肩负律师使命、维护司法公正——访全国优秀律师、上海市联合律师事务所管委会主任、党支部书记曹志龙律师

编者按

司法环境是衡量一个国家、地区竞争力的重要指标之一。俗话说，筑好“巢”方能引来“金凤凰”，良好的司法环境是吸引投资的重要手段；是保持市场经济活力的必要条件；同时也是一个国家、区域经济发展和腾飞的有力保障。而打造一个良好的司法环境，更是所有法律人应尽的职责、应有的使命和担当。

进入21世纪以来，随着我国正式加入WTO以及中国企业“引进来”、“走出去”战略及“一带一路”建设的逐步深入推进，中国经济正在完成市场化、国际化进程，并早已融入到世界经济体系和经济全球化的浪潮中。

作为一名执业16个春秋，又曾荣获全国律师行业最高之殊荣“全国优秀律师”的本文主人公——上海市联合律师事务所管委会主任、党支部书记曹志龙律师，无论是谈“引进来”还是聊“走出去”，他首先研究和关注的就是企业法律风险以及法律风险防范之道。正是因为他每年皆代理上百起案件，练就了他的一双火眼金睛，他崇尚“大道至简”、“知行合一”，只要他接手的案件或项目，他总能在纷繁复杂、千头万绪的案件中梳理出明晰的法律关系和头绪，化繁为简并最终维护当事人的合法权益。他常说：“法律面前人人平等，不论是外方还是中方当事人，其权益都要受到法律的保护，因为公正是司法的灵魂和生命线，也是一个国家法治水平、司法环境、投资环境优劣的最好体现。”

公正是法治的灵魂和生命线

中国改革开放40年来在各个领域皆取得了巨大的成就，尤其是广大华侨华人对我国经济文化建设领域的贡献可谓有目共睹。华侨华人发挥其在资金、技术、管理经验、商业资源等方面的优势，在祖国大地投资兴业，用智慧和汗水，有力地促进了中国经济社会的发展，推动了中国同世界的交流与合作。而当华侨华人投资利益受损时，作为守护公平正义的法律人理应保护他们的合法权益，展现中国的法治精神，为社会经济的可持续发展竭尽全力优化投资环境，树立公正的形象。下面介绍一下曹志龙律师竭力维护华侨华人投资权益的经典案例。 

事起：

2003年7月22日，山东某市经济技术开发区管理委员会与香港某发展有限公司（下称“香港公司”）签署《建设成立股份制医院协议书》，初步约定由管委会、香港公司及某市医院（下称“合作医院”）三方在某市经济技术开发区内共同设立一家股份制医院。一年零三个月后，开发区国有资产经营管理公司、香港公司委托的投资主体——某投资公司、某市耳神经外科研究所详细约定了各方各项权利义务。2005年1月17日，开发区国有资产经营管理公司向投资公司、耳神经研究所发出《通知》，告知管委会建议将医院项目分为两期，第一期先成立某市经济技术开发区亚健康科研中心（下称“科研中心”）。接到通知后，投资公司会同地方股东迅速展开了科研中心的筹设工作。2005年9月前夕，经济技术开发区社会事业局、科技与工业发展局亦分别作出批复，准予筹建。

科研中心拿到政府部门的“准行令”后，又于2005年11月、2006年4月将某市国土资源局经济技术开发区分局的两张国有土地使用权证办理完毕，确认科研中心取得了开发区内位于渤海南路的两块国有土地的使用权。然而，就在科研中心的场所建设进行之际，原先大开绿灯的社会事业局却突然“倒戈”，于2007年4月21日发出“关于停止某市经济技术开发区亚健康科研中心筹建活动的通知”，决定立即停止科研中心的“筹建活动”。

2007年8月27日，山东某市公安局经济技术开发区分局在没有解释原因及执法依据的前提下，突然对投资公司的公司章、财务专用章采取了扣押措施；三日后，又再发通知收缴了科研中心的行政章、财务章、合同章。同日，某市国土资源局也向科研中心发出“某注销（2007）字第01号”、“某注销（2007）字第02号”《注销土地登记通知书》，注销科研中心此前取得的国有土地使用权。

