About the author: Zhang Min, lawyer of Anhui Pinhan Law Firm, Anhui Radio and Television and Hefei Radio and Television Specially invited legal commentator, special mediator of Hefei Radio and Television Luzhou Peacemaker Program. National legal consultation, WeChat ID zm13612926021.
In divorce cases, the issue of equity division in the joint property of husband and wife is an issue to be discussed and discussed. This article summarizes some of the issues as follows:
1. One of the husband and wife contributes with his pre-marital property and he personally holds the company's equity
"Marriage Law Interpretation II" Article 11 Paragraph 1 stipulates that the income obtained by one party with personal property investment belongs to the common property. Article 5 of the Interpretation III of the Marriage Law stipulates that the fruits and natural appreciation of the marital property after marriage belong to the individual property, and the income generated by other means belongs to the common property.
The Supreme People's Court held that if one party used personal property to purchase stock funds before marriage, if the transaction was carried out during the marriage, the proceeds should be recognized as the joint property of the husband and wife , if did not carry out the operation of buying and selling, the book income at the time of divorce is more likely to be regarded as natural appreciation; one party used personal property to buy lottery ticketsThe income obtained, if the parties do not agree in advance, the income shall be recognized as common property of husband and wife; the interest obtained after marriage by one party's property used for loan is statutory fruit b>, should be recognized as the personal property of one party when divorced.
As for one side of the husband and wife to invest in shares with their pre-marital property, the other side thinks that there is a premium in the shareholding when they divorce, and asks to distribute the premium, I think:
First, if it is the equity of a limited company or an unlisted joint-stock company, since the distribution of earnings of these two companies requires the shareholders' meeting or the shareholders' meeting to make a resolution on earnings distribution, if there is no such If the decision is made, then holding equity only means that there is a right to request for distribution of earnings. The fact of the so-called "premium" cannot be confirmed. Therefore, the request for distribution of premium for this reason should not be supported.
Second, for the equity of listed company stocks, the appreciation of equity in the normal trading account should be regarded as natural appreciation, but if the increase in stock price is due to many artificial changes after marriage. operation, based on human factors and capital operation reasons, this part of the appreciation should be recognized as the joint property of the husband and wife, and should be divided.
2. Contribution of joint property of husband and wife, but only nominally held by one spouse
(1) The equities held belong to the equities of a listed joint stock limited company
Because of the existence of a public trading market, it can be assessed The price can also be freely transferred. Therefore, the court can directly divide the equity according to the request of the parties.
(2) The equities held are those of unlisted joint-stock companies
Because this kind of equity is notThere is an open trading market, and the corresponding information of the value cannot be obtained from the open market, but as the equity of a joint stock limited company, it can be freely transferred and does not involve the issue of the preemptive right of other shareholders. Therefore, according to the Second Judicial Interpretation of the Marriage Law. Article 15 stipulates that if the husband and wife divide the shares, bonds, investment fund shares and other negotiable securities in the common property and the shares of the unlisted joint stock limited company, if the negotiation fails or it is difficult to distribute according to the market price, the people's court shall. It can be distributed proportionally according to the quantity.
(3) The shares held are the equity of limited liability company
If the husband and wife can reach an agreement through negotiation:
Article 16 of the Judicial Interpretation II of the Marriage Law stipulates that the people's court hears a divorce case, which involves the division of the joint property of the husband and wife. The capital contribution of one party in the limited liability company in the name of one party and the other party is not a shareholder of the company shall be dealt with separately according to the following circumstances:
1. >Transfer part or all of the capital contribution to the shareholder's spouse, if more than half of the shareholders agree, other shareholders expressly waive the right of first refusal, the shareholder's spouse can become the company's shareholder;
2. After the husband and wife have agreed through negotiation on matters such as the transfer share of the capital contribution and the transfer price, more than half of the shareholders do not agree to the transfer, but are willing to purchase the project at the same price. If the capital contribution amount is exceeded, the people's court may divide the property obtained from the transfer of capital contribution. If more than half of the shareholders do not agree to the transfer, and are unwilling to purchase the capital contribution at the same price, it is deemed that they agree to the transfer, and the spouse of the shareholder can become a shareholder of the company.
The evidence used to prove the consent of more than half of the shareholders stipulated in the preceding paragraph can be a resolution of the shareholders' meeting or a written statement of shareholders obtained by the parties through other legal channels Material.
