股权纠纷的司法应对——鲁南制药股权之争

Judicial Response to Stock Equity Disputes——Around Lunan Pharmaceutical Stock Equity Dispute

鲁南制药股权纠纷很典型。上世纪90年代,中国对有境外投资者的国内企业提供税收优惠。鲁南制药为享受税收优惠,由境外的鲁信公司持股25.7%股份。后鲁信公司将此股份转让给凯伦美国公司。凯伦美国公司通过新设公司和信托方法对此股份进行数次调整。此25.7%股份发生争议,并引起广泛关注。该股权纠纷争议反映出来的三方面问题值得深入思考:其一,鲁南制药股权纠纷的焦点是股权归属问题;其二,股权纠纷直接关系到公司控制权的归属,进而影响公司治理结构;其三,本案股权纠纷反映了海外信托存在的风险,该案中信托的整个流程和结构有缺陷,对受托人约束机制不完善。鲁南制药从历史上看脱胎于一家国有企业,因此其股权纠纷是中国改革开放过程中我国企业成长的一个典型缩影,鲁南制药股权和信托设计中存在的潜在风险对我国很多企业都具有警示意义。

The Lunan dispute is typical.In the 1990s,China offered tax breaks to domestic companies with foreign investors.In order to enjoy tax benefits,Lunan Pharmaceutical is held 25.7%by SITIC INC.The shares were then transferred to Kunlun US.,which had made several adjustments to its shares through new companies and trusts.The 25.7%stake was disputed and attracted wide attention.The three issues reflected in the equity dispute are worthy of in-depth consideration.First,the focus of the equity dispute of Lunan Pharmaceutical is the ownership of equity,which should be decided by subjects of investment.Secondly,this equity dispute is directly related to the ownership of the company's control rights,whereby the corporate governance structure.Thirdly,the Luonan Pharmaceutical equity dispute reflects the risks of overseas trusts.The whole process and establishment structure of the trust in this case are defective,and the binding mechanism of the trustee is not perfect.Historically,Lunan Pharmaceutical was born out of a stateowned enterprise,therefore its equity dispute is a typical epitome of the growth of Chinese enterprises in the process of China's reform and opening up.The potential risks in the equity and trust design of Lunan Pharmaceutical serve as a warning for many Chinese enterprises.