In practice, the employee is arranged to serve as the company's legal representative during the period of employment and after leaving the company on various pretexts to delay, refused to handle the legal representative of the change procedures is not uncommon. This situation for the titular company's legal representative of the employees, bear a great unknown legal risk. In the case of self-consultation without results, timely litigation to remove the legal representative registration information, is the necessary way to protect their legal rights. Cai Yu lawyer on behalf of the plaintiff filed a request to change the company's registration in order to clean up the legal representative of the registration information of a series of cases, recently in Shanghai, nanjing, suzhou, six courts have won the judgment, to protect the client's legitimate rights and interests.

I. Basic information of the case

The Plaintiff was employed by Company A in 2018 by way of a job search. During the period of employment, Company A, due to the company's business needs, arranged for the Plaintiff to be registered in the business sector as the legal representative of the Defendants, Shanghai B Company, Nanjing C Company, Nanjing D Company and Suzhou E Company, as well as the person in charge of Shanghai B Company's Huangpu Branch and Shanghai B Company's Minhang Branch. All of the above companies are affiliates of an investment group company.2022 In 2022, the plaintiff went through the separation procedures and resigned from all the plaintiff's positions in the above companies, and Company A issued a Certificate of Separation confirming the plaintiff's separation from the company. On the same day, Company B, C, D, E and each branch of Company B jointly issued a Letter of Exemption, confirming that the Plaintiff had left the company and promising that from the date of the Plaintiff's departure from the company in 2022 to the completion of the procedures for the change of the legal person of the said company, any acts that occurred in the company had nothing to do with the Plaintiff, and that the Plaintiff would not be held responsible for any legal liabilities. After leaving the company, the plaintiff through his own personal repeated communication and entrusted the lawyer to the defendant to send a letter of lawyers, etc., requesting the defendant to remove the plaintiff in the company as legal representative or person in charge of the industrial and commercial registration. However, the defendant always excuse delay, to the plaintiff decided to sue for more than two years has not yet for change registration formalities. Cai Yu lawyers on behalf of the plaintiff filed a lawsuit in six courts, requesting the court to judge the defendant to eliminate the plaintiff as the legal representative or person in charge of the company's business registration. Six courts have ruled in favor of the plaintiff's request.

Second, the lawyer litigation strategy

In view of this case commissioned when the new “company law” began to implement soon, and the court in the past, many do not support similar circumstances of the plaintiff's request for judgment. Cai Yu lawyers accept the commission, decided to find the latest legal provisions, combing litigation evidence, retrieve the court authority case law three aspects of agency work.

(A) the revised new “company law” article 10 added paragraph 2, 3, provides that "as a legal representative of the director or manager resignation, deemed to resign at the same time as the legal representative. Resignation of the legal representative, the company shall, within thirty days from the date of resignation of the legal representative to determine the new legal representative." The above new provisions provide the legal basis for the prosecution of this case. After the plaintiff's departure, the company is obliged to determine the new legal representative in a timely manner.

(ii) Sorting out relevant materials as evidence for prosecution. Require the plaintiff to provide labor contract, separation certificate, exemption letter, social security vouchers, prove that the plaintiff is hired through the employment of company A, as the company's legal representative is also purely based on the company's work arrangements, the plaintiff for the separation procedures and the company has no substantial interest in the above company. Cai Yu lawyers access to the defendant company and related companies as evidence of the industrial and commercial records, confirmed that the plaintiff is not the defendant company and related companies of the shareholders, investors, not the actual controller, the defendant company is actually controlled by an investment group company. In addition also provides the plaintiff and the original company leaders, colleagues of wechat chat records, lawyers, mail vouchers and other evidence, confirms that the plaintiff has exhausted the internal remedies of corporate governance, this case can only be decided by the court to remove the legal representative of the industrial and commercial registration.

(C) Cai Yu lawyers through the “people's court case library”, collect and this case similar circumstances to support the plaintiff's claims into the reference case, as the case of subsidiary materials, for the contractor judge for reference. By providing the judge with the case precedents, from the side to strengthen the reasonableness of our claims, and strive for favorable judgments.

The main points of the court's decision

The court ruled that: the change of legal representative and the removal of registration does not necessarily affect the interests of the company's creditors, the legal representative has exhausted the internal remedies of corporate governance, and the company has not made a resolution or decision on re-election within a reasonable period of time, the people's court shall rule in favor of the director's withdrawal from the company's lawsuit, for the following reasons:

First, Article 10 of the Company Law of the People's Republic of China provides that the legal representative of a company shall be a director or manager who executes the affairs of the company on behalf of the company in accordance with the provisions of the articles of association of the company. If a director or manager who serves as the legal representative resigns, he or she is deemed to have resigned as the legal representative at the same time. If the legal representative resigns, the company shall determine a new legal representative within thirty days from the date of resignation of the legal representative. Article 70 of the Company Law of the People's Republic of China provides that the term of office of a director shall be specified in the articles of association of the company, but the term of office for each term shall not exceed three years. A director's term of office expires, and he or she may be re-elected for a second consecutive term. If a director is not re-elected in time for the expiration of his/her term of office, or if a director resigns during his/her term of office, resulting in less than a quorum of the Board of Directors, the original director shall still fulfill his/her duties as a director in accordance with the provisions of laws, administrative regulations and the Articles of Association before the re-elected director assumes office. The resignation of a director shall be notified to the company in writing, and the resignation shall take effect on the date of receipt of the notification by the company, but the director shall continue to perform his duties if the circumstances specified in the preceding paragraph exist. Visible, the legal representative entrusted by the company to perform their duties, the legal representative has the right to terminate its relationship with the company's contract of entrustment.

Secondly, the legal representative of a limited liability company shall have a substantial interest association with the company, which is the prerequisite and origin of the legal representative of the company, and a natural person without interest association shall continue to act as the legal representative of the company which will be contrary to the original intention and intent of the legislation, and may harm the company, the creditors of the company, and the interests of the registered legal representative.

Third, from the perspective of protecting the legitimate rights and interests of natural persons, the legal representative to the company to resign from the legal representative, and the legal representative can not make a resolution through the company's self-governance channels, the company for a long time did not start the change of the legal representative procedures, should protect the legal rights and interests of the legal representative as an ordinary citizen.

In this case, the plaintiff is not the defendant's shareholders, there is no evidence that the plaintiff for the defendant's actual control or with the defendant's shareholders, the plaintiff has been from the defendant's affiliates company A, and the defendant issued a “letter of exemption” to confirm the plaintiff's departure, the plaintiff is unable to prompt the defendant to change the election of the legal representative and many times to urge the defendant to change the resolution of the legal representative, and the defendant failed to change the resolution of the legal representative within a reasonable period of time, the plaintiff has exhausted the internal governance of corporate governance. Therefore, the Defendant should go to the Market Supervision Bureau to register the removal of the Plaintiff as the company's legal representative.

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