香港公司的董事长、华侨蒋某在收到上述四项行政决定后，与该市政府主管部门多次沟通无果。鉴于自身力量薄弱，遂将公司遭遇反映到国务院侨办，后此案转至在当时有着20多年发展历史的上海市联合律师事务所，联合所接到案件后，立即由曹志龙律师等三名律师组成了维权律师团前往山东办理此案。

办案：

接受香港公司委托后，三位律师发现四个具体行政行为均存在程序违法、事实认定有误的情况，遂确定了先复议再谈判的代理方案，先提出撤销四个具体行政行为的复议。几经努力，最终使复议机关山东省人民政府撤销了以上四个具体行政行为，为后续的成功和解与权利维护打下了有力的基础。

曹志龙律师解析：

该案属于涉侨案件，受到国务院侨办的高度重视。承办律师妥善处理该案件有效地化解了外商与当地政府的矛盾；纠正了当地政府的错误行政行为，促进了地方政府依法行政，同时树立了外商对于大陆投资环境及投资法律、政策的信心。该案还属于为当事人挽回重大经济利益的案件，切实维护了当事人的合法权益，获得国侨办、某市当地政府及香港公司的高度评价，对某当地的外商投资环境产生了积极的影响。

国际贸易货款受损，律师历尽艰辛维权

上海某实业发展有限公司（下称“上海公司”）是一家从事太阳能硅材料贸易的公司，在对外采购时因汇款不慎导致货财两空，带来重大经济损失近3000万元人民币。本案件中，他作为主办律师为了证明采购汇款与交易的一致性、虽然没有书面合同但买卖合同关系客观存在历尽艰辛，最终为上海公司挽回了重大经济损失。当然，维权之路何等艰险，或只有经历者才能深刻感受。 

事起：

英属维尔京群岛某硅片公司（下称“硅片公司”）是注册在英属维尔京群岛的公司，德国某股份公司（下称“德国公司”）注册地在德国，硅片公司属德国公司的全资子公司。硅片公司在上海设立了代表处，首席代表为黄某，担任硅片公司中国片区的销售总监。

2006年9月起，硅片公司通过其上海代表处与上海公司进行业务合作，从硅片公司处购买抛光片等货物，并通过花旗银行（中国）有限公司上海分行等各种付款途径向硅片公司支付预付款。起初硅片公司尚能正常发货，但随着订单数量的增大，硅片公司在收取上海公司的预付款后却无法交付货物，而作为控股股东的德国公司在将硅片公司及上海代表处高管系数更换后又拒绝承认上海公司所付款项。没有正式买卖合同，汇款单据的收款方大多是黄某指定的第三人，累积预付款项已达4,235,760.30美元，这样的境况该如何主张自身权益？上海公司遭遇困境，极有可能物财两空，只得求助律师。

维权：

接受上海公司委托后，两律师深觉此案虽只是采购预付款，但双方没有正式买卖合同，又没有将款项汇入供货方主体公司，且该案还涉及中国法律与外国法律等问题，诸多因素皆增加了本案的复杂性。经过认真研究，代理律师提出代理方案：首先要证明上海公司与硅片公司具有实际买卖交易行为；还要证明2006年9月以来上海公司所付款项实际确为购买硅片公司的产品。经调取上海公司与硅片公司多年来进行交易的部分报关单、提单、来往邮件及发票等材料终于获得有效证据；后又取得上海代表处原首席代表黄某签字出具的10份情况说明，其在情况说明中确认尚欠上海公司货款4,235,760.30美元，此证据经上海市卢湾区公证处公证，黄某的证言对上海公司与硅片公司之间的货物买卖关系再次进行了确认；硅片公司财务于2008年8月8日发给上海公司的电子邮件，邮件的附件中详细记载了该公司自2006年以来收到上海公司通过其他公司和个人支付货款的时间和金额(共计收到13,073,819.14美元)，硅片公司总裁Paul亦在该附件中签字。以上证据均表明上海公司与硅片公司间存在买卖关系已无争议，确实存在因买卖关系而形成的债权债务。而且德国公司在硅片公司存在欠款的情况下还通过分红的方式从硅片公司“分得”600万美元的利润，这侵害了债权人的利益。

