Exclusive

Many details of the foggy "Huachangda 200 million yuan loan dispute case" were exclusively exposed by China Business News, which aroused widespread concern in society.

A few days ago, CSI Small and Medium Investor Service Center Co., Ltd. (hereinafter referred to as "CSI Investment Service Center") directly managed by China Securities Regulatory Commission publicly voiced: "Support Huachangda to fully safeguard the legitimate rights and interests of listed companies and investors through legal means." In the view of CSI Investment Service Center, the focus of the case is whether Yan Hua, the former actual controller and chairman of Huachangda (300278). SZ), borrowing 200 million yuan from Wuhan Guochuang Capital Investment Co., Ltd. (hereinafter referred to as "Guochuang Capital") under the guise of a listed company, is it necessary for the listed company to repay it? If the seal stamped on the loan contract is forged by Yan Hua, does its loan behavior constitute an agency by estoppel?

As many loan details surfaced, the problem became more concentrated: why did Yan Hua, who lives abroad, suddenly reveal the details of his private seal? Is the RMB 4,000,000.00 Yuan that Yan Hua personally put into the corporate account of Tianfeng Tianying Investment Co., Ltd. (hereinafter referred to as "Tianfeng Tianying") a "benefit fee" for the relevant personnel of Guochuang Capital? What is the response of Guochuang Capital to Yan Hua and Hua Changda? Who should repay this huge loan?

In order to further clarify the above questions, the reporter of China Business News re-investigated the loan process and related details, and obtained exclusive responses from Guochuang Capital and Tianfeng Tianying, as well as core evidence such as loan transfer records. According to the transfer voucher held by the reporter, on July 25th, 2006, 2065438, Guochuang Capital transferred 200 million yuan to Shiyan Ada Sub-branch of China Industrial and Commercial Bank through the business department of Hankou Bank. The payee's account name was Huachangda, and the remark was "Cash Platform Loan".

(The transfer voucher is provided by Guochuang Capital)

A loan of 200 million yuan was credited to Huachangda account.

Guochuang Building, No.32 Tangjiadun Road, Jianghan District, Wuhan City, Hubei Province, is the seat of Wuhan State-owned Assets Supervision and Administration Commission, and Guochuang Capital also works here. Huachangda issued a paper announcement on the "200 million yuan loan dispute case", pointing to Guochuang Capital's illegal lending and publicly claiming that it had suffered "serious unjust, false and wrong cases". With the fermentation of the event, it is becoming another "storm eye" that public opinion pays attention to.

(Guo Chuang Capital Office Photography Our reporter Zhang)

On August 2nd, in the conference room of Guochuang Capital, the principal responsible person and legal personnel of the company accepted an exclusive interview with our reporter and responded to relevant controversial issues. The relevant person in charge of Guochuang Capital told this reporter that Huachangda applied for the loan from Guochuang Capital, and Guochuang Capital agreed to provide the loan based on Huachangda's credit status, and according to the principle of the People's Bank of China that "whoever puts money into his account is under his control", Guochuang Capital will directly pay the loan funds to Huachangda's account. According to the court's judgment, Huachangda should bear the responsibility of repayment.

Guochuang Capital said that according to the effective judgments of Wuhan Intermediate People's Court and Hubei Higher People's Court, as well as the Notice of Enforcement and Order of Property Declaration issued by Wuhan Intermediate People's Court (20 19 E 0 1 ZhiNo. 1854), Hua Changda is now the executor. If the company fails to fulfill the payment obligations determined by the effective judgment within the prescribed time limit, it will be included in the person who has lost his trust.

The transfer voucher provided by Guochuang Capital also shows that from 2065438 to July 25th, 2006, Guochuang Capital transferred 200 million yuan to Shiyan Ada Branch of China Industrial and Commercial Bank through the business department of Hankou Bank. The payee's account name is Huachangda, and the remark is "Cash Platform Loan".

