正策关注｜股权争议解决中的对峙和博弈

博弈过程

The strategies

笔者针对Z某请求支付股权转让款的诉请，结合《股权转让协议》相关约定，拟定两种应对方案：一是以未满足交易前提为由对其诉请直接抗辩，二是以违约责任为由提起反诉，间接反击其诉请。

In response to Z’s claim, the author proposed dual solutions based on the equity transfer agreement: on the one hand, defend against the original claim by arguing that the transaction prerequisites were not met; on the other hand, file a counterclaim for breach of contract to challenge the original claim.

第一回合——积极应诉

Raising a defence

X公司接手经营目标公司后，发现原股东需要对原经营期间承担相应赔付责任。基于双方就交易事宜有约定前提要件，便以此作为X公司不应支付当期股权转让款的抗辩理由。

It was not until taking over the target company’s operations that company X discovered the former shareholder was liable for certain compensations during their tenure. As both parties had agreed on preconditions for the transaction, this new information could be used to argue that company X should not be required to pay the due share transfer instalment.

第二回合——提起反诉

Filing a counterclaim

基于协议设置了竞业限制条款及违约责任，结合Z某存在违反竞业限制的事实，笔者以Z某违反竞业限制义务为由提起反诉并向其主张违约金。

在股权交易中，对原股东设置竞业限制条款是常见的维护股权受让方及目标公司利益的方式。合理运用该条款可有力应对本案诉讼，并为现股东争取合法权益。对此，核心问题在于如何证明原股东违反竞业限制义务，结合竞业限制条款具体约定及类案，对相关要素拆分并梳理相应证据，以达到向法院证明Z某违反竞业限制约定的效果。

协议约定，股权转让方及其关联方不得以本人名义单独或参与设立新的与目标公司经营相同或相似业务或存在业务关联关系的经营实体，否则应支付相应违约金。该条款可拆分为三要素，分别为主体(股权转让方及其关联方)、行为(以本人名义单独或参与设立)与客体(与目标公司经营相同或相似业务或存在业务关联的经营实体)。在明确竞业行为成立要素对应证明内容后，如何取证以及呈现证据便尤为关键。

本案结合Z某的亲属关系、企业公示信息中职位及经营范围等相关信息，以Z某及其亲属、合作对象为核心，向外拓展罗列相关主体担任股东及高管的公司主体，并列明各公司主体经营范围且标注重叠部分，形成思维导图向法院予以明示，以达到证明Z某违反竞业限制条款的最终目的。

经过博弈，法院最终判决现股东支付四百余万元当期股权转让款，同时以前股东违反竞业限制条款为由判决其支付四百余万元高额违约金。

Based on the non-compete clause and liability for breach of contract set out in the agreement, in addition to claiming Z had violated the non-compete clause, the author filed a counterclaim against Z for breach of contract and sought liquidated damages.

In equity transactions, a non-compete clause is commonly exerted against the transferor to protect the interests of the transferee and the target company. Appropriate application of this clause could strengthen the current shareholder’s legal position in litigation and safeguard its rights and interests.

In this case, the key issue was how to prove the former shareholder’s breach of the non-compete obligation. This involved dissecting the details of the non-compete clause and similar cases, analysing key elements and outlining relevant evidence to demonstrate Z’s violation to the court.

The agreement stipulated that neither the equity transferor nor any of its affiliates should ever – in its own name, independently or jointly – establish any new entity that either operated the same or similar business as the target company or had business relations with the target company. In default, the violating party would be held liable for corresponding liquidated damages.

This clause consisted of three elements, namely: the subject (the equity transferor and its affiliates); the action (independently or jointly establishing under their own or another’s name); and the object (entities operating the same or similar business as the target company or having business relations with it).

Once these elements were clearly defined, gathering and presenting evidence became crucial. In this case, Z’s kinship, titles, business scope and other revealed corporate information were examined.

With the focus on Z, its relatives and business partners, the author identified companies where these individuals served as shareholders or senior executives. We specified each company’s business scope and their overlaps. A mind map was produced and presented to the court to demonstrate that Z had violated the non-compete clause.

Eventually, the court ruled the current shareholder should pay more than RMB4 million for the current equity transfer, and ordered the former shareholder to pay more than RMB4 million in liquidated damages for breaching the non-compete clause.

第三回合——保全战果

Consolidating

另基于Z某对外负有某合同项下应付债务，笔者根据前案进展情况伺机启动了向Z某追偿债务的另案，并通过另案将Z某在股权转让纠纷中对X公司所享有的股权转让款进行诉讼保全查封。该保全措施的作用在于使Z某无法收到股权转让款的同时，还需另行以其自有财产向Z公司支付违约金，最终使得前股东Z某倒欠现股东二百余万元钱款。

Considering Z’s debt payable under another contract, the author filed a separate claim to recover the debt from Z based on the original claim’s progress. Through this separate claim, a litigation preservation order was obtained to freeze the equity transfer payment owed to Z by X, which prevented the transferor from receiving the equity transfer payment and urged Z to pay the liquidated damages to X at its own expense. Ultimately, Z ended up owing the current shareholder more than RMB2 million.

Conclusion

股权是构成公司的根本性要素，如何充分运用多元的法律武器来维护股东的合法权益，是涉猎股权争议纠纷的律师及企业法务所面临的共同问题。

从本案引发思考，无论是专业律师还是企业法务，均应通晓公司经营管理及商业逻辑，在面临诉讼纠纷时，方能明晰对手弱点，精准出击，并运用联系的观点分析问题，以推动个案间相互发挥良性作用，运用大局观实质性把控法律风险，共同完善与促进公司制度的建设与发展，为公司创造价值。

Equity is a fundamental element of a company. A common challenge confronting lawyers and in-house counsel in equity disputes is to adopt diverse legal tools to protect shareholders’ legitimate rights.

Reflecting on this case, the author recommends that lawyers and in-house counsel acquire a broad understanding of business management and commercial logic. This will enable them to identify an opponent’s weaknesses and hit the mark during litigation.

It also helps achieve positive interaction between individual cases by analysing issues from a holistic perspective, effectively managing legal risks and contributing to the advancement of corporate systems. Ultimately, this creates value for the company.