A comparative analysis of the legal risks of the company's registered capital payment and equity transfer under the background of the convergence of the "old and new" Company Law.

1. The application of the law in the context of the current Company Law and its supporting judicial interpretations

According to the provisions of Article 13 of the current "Company Law" supporting judicial interpretation "Company Law Interpretation III":"If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or have not fully fulfilled their capital contribution obligations bear supplementary liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unpaid capital contribution, the people's court shall support it;If the shareholders who have not fulfilled or have not fully fulfilled their capital contribution obligations have assumed the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it."

according to the provisions of article 6 of the "nine people's minutes,Under the registered capital subscription system, shareholders enjoy term benefits in accordance with the law. The people's court shall not support the creditor's request that the shareholders of the outstanding capital contribution period bear supplementary liability for the debts that the company cannot pay off within the scope of the unfunded capital contribution on the grounds that the company cannot pay off the debts due.However, the following circumstances are excluded:(1) in the case of the company as the executed person, the people's court has exhausted the enforcement measures and has no property to enforce, and has the reasons for bankruptcy, but does not apply for bankruptcy;(2) after the company's debts are incurred, the company's shareholders (General Assembly) will decide or otherwise extend the period of shareholders' capital contribution.

According to the above provisions, shareholders "fail to perform or fail to fully perform their capital contribution obligations", the company, other shareholders, and creditors can request shareholders to bear the responsibility. Except for two special circumstances, in principle, it is limited to the expiration of the capital contribution period. In the case of non-expiration, shareholders enjoy time-limit benefits for capital contribution, and the company, shareholders, or creditors request shareholders who have not reached the capital contribution period to bear the responsibility, it is not supported in principle. The Supreme Court also held the same view in the (2021) Supreme Fa Minshen No. 6423 case, that is, "shareholders who transfer their equity before the expiration of the subscription period do not need to bear joint and several liability for the company's unpayable debts within the scope of the principal and interest of the unfunded capital, unless the shareholder has the malice of transferring the equity to evade the obligation of capital contribution, or there are exceptional circumstances such as zero paid-in capital contribution and setting an ultra-in the long subscription period." Its legal basis lies in the shareholders enjoy the interests of the term, and if they fail to make capital contributions before the expiration of the capital contribution period, it is not a failure to fulfill the obligation of capital contribution. Studying related cases, it is found that the following factual factors are considered in the case of judging the original shareholder's responsibility: first, the formation time of the company's debt, if the formation time of the company's debt is earlier than the transfer time of the original shareholder's equity, the probability of the original shareholder's responsibility is greater, it shows that the original shareholders have malice and the original shareholders should bear the responsibility. Third, the creditors of the company have trust in the transaction to the original shareholders. The creditors establish the transaction based on their trust in the original shareholders. The original shareholders transfer their shares to the new shareholders with weaker economic strength. It also shows that the original shareholders have certain malice, so the probability of the original shareholders taking responsibility is greater.

2. Risk prevention recommendations

(1) Equity transfer or partial transfer prior to the implementation of the new Companies Act, depending on the company's specific circumstances

Article 18 of the "Interpretation III of the Company Law" stipulates: "The shareholders of a limited liability company transfer their equity if they fail to perform or fail to fully perform their capital contribution obligations. The transferee knows or should know that the company requests the shareholder to perform the capital contribution obligations. If the transferee assumes joint and several liability for this, the people's court shall support it; the company's creditors file a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these regulations, and request, the people's court should support it."

According to the above-mentioned provisions and in combination with the provisions of Article 6 of the Nine People's Minutes, in the case that the period of capital contribution has not expired, if the shareholders transfer the equity that has not actually contributed based on the interests of the period of capital contribution enjoyed by the shareholders, the transferee (new shareholder) of the equity shall become the new subject of capital contribution obligation and shall contribute in accordance with the period stipulated in the articles of association, in principle, the company, other shareholders, and creditors shall not request the equity transferor (original shareholder) to bear the responsibility, that is, Article 18 of the "Interpretation of the Company Law" stipulates that "shareholders fail to perform or fail to fully perform their capital contribution obligations to transfer equity" shall indicate When the period expires, the original shareholder shall be liable to the company, other shareholders and creditors for the part that has not been performed or fully performed. Therefore, in principle, the transfer of equity before the capital contribution period by shareholders does not constitute the situation of "transferring equity without fulfilling or fully fulfilling the capital contribution obligations" as stipulated in Article 13, paragraph 2 and Article 18 of the "Interpretation III of the Company Law". However, if the shareholders have maliciously extended the capital contribution period and maliciously evaded debts (as stipulated in Article 6 of the "Nine People's Minutes"), the shareholder's capital contribution will expire at an accelerated, even if the equity transfer is carried out, in the event that the company is unable to pay off its debts as they fall due, there is still a risk that the original shareholders will bear supplementary liability for the debts that the company cannot pay off within the scope of their unfunded contributions.