Both Hua Changda and Yan Hua said that the loan was a personal loan of Yan Hua. After the funds entered Huachangda's account, the loan funds of 200 million yuan were transferred to Yanhua's personal account in batches. In the personal statement signed by 1 1 in June this year, Yan Hua also admitted that the loan was his personal loan, and said: "At that time, during the negotiation process, I made it clear to the middleman and the leaders of Guochuang Capital that it was my personal loan. After Guochuang Capital paid 200 million yuan to Huachangda account, I told Huachangda that this was my personal loan, and I asked the listed company to transfer it to me personally. "

Regarding the content of Yan Hua's personal statement, the relevant person in charge of Guochuang Capital told the reporter that the content of his personal statement has not been investigated and determined by the judicial authorities, which is his subjective opinion and will not be accepted. According to Hua Changda, the company has reported Yan Hua's alleged crime to the public security organs. Yan Hua is now a suspect, and his personal statement is full of doubts.

"Yan Hua's debt dispute has nothing to do with our company. Our company has never signed a loan contract and supplementary agreement with Guochuang Capital, never borrowed from Guochuang Capital, and never had the intention to borrow from Guochuang Capital. " Huachangda said in the previous announcement that the relevant stakeholders of Guochuang Capital were suspected of serious violations of the law and the company had reported the case to the relevant departments.

The person in charge of the legal department of Huachangda told the reporter that the company had a related creditor-debtor relationship with Yanhua since 20 15, and the balance of the company's debt payable to Yanhua at the end of the year was more than 300 million yuan. "After that, Yan Hua borrowed 200 million yuan from the company. He told the company that he entrusted Guochuang Capital to remit 200 million yuan. Together with this 200 million yuan, the company borrowed more than 500 million yuan from Yanhua. The company recorded 200 million yuan (transferred from Guochuang Capital) as a loan from individual shareholders to the company. After that, Yanhua asked the company to repay, and the company has paid off all the loans to Yanhua. "

"The loan balance of the company and shareholders is truthfully disclosed in the annual report and semi-annual report. For example, by the end of June 2007, the company's debt to Yan Hua was about 28 million yuan. 2065438+On June 30th and July 4th, 2007, the company repaid Yan Hua RMB 5 million and RMB 22.99 million respectively. After auditing, it was confirmed that the balance of related debts between the company and Yanhua was zero. " The person in charge said.

4 million yuan is a "financial consultant fee"?

Whether Guochuang Capital is qualified to issue a loan of 200 million yuan to Huachangda and whether the loan issuance process is compliant is another focus that has attracted much attention. In the statements of Yan Hua and Hua Changda, the allegations that the middleman Li Qingxia and Guochuang Capital charged 2 million yuan and 4 million yuan respectively also made the incident full of doubts.

In the announcement, Huachangda denounced Guochuang Capital as a professional financial institution of state-owned assets, which had no financial qualification to issue loans at all, seriously violated the financial licensing regulations and issued loans in violation of regulations. When issuing a huge loan of 200 million yuan, no review procedure was performed, and there were serious omissions in the review, issuance and post-loan follow-up inspection of the loan. Obviously, it was Yan Hua's personal loan, and the seal Yan Hua used was a fake seal, which only passed several times.

In a tip-off letter stamped with the company's official seal provided by Huachangda to our reporter, the company also listed 33 major faults in Guochuang Capital's failure to perform the progress review procedure when issuing a loan of 200 million yuan, including illegal credit business, major faults in the loan procedure, and overall failure of post-loan management.

According to Huachangda's tip-off, no one from Guochuang Capital visited Huachangda on the spot from before to after the loan. All the information was judged only by Yan Hua and his driver Hu Kai, and there was no on-site verification or verification of financing matters with Chen Ze, the legal representative of the company.

In the written reply sent to our reporter, Guochuang Capital indicated that besides obtaining the basic information, corporate governance structure and corporate credit status of Huachangda through public information, Guochuang Capital also requested Huachangda to provide the latest credit report, financial statements, introduction of major products, establishment of Huachangda M&A Fund, private placement and progress, issuance and progress of corporate bonds, and confirmed relevant details such as the purpose of borrowing and arrangement of subsequent repayment sources. In addition, Guochuang Capital also inspected the production and operation of Huachangda Shiyan Headquarters, the production and operation of Shanghai Demeike, a wholly-owned subsidiary of Huachangda, and the customer orders, and took photos on the spot.

"The above information was sent by the staff of Huachangda through the corporate mailbox of Huachangda Company." Guochuang Capital said. According to the email information obtained by the reporter between Hu Kai, an employee of Huachangda, and Guochuang Capital, Hu Kai claimed to be "the secretary of Chairman Yan Hua" in the email. In the statements of Yan Hua and Hua Changda, Hu Kai is only Yan Hua's full-time driver and has no other position in Hua Changda.

