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The "Violation" Guarantee Of Listed Companies Is Frequently Seen In The Galactic Life.

2019/12/17 10:09:00 0

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Recently, galactic creatures have been caught in an awkward position because of the "violation" guarantee. At the beginning of December 2019, the Jiangxi provincial district court tried to implement some of its operating assets belonging to the galaxy group and has communicated with the evaluation agencies to the listed companies to carry out the implementation. It started in 2017, and Galaxy became a guarantee for the controlling shareholder Galaxy Group.

In December 16th, the relevant person in charge of the galaxy bio told the twenty-first Century economic report that the galaxy was "lying gun" and was responsible for the execution of the lawsuit. At that time, only the chairman signed and did not go through the relevant procedures through the shareholders' meeting. If the judicial execution involves the assets of the Galactic life, the loss of the Milky Way organism will be completely passive, and the minority shareholders of the Galactic life will also suffer losses.

For the violation of the guarantee, galactic creatures are not concealed. They acknowledge that they are responsible for management problems and have not evade punishment. In the view of the industry, this is closely related to the summary of the November 2019 national civil and commercial judicial work conference (hereinafter referred to as "minutes"). A senior lawyer in the industry pointed out to the twenty-first Century economic report reporter that after the introduction of the minutes, the probability of a listed company from being liable for a guarantee has been greatly increased. The listed company has no longer concealed or even voluntarily exposed and filed a lawsuit against the undisclosed security guarantee, and requested the court to confirm that the violation guarantee was invalid.

Feng Yongqiang, an executive director and partner of Jiangsu Yicheng law firm, and a doctor of law at Nanjing University, told the economic news reporters twenty-first Century that there has been controversy over the responsibility of the listed companies for violation of security for many years. However, the guarantee provided by the Galaxy Group for the holding group has not been resolved by the general meeting of shareholders. It has violated the sixteenth articles of the company law, the relevant provisions of the external guarantee of the listed company and the violation guarantee of the bylaws of the galaxy company. It should not have legal effect on the Galactic life, and does not have any legal restrictions.

Listed companies guarantee "step on thunder"

Listed companies are very few because of the guarantee of "stepping on thunder".

For example, the Jiangsu Securities Regulatory Commission issued a warning letter to the tetracyclic bio in October 2017. Its subsidiary company provided 64 million 500 thousand yuan loan for three companies between 2011 and 2012, without the approval of the board of directors and shareholders' meeting, and failed to fulfill the obligation of information disclosure. At present, tetracyclic organisms are still being investigated.

While Galaxy life was raised by the Galaxy Group's demand for funds, the then responsible person, Yao Kuo Ping, was introduced by the middleman to contact with GUI bin. In August 10, 2017, he signed the loan contract with two people named Li Yu and Li Hong appointed by Gui bin. The contract stipulated that Li Yu and Li Hong offered 300 million yuan loan to the galaxy group, the monthly interest rate was 2.5%, and the loan period was 3 months.

In August 14, 2017, at the request of the lender, galactic life signed the "maximum guarantee contract". The contract agreed that galaxy life provided unlimited liability for the Galaxy Group's debts under the loan contract. After the failure of the galaxy group to repay the loan, there was a dispute between the two sides.

In November 13, 2018, Li Yu, Li Hongsu Galaxy Group, Galaxy biology and other loan dispute disputes, the Jiangxi Provincial Higher People's court made a first instance judgment, the judgment includes the galaxy group to repay Li Yu and Li Hong loan principal 138 million 419 thousand yuan and interest; Galaxy organisms in the RMB 300 million Yuan highest creditor's rights within the scope of joint and several liability.

On the Galactic side, the galaxy group and Galaxy Group appealed to the Supreme People's court in April 3, 2019, and the appellant did not pay the appeal fee in full within the time limit stipulated by the court because of external factors. The Supreme People's court made a second instance ruling in April 24th and ruled that the appeal should be withdrawn automatically.

In June 10, 2019, Galaxy bio filed a retrial application to the Supreme People's court, and accepted the application for retrial in July 29, 2019.

The plaintiff Li Hong and Li Yu applied to the local court of Jiangxi on the basis of the 300 million yuan guarantee responsibility of the galaxy life. In August 2019, the local court initiated the execution of some assets related procedures of the galaxy. In the early December 2019, the court's executive judges and evaluation agencies have been involved in the implementation of the galaxy bio communication.

The guarantee of Galaxy life was not approved by shareholders' meeting at the time. Only the chairman signed the company's guarantee. If the court enforce the assets of Galaxy bio listed companies, it will damage the interests of minority shareholders. " In the case of Galaxy biology, frankly speaking, the above guarantee problem is the cause of corporate governance confusion. Not long ago, the SFC also severely punished its main executives, and the pressure of performance was also great.

