a normal legal, but for the conduct of agents in the agency over exaggerated or even fraudulent circumstances, when parties need to burden of proof of fraud责任.
From an investment advisory firm's common practices of view, is often various forms of promotion will be held, as well as telemarketing, in introducing the time it was evasive, stressing that the company is listed after the attractive returns, while for how the company listing, listing the progress of the work avoided or in the "start" and other meaningless words prevarication, for a written commitment to implement even more rare. For investment advisory firm printed promotional materials, in the law should be to offer the invitation, it is a non-binding, but according to "On hearing the dispute cases of judicial interpretations of the contract for the sale of commercial housing," defined in the "offer invitation and commitment to establish a precise description of , and of contracts and prices have a significant impact to determine, and can be regarded as an offer, "the principle of analogy, as long as the commitment promotional materials specifically identified can be regarded as terms of the contract.
If investors want to prove intentional fraud, according to "inform the other party deliberately false information or deliberately concealing the real situation, induces the other party to the wrong meaning of that and can be identified as fraudulent conduct" requirement, under the hands of ordinary investors The relevant evidence, the existence of quite difficult.
Thus, in the "initial" trading in the interests of investors is very difficult to be protected, and its very simple reason, many of the company's qualifications and ability to simply reach the conditions for listing, the story from the beginning, good pre - outcome, investors once on the show, its fate is preordained.