所有证据材料收集和固定后代理律师提出：

1.上海公司与硅片公司之间存在因长期买卖关系而形成的债权债务；

2.作为控股股东的德国公司所谓分红行为侵害了上海公司利益，应对硅片公司的债务承担连带责任的代理意见。

判决：

法院经审理判决被告硅片公司向原告上海公司支付4,235,760.30美元，并偿付自2009年7月27日起至该判决生效之日止的利息(按中国人民银行同期美元存款利率计算)，但法院因硅片公司所在英属维尔京群岛及德国公司法的规定与中国公司法不同，而驳回了要求被告德国公司对被告硅片公司的债务承担连带责任的诉讼请求。

曹志龙律师解析：

本案中原告上海公司与被告硅片公司之间没有签订买卖合同，也没有原告直接向被告支付货款的凭证，但货物买卖通常会有对账单、发票，双方的往来函件等，上述证据若综合考虑，即能够让法院采信双方确实存在买卖关系，在被告硅片公司以及其控股股东德国公司未能举证已履行发货义务的情况下，被告硅片公司理应将原告上海公司预付的货款及相应利息予以退还。

此外，由于该案属涉外案件，首先应确定法律适用问题，同时还需要律师对法律关系涉及的外国法律进行研究，律师作为原告当事人的代理人往往会对法律条款做有利于当事人的理解和解释，在思维上也可能会受到惯有的中国法律的影响。例如我国公司法中规定了“公司股东滥用公司法人独立地位和股东有限责任，逃避债务，严重损害公司债权人利益的，应当对公司债务承担连带责任。”这就是涉及公司人格混同问题，人格混同主要表现为人员混同、业务混同、财务混同。但本案中对此问题应适用的法律是被告硅片公司登记地即英属维尔京群岛的相关法律。法院认为，英属维尔京群岛《商业公司法》中并未明确人格混同的法律构成要件，也没有规定因人格混同及股东利用法人独立地位损害公司债权人利益后的法律责任；且主张利润分配不当的主体是公司而非债权人。所以并未支持由被告德国公司对被告硅片公司的债务承担责任的诉讼请求。该案例也说明了英属维尔京群岛《商业公司法》对于公司人格混同规则的特殊性，这需要在从事国际投资与贸易时特别关注。

曹志龙律师建议：

从整个判决结果来看，法院支持了被告硅片公司向原告上海公司支付全部诉讼请求的货款金额及利息，维护了原告的合法权益，使原告上海公司避免了重大经济损失。

在此，作为长期研究世界各国法律环境、投资环境的律师，我们建议：买卖或交易时应认识到签订书面合同以及商谈与确定具体合同条款的重要性；若买卖或交易一方或双方是公司的，希望能够同时规范公司相关规章制度，避免在交易过程中产生争议，造成损失。

曹志龙律师的解析和建议由点及面，条例清晰，直击要处，足见其背后的良苦用心及深厚的法学功底，希望我国企业在国际贸易中、在“走出去”战略、“一带一路”建设中，亦如曹志龙律师所愿，将法律和风险防范意识常记心间，如此方能无往而不利。

▲为中国企业“走出去”“一带一路”建设建言献策

笔者了解到，曹志龙律师参与发起建立了“八方联盟”和“国际律师事务所联盟”（ADVOC）并担任上海区代表；坚持与港、澳、台及多个国家之间的双边业务合作和交流；多次参与“企业兼并重组与海外投资高层论坛”；参加莫斯科交易所与上海清算所联合主办的“一带一路建设的投融资暨中俄金融基础设施建设国际研讨会”；担任国际商品和原料交易业务合作之专家顾问等。

2017年10月26日，曹志龙律师受邀出席了莫斯科交易所与上海清算所联合举办的“一带一路建设的投融资暨中俄金融基础设施建设国际研讨会”，并以“企业跨境投融资面临的法律风险与防范”为题进行交流发言。曹志龙律师围绕企业跨境投融资现状、投融资的监管和主要法律规定、企业投融资所面临的主要问题及法律风险，提出企业在“一带一路”的投融资中应当加强尽职调查、熟悉投融资目的国法律法规、掌握金融工具和熟悉金融产品、完善项目运作与公司治理、加强与专业机构和国际组织合作，并建议企业建立和完善ACE法律风险管理体系建设。曹志龙律师同时提出企业在“一带一路”投融资过程中应当充分发挥律师的作用：律师在法律查明、尽职调查及法律风险防范方面具有独特的优势，律师在“一带一路”新形势下能够为企业跨境投融资提供优质高效的法律服务。与会嘉宾对曹志龙律师的发言的积极响应，提出今后将加强与律师事务所的合作与交流，进一步了解金融工具与金融产品，防范“一带一路”投融资带来的法律风险。