The above negotiated situations in the lawsuit specifically include: First, one of the husband and wife wants equity, and the other If one party has no objection to the equity consideration for compensation proposed by the other party or agrees to evaluate the equity value because the equity value is unclear, if the party obtaining the equity is originally the nominal shareholder, then there is no change and priority issues. If the other party obtains the equity, the above-mentioned provisions shall apply. Only after the other shareholders exercise the right of first refusal can they formally obtain the equity; Second, both spouses do not want the equity and agree to transfer the equity to other shareholders or If the third party has no objection to the issue of the equity split ratio, it also means that it is agreed through consultation that the second paragraph of the above provisions can be applied, and the equity transfer funds can be split together; Third, If you want equity, you will bid, and the one with the highest price will get the equity.
If the couple does not agree:
Inconsistency usually refers to two situations:
1. Both parties want equity, no matter how high the equity compensation is, and if the bidding fails, the judge will decide the ownership of the equity. I think the court can decide The current share holder acquires the shares and compensates the other party.
2. If the plaintiff requests the division of equity and is unwilling to pay the compensation consideration, please refer to Civil Ruling on Retrial Review of Property Disputes and Trial Supervision after Divorce of Liu Yi and Wang Junqing [Supreme People's Court (2018) Supreme Court Minshen No. 796] stipulates that the court may decide to dismiss the prosecution.
(4) One of the spouses is a one-person limited company or a sole proprietorship shareholder
Article 18 of the Second Judicial Interpretation of the Marriage Law stipulates that if one party claims to operate the enterprise, the assets of the enterprise shall be After the evaluation, the one party that acquired the enterprise shall give the other party corresponding compensation; both parties claim to operate the enterprise.If both parties are unwilling to operate the enterprise, the party that acquires the enterprise shall give the other party corresponding compensation on the basis of bidding between the two parties; if both parties are unwilling to operate the enterprise, it shall be handled in accordance with the "Law of the People's Republic of China on Sole Proprietorship Enterprises" and other relevant regulations.
One-person limited company:
For reference, please refer to Article 18 of the Second Judicial Interpretation of the Marriage Law. Provisions: If one party claims to operate the enterprise, after evaluating the assets of the enterprise, the party that acquires the enterprise shall give the other party corresponding compensation; if both parties claim to operate the enterprise, the party that acquires the enterprise shall give the other party corresponding compensation on the basis of competitive bidding. If both parties are unwilling to operate the enterprise, the company shall be dissolved in accordance with the provisions of the Company Law, and the residual value shall be distributed after the liquidation of the company.
(5) Contribution of one spouse to the partnership enterprise
"Marriage Law Judicial Interpretation II" Article 17 of the "People's Court" stipulates that when the people's court hears a divorce case involving the division of the joint property of the husband and wife, the capital contribution in the partnership enterprise in the name of one of the parties, and the other party is not a partner of the enterprise, when the husband and wife reach an agreement, the property in the partnership enterprise shall be divided. When all or part of the share is transferred to the other party, it shall be dealt with according to the following circumstances: if the other partners unanimously agree, the spouse shall obtain the status of a partner according to law; if the other partners do not agree to the transfer and exercise the priority of assignment under the same conditions, they may The property obtained from the transfer shall be divided; other partners do not agree to the transfer and do not exercise the right of first refusal, but agree that the partner withdraws from the partnership or returns part of the property share, the returned property may be divided If the other partners neither agree to the transfer nor exercise the right of priority, nor agree with the partner to withdraw from the partnership or return part of the property share, it is deemed that all the partners agree to the transfer, and the spouse obtains the status of a partner in accordance with the law.
(6) Emphasis: The shareholder of a limited company is only a division between husband and wife
If the limited company has only two shareholders, husband and wife, it can be handled with reference to the idea of splitting a one-person company: 1. If one party claims to operate the company, after the evaluation of the company's assets, the party who acquires the shares will pay the consideration, and the other party will transfer the shares and cooperate with the completion of the company. Change to a one-person limited company; 2. Both parties request to operate the company, then conduct bidding, the higher bidder wins the company, the other party compensates, and cooperates with the procedures for equity transfer and the registration of the company’s change to a one-person company; 3. Neither party Those who are willing to operate will dissolve the company and distribute the residual value.