Regarding the loan qualification, Guochuang Capital responded to this reporter's interview that Guochuang Capital and Huachangda are both legally registered and effectively existing corporate legal persons. According to the judicial interpretation on the trial of private lending cases issued by the Supreme Court, legal persons can conclude private lending contracts for the needs of production and operation. This loan is a private loan between Guochuang Capital and Huachangda. The loan funds are used for the production and operation of Huachangda, not loans from financial institutions. Guochuang Capital does not issue loans in violation of regulations.

Yan Hua said in his personal statement: "Li Qingxia said that he would give 2% of the benefits to the stakeholders of Guochuang Capital, otherwise he would not get the loan. I agree to the loan. Guochuang Capital did not propose to conduct on-site verification of Huachangda to understand the operating conditions and loan needs of listed companies, saying that if benefits are given, the green channel can be accommodated and the normal loan review procedure can be exempted. "

According to Yan Hua, on July 25th, 2006,2065438, Guochuang Capital credited 4,000,000 yuan to Tianfeng Tianying Bank account given by Li Qingxia as a benefit fee to relevant stakeholders of Guochuang Capital, and paid 2,000,000 yuan to Li Qingxia through Xie Yi, the former employee of Huachangda.

The bank transfer records obtained by our reporter also show that on July 25th, 2006, 2065438, Yan Hua transferred RMB 4 million to the bank account of Tianfeng Tianying Investment Co., Ltd. (hereinafter referred to as "Tianfeng Tianying") through Industrial and Commercial Bank of China, and the agent was Hu Kai. This is consistent with Yan Hua's personal statement and Hua Changda's tip-off.

(Transfer voucher provided by Huachangda)

According to industrial and commercial data, Tianfeng Tianying used to be Tianfeng Tianying. 2065438+February 2008, Tianfeng Tianying was renamed Tianfeng Tianying.

Then, in what name did the 4 million yuan transferred by Yan Hua to Tianfeng Tianying enter the company's corporate account? Is it a "benefit fee" paid to the relevant stakeholders of Guochuang Capital, as Yan Hua said?

In this regard, Guochuang Capital said that 4 million yuan is the financial consulting fee charged by Tianchen Tianying for this loan. Tianzhu Tianying signed a financial advisory agreement with Huachangda, and 4 million yuan was transferred to the account of Tianzhu Tianying Company. However, the explanation of Guochuang Capital can't be used as the answer to this question, and the explanation of Tianfeng Tianying will prevail in the end.

Deng Zhengguo, deputy general manager of Guochuang Capital, told the reporter that Zhang Haiyan, the investment director, Zhou Xin, the general manager and Wang Kai, the deputy general manager who handled the loan at that time, have been working in the company at present. After self-examination and communication with the company, the relevant personnel have no deviant behavior of collecting benefits. Huachangda said it had reported it, and if relevant departments investigate it, the company will actively cooperate with the investigation.

On August 3, Vagrancy, the legal representative and general manager of Tianfeng Tianying, confirmed in an interview with this reporter that the company did receive 4 million yuan from Yan Hua for its corporate account, but it was a financial consultant fee. "The company has signed a consulting service agreement and an entrusted payment agreement with Huachangda before, and Huachangda once entrusted Yan Hua to pay the contract fee personally. The income of the company belongs to all shareholders, and there is no personal benefit fee paid by Yan Hua. "

Disputes about agency by estoppel

As the core party of Huachangda's "200 million yuan loan dispute", Yan Hua, the former chairman, actual controller and major shareholder of Huachangda, has already left the country. According to Luo Hui, his ex-wife, in an interview with a media reporter, Yan Hua's departure time was 20115.

For the source of the official seal of Huachangda Company and the personal seal of Yan Hua, the legal representative of the company, Yan Hua called it his personal seal in his personal statement and inquiry video. "The day before signing the loan contract, I saw a small advertisement engraved on the roadside near fujiapo Bus Terminal in Wuchang District, Wuhan, asking the other party to engrave the official seal of Huachangda and the private seal of Chen Ze, the legal representative of the company."