笔者还了解到，早在2009年第七届华东律师论坛上，曹志龙律师就已将自己的研究和实务经验撰写成文章《谈谈中国律师如何更好地为跨境投资提供法律服务》与同仁无私分享。文章中，曹志龙律师根据自己的实务经验，提出了律师在跨境投资中可提供的法律服务的独到见解。文章结尾，曹志龙律师提出：中国律师事务所和律师们应当从不断完善内部管理、加强对律师专业分工、开展国际经验交流等方面，不断提高中国律师的专业化水平，不断提高中国事务所的核心竞争力，不断开拓新的法律服务市场，使中国律师业在经济全球化的浪潮中，真正走向专业化、规模化和国际化。

后记

曹志龙律师说：“律师不仅是一种职业，一种专业，更是一项事业。是法治梦想的力量，指引我们不断前行；是律师事业的召唤，让我们为之终身奋斗。”

正是秉持这样一份对律师事业的热爱，对法治梦想的执着，让曹志龙律师获得了行业内外的高度认可。曹志龙律师现担任所内管委会主任、党支部书记。兼任中华全国律师协会战略发展委委员、中华全国律师协会民事专业研究委员会委员、中华全国律师协会公司法专业研究委员会委员、上海市律师协会公司与商事业务研究委员会主任、上海市律师协会社会责任促进委员会主任、上海市律师协会规划与规则委员会副主任、上海市律师协会第十届理事、上海法学会商法研究会常务理事、华东政法大学律师学院特聘教授、中国国际经济贸易仲裁委员会仲裁员、上海国际经济贸易仲裁委员会仲裁员、上海仲裁委员会仲裁员、上海经贸商事调解中心调解员、黄浦区人大代表等社会职务。近年来，他的努力获得了多项荣誉，荣获2009年度“第十届上海市青年岗位能手称号”、“第四届上海市优秀青年律师”称号；被评为2011-2015年度上海市优秀律师，2011-2014年度全国优秀律师。

据悉，曹志龙律师还是本届中华全国律师协会修订和完善《律师法》课题的主持人，从律师定位、执业权力保障和救济、律协定位、维护法律服务市场秩序等12个方面提出了建设性的法律修改意见。

笔者了解到，在从事律师工作前，曹志龙律师曾有过四年人民教师的职业生涯，20年来，从教师到律师，从“万金油”律师到专业律师，从专业律师到“优秀青年律师”，从“优秀青年律师”到“全国优秀律师”、律师行业建设工作的参与者，曹志龙律师一直坚守着一个信念，那就是要肩负时代使命，大力弘扬法治精神，竭力维护法律尊严，做一名司法公正的维护者。

眼界决定人生格局，格局决定人生高度。作为上海滩老牌律所上海市联合律师事务所的管委会主任、党支部书记，曹志龙律师正身处世界潮流的前沿，与律所同仁一道踌躇满志地书写着他们的法律人生和法治梦想，书写着法律的公平与正义。

Shouldering a lawyer’s mission and protecting judicial justice

——Lawyer Cao Zhilong, National Excellent Lawyer, and Chairman of the Management Committee and Secretary of the CPC Branch of Shanghai United Law Firm

Editorial note

The judicial environment is an important indicator of the competitiveness of a country or region. As the saying goes, a good nest attracts the golden phoenix. A good judicial environment is an important means of attracting investment, a prerequisite to an active market economy, and a strong guarantee of the economic development and take-off of a country or region. Creating a good judicial environment is a duty and mission of all lawyers.

Since the beginning of the 21st century, with China’s accession to the WTO, and the further implementation of China’s going global strategy, and Belt and Road Initiative, the Chinese economy is being liberalized and globalized, and has been integrated into the global economic system and the wave of economic globalization.