The creditors who lend to galaxy group seem a little "complicated". Galaxy Bio said that it has been found in a variety of ways, a person named WeChat GUI bin, repeatedly urged Yao Guping to borrow money, and Li Hong and Li Yu involved in many private lending disputes.

Through the Chinese referee network and the China executive information public network enquiry, Li Hong and Li Yu have at least 10 cases involving private lending disputes in recent years, and have heard and issued relevant legal documents at various levels of courts. The amount involved is nearly 200 million yuan.

"Violation guarantee" is no longer hidden?

In 2019, the galaxy biotic Daily reported that, up to now, the company failed to carry out internal examination and approval and related deliberation procedures. The external guarantee amount was about 1 billion 397 million yuan (excluding interest). At present, the above litigation matters have entered the proceedings. Although some cases have made a first instance judgment, the company has filed suit. Although some cases have been decided, the company has brought the case for retrial; other cases are still under trial.

In fact, Galaxy life and its subsidiaries secured many times for Galaxy Group. In November 25th, galactic life pointed out that in the notice issued by the Guangxi Regulatory Commission of the China Securities Regulatory Commission on the advance notice of administrative penalties, it was pointed out that, from July 2016 to March 2018, the galaxy and its subsidiaries totaled 15 times for external loans from related parties such as Galaxy Group, with a total guarantee amount of 1 billion 544 million 300 thousand yuan.

On the above matters, the Galactic life has not been disclosed in time, nor has it been disclosed in the 2016 annual report, 2017 semi annual report and annual report, and 2018 semi annual report. The Guangxi Supervision Bureau of the China Securities Regulatory Commission (CSRC) also proposed to order and correct the Galactic life because of its major lawsuits and incomplete information disclosure. It also imposed a warning penalty. At the same time, it also adopted a ban on the securities market for the actual controller and current chairman.

In an interview with the twenty-first Century economic report reporter, the galaxy life did not shy away from the "guarantee" of 300 million yuan for Galaxy Group in 2017. "At that time, the property of galaxy group was mortgaged, so the other side was lending, and the guarantee procedures of listed companies did not go down."

It is understood that in 2017, the galaxy group was mortgaged by the Beijing weapons tower, and an evaluation report obtained by the economic report reporters in twenty-first Century showed that the market value of Beijing ordnance building was assessed by market and the assessed value was 1 billion 115 million yuan at the end of the assessment date October 12, 2017.

Feng Yongqiang pointed out to the twenty-first Century economic report reporter that the guarantee provided by the Galaxy Group for the holding group had not been resolved by the general meeting of shareholders. It violated the sixteenth articles of the company law, the relevant provisions of the external guaranty of the listed company and the violation guarantee of the bylaws of the Galaxy bio company, which should not have legal effect on the Galactic life, and does not produce legal restrictions.

"The restrictions on the external guarantee activities of listed companies are directly derived from the sixteenth article of the company law, which can be understood that the guarantee of the listed companies must be decided by the board of directors or the general meeting of shareholders according to the statutory procedures according to the provisions of the articles of association. If the creditor of the secured creditor is bona fide, that is, if he does not know that the guarantee is more right and there is no fault, then the ultra vires guarantee is effective for the creditor. Most of the articles of association of listed companies leave the resolution right of external guarantee to shareholders' meeting. Therefore, it is generally necessary to examine the fact that creditors do not know whether there is any fault in the fact that a listed company constitutes an ultra vires guarantee. If there is any fault, the principle of ultra vires guarantee should be applied, namely, the guarantee is invalid. Feng Yongqiang further explained.

Feng Yongqiang pointed out that under the interpretation of the minutes, the probability of exemption from breach of guarantee by listed companies has increased greatly. This is also the reason why many listed companies no longer hide the "illegal guarantee" and even proactively announce it.

In the evening of November 29, 2019, ST announced that the company disclosed the notice on the invitation of the parties to the debt violation agreement to confirm the external guarantee and off balance sheet liabilities of the 600856.SH.

According to incomplete statistics, in the first half month of the release of the highest law, at least 29 listed companies issued a notice of violation guarantee, of which 15 were ST companies and 1 were delisting companies.

However, Feng Yongqiang also admitted that "minutes" is not a judicial interpretation, and can not be invoked as a basis for judgment. However, in the process of execution, courts generally try to adopt the criteria of "minutes". Up to now, Shengyun environmental protection, *ST Shengda, ST Tianbao and other listed companies have been sentenced to be exempt from liability through judicial proceedings.

 

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