Delta Law Expat Services Desk ｜ Supreme People's Court 最高人民法院, first mediation batch released 2025-07-11
- Case name 案例名称：新加坡亚洲某投资公司与上海某甲股份公司、上海某乙有限合伙等股权转让纠纷案 (equity transfer dispute between a Singapore investment company and a Shanghai joint stock company, a Shanghai limited partnership and others)
- Case number 案例编号：最高人民法院《首批涉外商事海事调解典型案例》案例六，2025 年 7 月 11 日发布
- Effective judgment 生效裁判：官方发布文本未载明案号；官方载明受理法院为上海市第一中级人民法院，以调解结案
- Keywords 关键词：官方发布文本未单设关键词栏；官方案例标题载明「引入第三方动态调解 依法保护外商投资利益」
- Provisions cited officially 官方载明的相关法条：官方发布文本未载明条号
- Why this case 为什么选它：『五年前投的钱，协议写着不上市就回购，现在期限到了，对方说没钱。』——这是外资做少数股权投资最常见的收尾困境，标的、地域、投资人身份三项都对得上上海。
1. The facts as officially published 基本案情
上海某甲股份公司系上海知名的“互联网+”创新企业。2018年12月7日，新加坡亚洲某投资公司与上海某甲股份公司及其控股股东郭某等人签订股权转让及回购协议，约定新加坡亚洲某投资公司出资500万美元受让上海某甲股份公司部分股份，上海某甲股份公司应于2023年12月31日前向证券监管机构申请上市。各方约定，如未能按期上市，新加坡亚洲某投资公司有权要求上海某甲股份公司和郭某等人回购其股份。因上海某甲股份公司届期未达到上市条件，新加坡亚洲某投资公司将上海某甲股份公司及郭某等人诉至上海市第一中级人民法院（以下简称上海一中院），要求支付合同约定的回购款。
On 2018-12-07 a Singapore investment company signed an equity transfer and repurchase agreement with a Shanghai joint stock company and its controlling shareholder and others, under which the investor paid USD 5,000,000 for part of the company's shares and the company was to apply to the securities regulator for listing by 2023-12-31. The parties agreed that if listing did not occur by that date, the investor could require the company and the controlling shareholder and others to repurchase its shares. The company did not meet the listing conditions by the deadline and the investor sued in the Shanghai First Intermediate People's Court for the agreed repurchase price.
Unofficial translation; the Chinese text as officially published prevails.
The structure will be familiar to any foreign minority investor in a Chinese company: money in at a valuation, a listing milestone, and a repurchase right if the milestone is missed, with the company and the controlling shareholder both named as obligors. What makes the structure fragile is that the milestone and the obligor's ability to pay tend to fail together. A company that could not list is usually a company that cannot fund a repurchase.
One feature of the target is worth noting for the analysis that follows: the published facts describe it as a joint stock company. That matters, because the statutory constraints on a company acquiring its own shares are set out in the joint stock company chapter of the current company legislation and are stricter than most repurchase agreements assume.
2. The official holding 裁判要旨（官方原文）
本案系一起典型的外商投资股权纠纷。上海一中院先行与双方当事人电话沟通、进行摸底，上海某甲股份公司及郭某等人对已符合回购条件不持异议，但均表示欠缺全额付款的能力；新加坡亚洲某投资公司则表示已作了五年股东，不希望走到收不回投资款、公司也无法经营的局面。合议庭从实质性化解纠纷的角度出发，引入具有资金实力的第三方，形成既能够实现新加坡亚洲某投资公司投资利益回收、又保障上海某甲股份公司继续发展的“最优解”。
The panel first spoke to both sides by telephone. The company and the controlling shareholder did not dispute that the repurchase conditions were satisfied but said they could not pay in full; the investor, having been a shareholder for five years, said it did not want an outcome in which neither the investment was recovered nor the business survived. The panel therefore brought in a third party with funds, aiming at a solution that returned the investor's money and kept the company operating.
Unofficial translation; the Chinese text as officially published prevails.
