Viewpoint... List of directors' legal liabilities under the new company law.
Published:
2024-03-18
In order to provide ideas for corporate compliance, director avoidance and creditor rights protection, the provisions of the new company law and the legal liability of directors are listed in the form of a list for readers to collect for reference.
The the People's Republic of China Company Law (hereinafter referred to as the New Company Law), as amended on December 29, 2023, reshapes the responsibility system of companies, shareholders, directors and supervisors, and provides a more detailed system supply and legal path for the accountability of "shell companies", false capital contributions, connected transactions, evasion of liquidation and other illegal situations. In order to provide ideas for corporate compliance, director avoidance and creditor rights protection, the provisions of the new company law and the legal liability of directors are listed in the form of a list for readers to collect for reference.
1. civil liability
1. If the legal representative causes damage to others due to the performance of his duties, the company may recover from the director who is the legal representative after taking the responsibility.
Paragraph 3 of Article 11 of the New Company Law:If the legal representative causes damage to others due to the performance of his duties, the company shall bear civil liability. After the company has assumed civil liability, it may, in accordance with the law or the articles of association, recover from the legal representative at fault.
2. If a director uses a related relationship to harm the interests of the company, he shall be liable for compensation.
article 22 of the new company law:The controlling shareholders, actual controllers, directors, supervisors and senior managers of the company shall not use the related relationship to harm the interests of the company.
Anyone who violates the provisions of the preceding paragraph and causes losses to the company shall be liable for compensation.
3. Directors who are responsible for the failure of the Board of Directors to timely fulfill the obligation of shareholders to call for capital contributions shall be liable for compensation.
article 51 of the new company law:After the establishment of a limited liability company, the board of directors shall verify the capital contributions of the shareholders, and if it is found that the shareholders have not paid the capital contributions stipulated in the articles of association on time and in full, the company shall issue a written call to the shareholders to collect the capital contributions.
If the company fails to perform the obligations stipulated in the preceding paragraph in a timely manner and causes losses to the company, the responsible director shall be liable for compensation.
article 107 of the new company law:The provisions of Article 44, Paragraph 3 of Article 49, Article 51, Article 52 and Article 53 of this Law shall apply to joint stock limited companies.
4. Directors who are responsible for the withdrawal of capital contributions by shareholders shall be jointly and severally liable with the shareholders.
article 53 of the new company law:After the establishment of the company, shareholders may not withdraw their capital contributions.
In case of violation of the provisions of the preceding paragraph, the shareholder shall return the capital contribution withdrawn; if losses are caused to the company, the responsible directors, supervisors and senior managers shall bear joint and several liability with the shareholder.
article 107 of the new company law:The provisions of Article 44, Paragraph 3 of Article 49, Article 51, Article 52 and Article 53 of this Law shall apply to joint stock limited companies.
5. The resolution of the board of directors of the joint stock company is illegal and illegal, and the directors participating in the resolution shall be liable to the company for compensation.
Paragraph 2 of Article 125 of the New Company Law:The directors shall be responsible for the resolutions of the board of directors. If the resolution of the board of directors violates laws, administrative regulations, the company's articles of association, or the resolution of the shareholders meeting, causing serious losses to the company, the directors participating in the resolution shall be liable for compensation to the company; if it is proved that the objection has been expressed during the voting and recorded in the minutes of the meeting, the director may be exempted from liability.
6. The directors who are responsible for the illegal financial assistance of the joint stock company shall be liable for compensation.
Article 163 of the new company law:The Company shall not provide gifts, loans, guarantees or other financial assistance for others to acquire shares of the Company or its parent company, except where the Company implements an employee stock ownership plan.
For the benefit of the company, the company may provide financial assistance for others to acquire shares of the company or its parent company by resolution of the shareholders' meeting or by resolution of the board of directors in accordance with the articles of association or the authorization of the shareholders' meeting, but the cumulative total amount of financial assistance shall not exceed 10% of the total issued share capital. A resolution made by the board of directors shall be adopted by a 2/3 or more of all directors.
Where any loss is caused to the company in violation of the provisions of the preceding two paragraphs, the responsible directors, supervisors and senior managers shall be liable for compensation.
7. Directors are liable to the company for illegal acts in the performance of their duties.
Article 163 of the new company law:If a director, supervisor or senior manager violates the provisions of laws, administrative regulations or the articles of association in the performance of his duties and causes losses to the company, he shall be liable for compensation.
8. The director's performance of his duties damages others and there is intentional or gross negligence, and he is liable for compensation to others.