Lawyer Cao, Chairman of the Management Committee and Secretary of the CPC Branch of Shanghai United Law Firm is a lawyer who has practiced for 16 years, and a winner of “National Excellent Lawyer” – the highest honor of the Chinese lawyer community. When talking about “bringing in” and “going global”, he always focuses on legal risks of enterprises and how to prevent such risks. It is because he handles over 100 cases per annum that he has got penetrating insights. He advocates that “Great truths are always simple.”, and “Knowledge and action should go hand in hand.” For whatever case he handles, he can always find out clear legal relationships and clues from complicated facts, turn complexity into simplicity, and finally protect the client’ lawful rights and interests. He often says: “All people are equal before the law. For any client, Chinese or foreign, its rights and interests must be protected by law, because justice is the soul and lifeline of judicature, and also the best embodiment of a country’s rule by law, judicial environment and investment environment.”

Justice is the soul and lifeline of rule by law.

China has made tremendous achievements in all sectors in the past 40 years of reform and opening up. In particular, the contributions of overseas Chinese to China’s economy and culture are obvious to all. Overseas Chinese investors have promoted China’s economic and social development, and exchanges and cooperation with other countries using their advantages in capital, technology, management experience and business resources. When they suffer losses in investment interests, lawyers ought to protect their lawful rights and interests, show China’s rule by law spirit, and endeavor to create a better investment environment that promotes sustainable economic and social development as guardians of fairness and justice. Typical cases in which Lawyer Cao strived to protect investment interests of overseas Chinese are presented below.

Origin:

On July 22, 2003, the management committee of an economic and technological development zone in a city in Shandong Province entered into an agreement on the establishment of a joint-stock hospital with a Hong Kong development limited liability company (hereinafter referred to as the “Hong Kong Company”), specifying that the management committee, the Hong Kong Company and a municipal hospital (hereinafter referred to as the “Cooperative Hospital”) would establish a joint-stock hospital jointly in the economic and technological development zone. After one year and three months, the state-owned asset management company of the development zone, an investment company – the investor appointed by the Hong Kong Company, and a neurotology institute agreed on their respective rights and obligations in detail. On January 17, 2005, the state-owned asset management company of the development zone gave a notice to the investment company and the neurotology institute, stating that the management committee suggested developing the hospital project in two phases, where the sub-health research center of the economic and technological development zone (hereinafter referred to as the “Research Center”) would be established in the first phase. After receiving the notice, the investment company started the preparation of the Research Center quickly together with local shareholders. Immediately before September 2005, the social affairs bureau, and science, technology and industry development bureau of the economic and technological development zone approved preparation respectively.

After the Research Center got the government approvals, it received two certificates of the right to use state-owned land from the economic and technological development zone branch of the municipal land and resources bureau in November 2005 and April 2006, certifying that the Research Center obtained the right to use two pieces of state-owned land located on Bohai South Road. However, when the Research Center was about to be built, the social affairs bureau that formerly granting an approval changed its decision by issuing the notice on stopping the preparation of the Research Center in the economic and technological development zone on April 21, 2007.

On August 27, 2007, the economic and technological development zone branch of the municipal public security bureau detained the corporate and financial seals of the investment company suddenly without explaining the reason and the basis of law enforcement, and issued a notice three days later to seize the administrative, financial and contract seals of the Research Center. On the same day, the municipal land and resources bureau issued notices of cancellation of land registration (“X Zhu Xiao (2007) No.01” and “X Zhu Xiao (2007) No.02”) to the Research Center, cancelling the right to use state-owned land obtained by the Research Center earlier.

Jiang X, Board Chairman of the Hong Kong Company and overseas Chinese, communicated with the competent municipal authorities many times after receiving the above four administrative decisions, but his efforts proved futile. Due to his own limited power, he reported the matter to the Overseas Chinese Affairs Office of the State Council, and this case was later transferred to Shanghai United Law Firm with a history of over 20 years. After accepting this case, the law firm dispatched a legal team composed of Lawyer Cao and two other lawyers to Shandong to handle this case.

Case handling:

After appointment by the Hong Kong Company, the three lawyers found that all the four administrative decisions involved illegal procedures or erroneous determination of facts, determined a handling program of reconsideration before negotiation, and filed a reconsideration application of revoking the four administrative decisions. Through their efforts, the Shandong Provincial People’s Government – the reconsideration body – revoked the four administrative decisions, laying a solid foundation for subsequent successful reconciliation and rights protection.