最终，郭某说服了其持股的另一家优质企业上海某乙有限合伙承担回购义务。合议庭通知上海某乙有限合伙作为被告进入诉讼程序，主持投资方、公司、控股股东、第三方投资人共计四方签订了新加坡亚洲某投资公司减免付款、上海某乙有限合伙回购股份和分期付款、上海某甲股份公司和郭某承担连带责任的调解协议。结案后，各方均已按照调解协议自动履行完毕。
外国投资者在中国进行投资时，往往会采用购买股权并签订股权回购协议的形式以保障其投资利益。但是，当股权回购方因缺乏足够资金未能履行回购义务，双方合作往往陷入僵局，既不利于外国投资者的投资利益，也不利于被投资企业的长远发展。
The controlling shareholder, Guo, persuaded another company in which Guo held an interest, a Shanghai limited partnership, to take on the repurchase obligation. The panel brought that partnership into the proceedings as a defendant and presided over a four-party settlement under which the investor reduced the sum payable, the partnership repurchased the shares and paid by instalments, and the company and the controlling shareholder were jointly and severally liable. All parties performed voluntarily after the case closed. The published note observes that foreign investors commonly protect their investment by buying equity under a repurchase agreement, and that where the repurchase obligor lacks funds the relationship reaches deadlock, which serves neither the investor nor the company.
Unofficial translation; the Chinese text as officially published prevails.
The mechanics of the settlement are the useful part. A new obligor was found; that obligor was formally joined as a defendant; the price was reduced; payment was staged; and the original obligors remained jointly and severally liable. Each of those four elements is something an investor can ask for in negotiation, and the third and fourth are what make the first two safe.
Two planning consequences follow, and both belong at the drafting stage rather than at the enforcement stage. The first is to name a payer who can actually pay. A repurchase promise given by the target company together with a founder whose wealth is concentrated in that same company is a promise backed by the fortunes that produced the missed milestone in the first place. Where the sponsor controls other businesses, naming one of them as a co-obligor at the outset costs nothing while relations are good and is worth a great deal later.
The second is to write the exit route into the agreement instead of leaving it to be discovered. If the intended route is a capital reduction by the target, say so and attach the timetable. If the intended route is a transfer to an incoming investor, say what information the company must give a prospective buyer and by when. If the intended route is payment by the controlling shareholder, take security over identifiable assets rather than relying on a personal covenant. Each of these is a paragraph in a term sheet; none of them is available once the deadline has passed and the counterparty has no money.
3. Practical guidance 律师实务提示
Know what the company itself is allowed to do. 《中华人民共和国公司法》第一百六十二条 states that a company may not acquire its own shares except in six listed situations, of which the one that fits an investor exit is a reduction of registered capital. That route is not a signature away: 《中华人民共和国公司法》第二百二十四条 requires a balance sheet and asset list, notice to creditors within ten days of the shareholders' resolution and publication within thirty days, with creditors then entitled to demand payment or security within thirty days of notice or forty-five days of publication. Build that calendar into the agreement rather than discovering it after default.
Do not rely on the company to fund someone else's purchase. 《中华人民共和国公司法》第一百六十三条 prohibits a company from giving a gift, loan, security or other financial assistance for another party's acquisition of its own or its parent's shares, subject to an employee share scheme carve-out and a resolution-based allowance capped at ten per cent of issued share capital. A structure in which the target stands as security for the incoming buyer's instalments needs to be tested against that ceiling.
Make the new obligor a party. Where a third party takes over the payment, a side letter is not enough — the official release records that in 本案 the panel 「通知上海某乙有限合伙作为被告进入诉讼程序」 before the four-party settlement was signed. Keep the original obligors on the hook as well; the settlement recorded here left the company and the controlling shareholder jointly and severally liable.
Fix the trigger evidence early. What made this a payment problem rather than a liability problem was that the condition was not in dispute — the official release records that 该案 the obligors 「对已符合回购条件不持异议」. Keep the listing application record, the regulator correspondence and the board minutes that show the milestone was missed.
