MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida, Belmiro Leong and Kimberley Cheong, Riquito Advogados
Please see 10.2 Remedies Against the Directors for more details on compensation claims against direc- tors, and 2.11 Challenging a Resolution for how to invalidate a resolution. Shareholders may also seek interim relief by request- ing the suspension of a shareholders’ resolution or of its respective effects (Section 232). The MCC and the Civil Procedure Code further pro- vide for special legal mechanisms and special forms of procedure for the enforcement of shareholders’ rights, such as the judicial examination of the company, the appointment, suspension or removal of members of corporate bodies, and the provision of information. These remedies are available to minority shareholders. Lastly, shareholders may resolve on the winding-up of the company, subject to the verification of the require- ments set forth in the law – in particular, by filing for bankruptcy – and in such context pursue the prohibi- tion of its respective directors from continuing to do business or undertaking duties as members of corpo- rate bodies in any other companies. 10.2 Remedies Against the Directors Where the management of the company belongs to a board (as is the case with limited liability companies by shares, and may be the case with limited liability companies by quotas, if so chosen by the sharehold- ers), resolutions are subject to annulment or the dec- laration of nullity in similar terms to those described in 2.11 Challenging a Resolution . This was also con- firmed by Awards 848/2009, 981/2009, 878/2012 and 73/2014 of the Court of Second Instance and by Award 71/2012 of the Court of Final Appeal. However, depending on the particulars, decisions by non-col- legial management may also be challenged and their respective execution prevented by the shareholders. There are two other sets of legal remedies to be adopted by shareholders against the directors: • the dismissal of directors during their office term; and • compensation claims due to the breach of legal or statutory duties.
holders may still replenish the capital within 90 days after receiving a summons ( citação ) to the court pro- ceedings (Section 206). If a shareholder suspects the existence of mate- rial irregularities in the company’s activity, they may request a judicial examination to assess the sub- stantiation facts from the court. If the court verifies the existence of any such irregularity, it may order the winding-up of the company, if that is the most adequate remedy (Section 211, paragraphs 1 and 6). A resolution or court decision to wind up a company has the result of putting the company into liquidation (Section 316). As a result of the company’s liquida- tion, shareholders are entitled to share the remaining assets (if any) in the manner described in the articles of association or, in the absence of any such stipulation, as prescribed in the MCC (first, for reimbursement of cash contributions, pro rata to the shareholder’s share in the company’s capital). Companies act through their directors, attorneys and representatives. Shareholders are allowed to file law- suits if there are any unlawful actions or omissions by corporate bodies, attorneys and representatives, in the terms prescribed in Sections 245 to 251 of the MCC. Although an action against a director, attorney or representative to seek their liability vis-à-vis the company may be brought directly by shareholders, only those who bear unlimited liability or hold 10% or more of the share capital are entitled to do so. Howev- er, that does not affect the minority shareholders’ right to seek compensation for their own personal damages under the general terms of the civil law. Directors are not liable vis-à-vis the company if the above actions or omissions are made in the context of the execution of a resolution passed by the share- holders, unless such resolution was passed upon a director’s proposal or if the respective execution is the result of fraud. 10. Shareholders’ Remedies 10.1 Remedies Against the Company
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