(Personal statement signed by Yan Hua in the presence of lawyers from Hong Kong Lin Yu Law Firm)

According to the relevant person in charge of Huachangda, it is not clear where Yan Hua himself lives. "He and Yan Hua can only maintain a certain frequency of communication through the company mailbox." As Yan Hua has been living abroad, the authenticity of the seal used in the loan contract and supplementary agreement signed by both parties has also become the key to define the repayment responsibility, and there have been four agency disputes.

The Wuhan Intermediate People's Court held that the focus of the dispute was whether Yan Hua's signing of loan contract and supplementary agreement with Guochuang Capital in the name of Huachangda constituted agency by estoppel when the seal could not be confirmed. After examination, Wuhan Intermediate People's Court held that Yan Hua's behavior of concluding and performing a loan contract with Guochuang Capital in the name of Huachangda met the constitutive requirements of agency by estoppel and constituted agency by estoppel, and Huachangda should bear civil liability for Yan Hua's behavior.

In the final judgment, the Higher People's Court of Hubei Province held that although the seal stamped on the above-mentioned contract was determined by the appraisal agency to be inconsistent with the seal stamped by Huachangda in the administrative department for industry and commerce, it also specifically stated that even the seals of the two filing seals were obviously different and were not stamped by the same seal. In view of the fact that the official seal used by Huachangda is not unique, and there are several seals used at the same time, it cannot be considered that the official seal stamped by Huachangda on the loan contract and supplementary agreement is forged just because it is inconsistent with the official seal for filing.

"In view of the fact that the authenticity of the signature of Huachangda in the loan contract cannot be confirmed, the courts of first instance and second instance finally determined that the contract involved was true and valid according to the facts and the relevant provisions on the legal relationship of agency by estoppel." Guochuang Capital said that according to the relevant facts and the judgments of Wuhan Intermediate People's Court and Hubei Provincial High Court, the court found that Yan Hua had the right to sign a contract on behalf of Huachangda, and the loan relationship between Guochuang Capital and Huachangda was established, and Huachangda should bear the repayment responsibility.

"Guochuang Capital and Huachangda have only established a cooperative relationship because of this loan, and there are no other business contacts. The company has no channel to obtain evidence that Huachangda uses multiple official seals at the same time. " Guochuang Capital said.

It is understood that on February 27th, 2007, 2065438, Guochuang Capital signed the Creditor's Rights Transfer Agreement with Hubei Tiangan Asset Management Co., Ltd. (hereinafter referred to as "Hubei Tiangan"), transferring the creditor's rights enjoyed by Guochuang Capital to Hubei Tiangan at the price of 1.3 1 billion yuan, and to Huachangda and Yanhua.

This transfer behavior has also been questioned by Huachangda. "After Guochuang Capital issued a huge loan and caused losses, in order to cover up its illegal and criminal acts and cover up the resulting loss of state-owned assets, it transferred a huge amount of creditor's rights to the related party Hubei Tiangan by means of false creditor's rights transfer, and signed a contract with it to buy back the creditor's rights at the original price." Hua Changda said in the report letter that his cover-up behavior has been confirmed by the civil judgment of Wuhan Intermediate People's Court.

In this regard, Guochuang Capital told reporters that this transaction between Guochuang Capital and Hubei Tiangan is a normal business behavior. The court has found out that the transaction does not affect the substance of the creditor's rights.

"The creditor's rights were transferred to Hubei Tiangan because of the recognition of Hubei Tiangan. It is difficult for this creditor country to create its own capital and recover it. Hubei Tiangan has an asset management license, and professionals do professional things. " Deng Zhengguo said in an interview with this reporter that the two sides signed a repurchase agreement, but it has been recognized by the court. Although the obligee of the creditor's rights has been transferred, the debtor Huachangda will not change, nor will it change the fact that Huachangda has fulfilled its debt repayment obligations.

According to the Notice of Enforcement and the Order of Property Declaration recently issued by Wuhan Intermediate People's Court, Huachangda was ordered to perform all the obligations specified in the Civil Judgment No.3403 of the Republic of China 20 18 E 0 1. As of July 5, 20 18, the interest is 20 1 28,800 yuan. Based on the principal150 million yuan, the interest and penalty interest from then to the payment date are calculated at the annual rate of 19.50%, that is, the total principal, interest and penalty interest as of June 30 this year is