4. What this means in your situation 把要点落到你的处境
第一百六十三条 公司不得为他人取得本公司或者其母公司的股份提供赠与、借款、担保以及其他财务资助，公司实施员工持股计划的除外。
为公司利益，经股东会决议，或者董事会按照公司章程或者股东会的授权作出决议，公司可以为他人取得本公司或者其母公司的股份提供财务资助，但财务资助的累计总额不得超过已发行股本总额的百分之十。董事会作出决议应当经全体董事的三分之二以上通过。
Article 163: a company may not provide a gift, loan, security or other financial assistance to another party for the acquisition of shares in the company or its parent, except under an employee share scheme. For the benefit of the company, and on a shareholders' resolution or a board resolution made under the articles or a shareholders' authorisation, such assistance may be provided, but the cumulative total may not exceed ten per cent of the issued share capital, and a board resolution requires the approval of two thirds of all directors.
Unofficial translation; the Chinese text as officially published prevails.
| What the official release holds | What it controls procedurally | What it means for you |
|---|---|---|
| The repurchase conditions were not disputed | Whether the fight is about liability or about money | Document the trigger so the dispute narrows to payment |
| A funded third party was brought in | Who actually pays | Identify candidate buyers before you sue, not after |
| That third party was joined as a defendant | Whether the settlement binds it | A side letter with a non-party is not an enforceable outcome |
| The original obligors stayed jointly and severally liable | What remains if the new payer defaults | Do not release the old obligors in exchange for a promise |
- Misconception: a repurchase clause against the target company is as good as a repurchase clause against a shareholder. In fact: 《中华人民共和国公司法》第一百六十二条 limits a company's acquisition of its own shares to six listed situations; the official release does not address the point, and this page raises it only as a current-rule caution.
- Misconception: if the obligor has no cash, the investment is lost. In fact: the official release records that in 本案 the panel 「引入具有资金实力的第三方」 and the matter closed with performance.
- Misconception: taking a discount means giving up security. In fact: the official release records a settlement in 该案 under which 「上海某甲股份公司和郭某承担连带责任」 alongside the reduced instalment payments.
- Misconception: a settlement with a newcomer can be papered outside the case. In fact: the official release records that 本案 the panel first 「通知上海某乙有限合伙作为被告进入诉讼程序」.
- The Chinese rules that apply to you
- Published cases involving foreign nationals
- Research notes for foreign nationals in China
- Selling a Chinese Company You Never Paid Up: Two Italian Shareholders and the Price They Could Still Collect (forthcoming in this batch)
- Unwinding a Cross-Border Cross-Shareholding: What a Korean Investor Got Out of a Shareholder Inspection Suit (forthcoming in this batch)
- ① 最高人民法院《首批涉外商事海事调解典型案例》案例六《新加坡亚洲某投资公司与上海某甲股份公司、上海某乙有限合伙等股权转让纠纷案》，最高人民法院新闻局 2025 年 7 月 11 日发布，官方页 https://www.court.gov.cn/zixun/xiangqing/470481.html 。
- ② 生效裁判：官方发布文本未载明案号。
- ③ 本页引用：《中华人民共和国公司法》，2023 年 12 月 29 日第十四届全国人民代表大会常务委员会第七次会议第二次修订，自 2024 年 7 月 1 日起施行，现行有效，第一百六十二条、第一百六十三条、第二百二十四条，条文原文照录中国人大网官方页 http://www.npc.gov.cn/npc/c2/c30834/202312/t20231229_433999.html 。
- Status and timing note 效力与时点提示：本案为最高人民法院发布的调解典型案例，供审判参考，不具有指导性案例的参照效力；in English, it is published for reference and does not carry the effect of a guiding case. 官方发布文本未载明所适用的条号；本页第三节、第四节所引《中华人民共和国公司法》三条系官方发布文本未涉及的现行规则，仅作现行规则与路径提示，不是本案的裁判依据。官方发布文本载明协议签订于 2018 年、上市期限为 2023 年 12 月 31 日，未载明起诉与结案日期；所引为现行公司法条文，本案审理时适用的公司法版本以裁判文书为准。程序性事项 subject to the current published requirements of the accepting authority。
- 本页案例引自官方公开发布，非本所承办案件展示，不构成对具体个案的法律意见。This case is drawn from an official public release and is not a showcase of matters handled by this firm, and does not constitute legal advice on any specific case.
This article is general legal research and does not constitute legal advice; by law, a law firm may not guarantee case outcomes. 本文为一般性法律研究，不构成法律意见；依据法律规定，律所不得承诺办案结果。