Lawyer Cao’s analysis:

This case involved overseas Chinese, and was highly valued by the Overseas Chinese Affairs Office of the State Council. The handling lawyers handled this case properly, resolved the conflict between the foreign investor and the local government, corrected the wrong administrative act of the local government, caused the local government to carry out administrative work according to law, and built up the foreign investor’s confidence in the investment environment, laws and policies of Mainland China.; In this case, major financial losses were retrieved for the client, and its lawful rights and interests protected practically. This case was thought highly of by the Overseas Chinese Affairs Office of the State Council, the municipal government and the Hong Kong Company, and had a positive impact on the local foreign investment environment.

Payments in international trade impaired, and rights protected by lawyers through hard work

A Shanghai industrial development limited liability company (hereinafter referred to as the “Shanghai Company”) is a company dealing with solar silicon material trading. It suffered major financial losses of nearly RMB30 million due to inadvertent remittance in foreign purchase. In this case, Lawyer Cao managed to prove that the purchasing remittance was consistent with the transaction, and a sales contract relationship existed though there was no contract, and eventually retrieved major financial losses for the Shanghai Company. Of course, perhaps only those who experienced this case in person know how difficult it was.

Origin:

A silicon wafer company of the British Virgin Islands (hereinafter referred to as “the Silicon Wafer Company”) is a company registered in the British Virgin Islands, and a wholly-owned subsidiary of a German joint-stock company (hereinafter referred to as the “German Company”). The Silicon Wafer Company has set up a representative office in Shanghai, and its chief representative is Huang X, who is also the China region chief sales officer of the Silicon Wafer Company.

Since September 2006, the Silicon Wafer Company has been in business cooperation with the Shanghai Company through its Shanghai representative office, purchasing polished wafers and other goods from the Silicon Wafer Company, and making down payments to the Silicon Wafer Company via the Shanghai branch of Citibank (China) Co., Ltd. and by other means of payment. At the beginning, the Silicon Wafer Company delivered goods normally; however, with the increase of order quantity, the Silicon Wafer Company was unable to deliver goods after receiving down payments from the Shanghai Company. As the controlling shareholder, the German Company denied down payments of the Shanghai Company after replacing all executives of the Silicon Wafer Company and the Shanghai representative office. There was no formal sales contract, and the remittance documents were mostly to the order of a third party designated by Huang X, with down payments amounting to US$4,235,760.30. How should the Shanghai Company protect its own rights and interests in this case? In this difficult situation, the Shanghai Company had to resort to lawyers.

Protection of rights:

After appointment by the Shanghai Company, the two lawyers thought that though this case involved down payments only, there was no formal sales contract, and the sums were not remitted to the supplier directly; besides, this case involved Chinese and foreign laws, and was extremely complicated. After a careful study, the lawyers proposed a handling program – first proving that there were practical transactions between the Shanghai Company and the Silicon Wafer Company, and then proving the sums paid by the Shanghai Company since September 2006 were actually used to purchase products of the Silicon Wafer Company. After referring to some customs declaration forms, bills of lading, e-mails, invoices and other materials of transactions between the two companies, valid evidence was finally available, and 10 statements issued by Huang X, former chief representative of the Shanghai representative office were obtained later, confirming that the Silicon Wafer Company still owed the Shanghai Company US$4,235,760.30. This evidence was notarized by the Luwan District Notary Office of Shanghai Municipality, and Huang X’s testimony further confirmed the trading relationship between the two companies; the attachment to an e-mail sent by the finance department of the Silicon Wafer Company to the Shanghai Company on August 8, 2008 specified the times and amounts of the sums for goods received by the Silicon Wafer Company from the Shanghai Company via other companies and individuals since 2006 (totaling US$13,073,819.14), and Paul, President of the Silicon Wafer Company, also signed in this attachment. The above evidence showed that there was an undisputed trading relationship between the two companies, together with the resulting credits and debts. Moreover, the German Company received US$6 million in profits from the Silicon Wafer Company in the mode of profit sharing while the latter had debts, thereby infringing on the interests of the creditors.

After all evidentiary materials were collected and confirmed, the lawyers gave the following opinion: 1) There were credits and debts arising from the trading relationship between the Shanghai Company and the Silicon Wafer Company; and 2) The so-called profit sharing act of the German Company as the controlling shareholder infringed on the interests of the Shanghai Company, and should assume a joint and several liability for the debts of the Silicon Wafer Company.