Article 191 of the new Company Law:If a director or senior manager performs his duties and causes damage to others, the company shall be liable for compensation; if a director or senior manager is intentionally or grossly negligent, he shall also be liable for compensation. Liability.
9. A director who is instructed to engage in harm to the interests of the company or shareholders shall be jointly and severally liable with the controlling shareholder or actual controller of the instruction.
Article 192 of the new company law:If the controlling shareholder or actual controller of the company instructs a director or senior manager to engage in an act that harms the interests of the company or shareholders, he shall be jointly and severally liable with the director or senior manager.
10. Directors responsible for illegal dividends shall be liable for compensation.
article 211 of the new company law:If a company distributes profits to shareholders in violation of these regulations, the shareholders shall return the profits distributed in violation of the regulations to the company; if losses are caused to the company, the shareholders and the responsible directors, supervisors and senior managers shall be liable for compensation.
11. Directors who are responsible for the illegal reduction of capital shall be liable for compensation.
article 226th of the new company law:If the registered capital is reduced in violation of the provisions of this Law, the shareholders shall return the funds received, and the capital contributions of the shareholders shall be restored to the original state; if losses are caused to the company, the shareholders and the responsible directors, supervisors and senior managers shall be liable for compensation.
12 Directors who fail to fulfill their liquidation obligations in a timely manner shall be liable for compensation.
The second and third paragraphs of Article 232 of the new Company Law:The liquidation group shall be composed of directors, unless the articles of association provide otherwise or the shareholders' meeting adopts a resolution to elect another person.
If the liquidation obligor fails to perform the liquidation obligation in time and causes losses to the company or creditors, he shall be liable for compensation.
13. The directors of the members of the liquidation group are negligent in performing their liquidation duties and are liable to the company; if they are intentionally or grossly negligent, they are liable to the creditors.
article 238 of the new company law:The members of the liquidation group shall perform their liquidation duties and shall have the duty of loyalty and diligence.
If the members of the liquidation group neglect to perform their liquidation duties and cause losses to the company, they shall be liable for compensation; if they cause losses to creditors due to intentional or gross negligence, they shall be liable for compensation.
2. administrative responsibility
1. Administrative liability of directors for illegal acts involving fraudulent acquisition of company registration.
article 250 of the new company law:Whoever, in violation of the provisions of this Law, falsely reports its registered capital, submits false materials or conceals important facts by other fraudulent means to obtain company registration shall be ordered by the company registration authority to make corrections, and the company that falsely reports its registered capital shall be fined not less than 5% but not more than 15%; the company that submits false materials or conceals important facts by other fraudulent means shall be fined not less than 50,000 yuan but not more than 2 million yuan. If the circumstances are serious, the business license shall be revoked; the person in charge and other persons directly responsible shall be fined not less than 30,000 yuan but not more than 300,000 yuan.
2. Administrative liability of directors for failing to disclose information as required or not to disclose information truthfully
article 251 of the new company law:If a company fails to publicize the relevant information in accordance with the provisions of Article 40 of this Law or fails to truthfully publicize the relevant information, the company registration authority shall order it to make corrections and may impose a fine of not less than 10,000 yuan but not more than 50,000 yuan. If the circumstances are serious, a fine of not less than 50,000 yuan but not more than 200,000 yuan shall be imposed; the person in charge and other persons directly responsible shall be fined not less than 10,000 yuan but not more than 100,000 yuan.
3. Administrative Liability of Directors Involving False Contributions
article 252 of the new company law:If the promoters and shareholders of the company make false capital contributions and fail to deliver or fail to deliver the monetary or non-monetary property as capital contributions on schedule, the company registration authority shall order corrections and may impose a fine of 50,000 yuan to 200,000 yuan; if the circumstances are serious, Impose a fine of not less than 5% but not more than 15% yuan for the amount of false capital contributions or unfunded funds; impose a fine of not less than 10,000 yuan but not more than 100,000 yuan for the directly responsible and other persons.
4. Administrative liability of directors for violations of the law in the liquidation of the company.
article 256 of the new company law:During liquidation, if a company conceals property, makes false records on the balance sheet or property list, or distributes the company's property before paying off its debts, the company registration authority shall order it to make corrections, and impose a penalty on the company for concealing property or distributing the company before paying off the debts. A fine of 5% to 10% of the amount of property; a fine of 10,000 to 100,000 yuan shall be imposed on the directly responsible person in charge and other directly responsible persons.
3. criminal responsibility
If a director's illegal act involves punishment, he shall bear criminal responsibility.
article 264 of the new company law:Whoever violates the provisions of this Law and constitutes a crime shall be investigated for criminal responsibility according to law.
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