Judgment:

Through trial, the court judged that the defendant (the Silicon Wafer Company) should pay US$4,235,760.30 to the plaintiff (the Shanghai Company), and compensate for the interests thereon from July 27, 2009 to the effective date of the judgment (at the prevailing US dollar deposit rate of the People’s Bank of China). However, the court rejected the claim that the defendant (the German Company) should assume a joint and several liability for the debts of the defendant (the Silicon Wafer Company) because the company laws of the British Virgin Islands and Germany were different from the Chinese company law.

Lawyer Cao’s analysis:

In this case, there was no sales contract between the plaintiff (the Shanghai Company) and the defendant (the Silicon Wafer Company), nor there was any voucher of direct payment by the plaintiff to the defendant. However, the sale of goods was often accompanied by account statements, invoices, letters, etc., and such evidence could make the court believe that there was a trading relationship between both parties. Since the defendant (the Silicon Wafer Company) and its controlling shareholder (the German Company) failed to prove that they had performed the delivery obligation, the defendant (the Silicon Wafer Company) ought to refund the down payments of the plaintiff (the Shanghai Company) and the interests thereon.

In addition, since this was a foreign-related case, the applicable laws should be first determined, and the lawyers should study the foreign laws involved in the legal relationship. As the agent of the plaintiff, the lawyers would often understand and interpret legal provisions in favor of the plaintiff, and their thinking might also be habitually affected by Chinese laws. For example, the Chinese company law stipulates, “If a shareholder of a company abuses the independent status of the legal entity and the limited liability of shareholders to evade debts, thereby infringing on the interests of the company’s creditors seriously, it shall assume a joint and several liability for the company’s debts.” This involves the confusion of corporate personality, which takes the form of staff, business and financial confusion mainly. However, the laws applicable in this regard in this case are the relevant laws of the British Virgin Islands – the place of incorporation of the defendant (the Silicon Wafer Company). The court thought that the Business Company Act of the British Virgin Islands did not define the legal constituents of personality confusion, nor did it stipulate the legal liability arising from personality confusion, and a shareholder’s infringement on any creditor’s interests using the independent status of the legal entity, and that the subject claiming improper profit distribution was the company other than any creditor, so it did not support the claim that the defendant (the German Company) should be liable for the debts of the defendant (the Silicon Wafer Company). This case also shows the special nature of the rules on the confusion of corporate personality in the Business Company Act of the British Virgin Islands, so special attention should be paid to this in international investment and trade.

Lawyer Cao’s advice:

Based on the judgment, the court supported that the defendant (the Silicon Wafer Company) should pay all the claimed sums and the interests thereon to the plaintiff (the Shanghai Company), protecting the lawful rights and interests of the plaintiff, and helping the plaintiff avoid major financial losses.

As lawyers studying legal and investment environments of all countries around the world, we suggest that the importance of entering into a written contract, and negotiating and defining contract terms should be realized in trading, and if one party or both parties is or are a company or companies, relevant corporate rules and regulations should also be regulated to avoid disputes and losses.

Lawyer Cao’s analysis and advice are well organized and direct to the point, from which his well-meant intention and profound legal knowledge can be seen. As expected by Lawyer Cao, Chinese enterprises should always keep law and risk prevention in mind in international trade, and the implementation of China’s going global strategy, and Belt and Road Initiative in order to remain successful.

Giving advice on the implementation of the going global strategy, and the Belt and Road initiative for Chinese enterprises

The author has learned that Lawyer Cao participated in the establishment of the “Grand Compass Alliance” and the international network of independent law firms (ADVOC), and serves as the representative of the Shanghai region; he has been engaged in bilateral cooperation and exchanges with Hong Kong, Macao, Taiwan and many countries, attended the High-level Forum on Business M&A and Overseas Investment many times, and the International Seminar on Belt and Road Investment and Financing & China-Russia Financial Infrastructure Construction jointly organized by Moscow Exchange and Shanghai Clearing House, and served as an expert adviser on international cooperative commodity and raw material trading.

On October 26, 2017, Lawyer Cao was invited to attend the International Seminar on Belt and Road Investment and Financing & China-Russia Financial Infrastructure Construction jointly organized by Moscow Exchange and Shanghai Clearing House, and gave a speech titled “legal risks in cross-border corporate investment and financing, and prevention”. Based on the current situation of cross-border corporate investment and financing, regulation, key legal provisions, key issues and legal risks, he proposed that enterprises should strengthen due diligence, get familiar with laws and regulations of destination countries, understand financial tools and products, improve project operations and corporate governance, and strengthen cooperation with professional and international organizations in investment and financing activities under the Belt and Road Initiative, and advised enterprises to establish a sound ACE legal risk management system. He also proposed that enterprises should give full play to the role of lawyers in this process, because lawyers had unique advantages in due diligence and legal risk prevention, and were able to provide high-quality and efficient legal services for cross-border corporate investment and financing in the new situation. The guests present responded actively to Lawyer Cao’s speech, and said that they would strengthen cooperation and exchanges with law firms, further understand financial tools and products, and prevent legal risks arising from investment and financing activities under the Belt and Road Initiative.

The author has also learned that at the Seventh Eastern China Lawyer Forum in 2009, Lawyer Cao shared his article “A talk on how Chinese lawyers should provide better legal services for cross-border investment” written based on his research and practical experience selflessly with peers. In this article, Lawyer Cao expressed an insightful view on legal services that could be offered by lawyers in cross-border investment based on his practical experience. At the end of the article, Lawyer Cao wrote, “Chinese law firms and lawyers should improve their professionalism and core competences, and keep developing new legal service markets by improving internal management, strengthening specialization, and conducting international experience sharing, thereby enabling the Chinese legal service industry to be truly specialized, expanded and globalized in the wave of economic globalization.”

Postscript

Lawyer Cao said, “The lawyer is not only an occupation or profession, but also a career. It is the dream of rule by law that guides us forward, and the mission of the lawyer career that inspires to devote our lifetime to it.”

It is his commitment to the lawyer career and the dream of rule by law that makes Lawyer Cao highly recognized in and out of the industry. Currently, Lawyer Cao is Chairman of the Management Committee and Secretary of the CPC Branch of Shanghai United Law Firm, and also holds many social positions, such as member of the Strategic Development Committee of All China Lawyers Association, the Civil Research Committee of All China Lawyers Association, and the Company Law Research Committee of All China Lawyers Association, Director of the Corporate and Business Affairs Research Committee of Shanghai Lawyers Association, Director of the Social Responsibility Promotion Committee of Shanghai Lawyers Association, Deputy Director of the Planning and Rules Committee of Shanghai Lawyers Association, member of the Tenth Council of Shanghai Lawyers Association, executive council member of the Commercial Law Research Branch of Shanghai Law Society, Distinguished Professor of the Lawyers Institute of East China University of Political Science and Law, arbitrator of the China International Economic and Trade Arbitration Commission, arbitrator of the Shanghai International Economic and Trade Arbitration Commission, arbitrator of the Shanghai Arbitration Commission, mediator of the Shanghai Commercial Mediation Center, and deputy to the Huangpu District People’s Congress. In recent years, he has won a number of honors, including the “Tenth Shanghai Excellent Young Job Performer Award” in 2009, the “Fourth Shanghai Excellent Young Lawyer Award”, Shanghai Excellent Lawyer during 2011-2015, and National Excellent Lawyer during 2011-2014.

It is learned that Lawyer Cao is also the leader of the Lawyer Law amendment project of All China Lawyers Association, and has give constructive amendment advice in 12 aspects, including lawyer positioning, practicing power protection and relief, lawyers association positioning, and the order of the legal service market.

The author has learned that Lawyer Cao served as a teacher for four years before becoming a lawyer. From a teacher to a lawyer, a “utility” lawyer, a specialized lawyer, an excellent young lawyer, a national excellent lawyer, and a participant of legal service industry development, Lawyer Cao always believes that he should shoulder a lawyer’s mission to carry forward the rule by law spirit, and protect the dignity of law and judicial justice.

The vision determines how successful one can be in his/her career. As Chairman of the Management Committee and Secretary of the CPC Branch of Shanghai United Law Firm – a well-established law firm in Shanghai, Lawyer Cao is endeavoring to realize the common dream of pursuing the fairness and justice of law together with his colleagues.