(2) Capital reduction in accordance with the law prior to the implementation of the New Company

Based on the principle that the new substantive law is not retroactive, before the implementation of the new company law, whether it is equity transfer or capital reduction, the provisions of the current company law and judicial interpretation are applicable. Capital reduction can reduce the amount of capital contribution of shareholders and reduce the scope of supplementary liability of the company to creditors, but the capital reduction procedure is more complicated, including the resolution of the shareholders' meeting, announcement and notification of creditors, and based on the reduction of the company's registered capital, creditors have the right to require the company to pay off its debts or provide corresponding guarantees.

1. Legal risks of shareholders in the event that the term of capital contribution has not expired and has not been paid in.

(1) Civil risks

According to Article 54 of the new Company Law (2023 Revision),If the company is unable to pay off the debts due, the company or the creditors of the due claims shall have the right to require the shareholders who have paid the capital contribution but have not reached the time limit to pay the capital contribution in advance.Although Article 47 of the new Company Law stipulates that shareholders may pay in full the amount of capital contributions paid within five years, if the company is unable to pay off the debts due, in order to protect the interests of creditors, the company or creditors have the right to require shareholders to pay their capital contributions in advance.

Article 54 of the new "Company Law" is a major adjustment to the original company law. The original company law's "normal due capital contribution is the principle, and accelerated maturity is the exception" is revised to "the company cannot pay off the debts." The shareholders' capital contribution obligations accelerate the normalization of maturity ", even if the shareholders adjust the capital contribution period to the period required by the new" Company Law ", but the company has outstanding debts that cannot be paid off, shareholders still have the risk of accelerating the maturity of their capital contributions and assuming legal liability to the company's creditors.

(2) Administrative risk

The State Council on the implementation<中华人民共和国公司法>Article 6 of the Regulations on the Registration and Management System of Registered Capital (Draft for Comments) stipulates that if a limited liability company established before the implementation of the Company Law fails to adjust the period of capital contribution during the transition period,The company registration authority may, in accordance with the law, require it to adjust the period of capital contribution within 90 days, and the period of capital contribution shall not exceed five years from July 1, 2027.A limited liability company may adjust the contribution period to less than five years during the transition period, and the completion of the contribution before June 30, 2032 will meet the requirements. A company limited by shares established before the implementation of the Company Law shall, within a transitional period of three years, pay in full the amount of shares subscribed.

Article 7 of the draft stipulates that for companies established before the implementation of the Company Law, with a capital contribution period of more than 30 years or a capital contribution of more than one billion yuan,The company registration authority may study and judge the authenticity of the registered capital in the light of the shareholders' capital contribution capacity, main projects, asset size, etc. The company registration authority may require the company to provide a description of the situation, or organize professional institutions in the industry to conduct an evaluation, or negotiate with relevant departments to determine that the company's capital contribution period and capital contribution amount are indeed obviously abnormal, after the provincial market supervision and management department agrees, it may According to law, it is required to adjust the capital contribution period and capital contribution within six months, and the adjusted capital contribution period shall not exceed five years from July 1, 2027.This provision gives the registration authority the right to make special intervention adjustments to the company with respect to the period of capital contribution and the amount of capital contribution during the three-year transition period, subject to the statutory identification and reporting procedures. Among them, the initial judgment criterion for the obvious abnormality of the period of capital contribution and the amount of capital contribution is that the period of capital contribution is more than 30 years or the amount of capital contribution is more than 1 billion yuan, both of which can meet one of them, and these companies are the objects that the registration authority focuses on during the three-year transition period.

2. Risk prevention measures

According to the provisions of the new Company Law (2023 amended) requiring shareholders to "pay their capital contributions in full within five years", in order to prevent the above-mentioned legal risks that may be borne by the shareholders of the stock company, it is suggested that the following countermeasures should be taken selectively in the light of the actual situation of the company and shareholders.

(1) The adjustment of the period of capital contribution shall be paid within the three-year transition period or five years from the expiration of the transition period.

According to the first paragraph of Article 47 of the new Company Law (revised 2023), the registered capital of a limited liability company shall be the amount of capital contribution paid by all shareholders registered with the company registration authority.The amount of capital contribution subscribed by all shareholders shall be fully paid by the shareholders within five years from the date of establishment of the company in accordance with the provisions of the articles of association. Article 266 Where the period of capital contribution of a company registered and established before the implementation of this Law exceeds the period specified in this Law, it shall be gradually adjusted to the period specified in this Law, unless otherwise provided by laws, administrative regulations or the State Council;If the period of capital contribution and the amount of capital contribution are obviously abnormal, the company registration authority may require it to make timely adjustments in accordance with the law. Specific implementation measures shall be formulated by the State Council.

The State Council on the implementation<中华人民共和国公司法>Article 3 of the Provisions on the Registration and Management System of Registered Capital (Draft for Comments) stipulates: "In accordance with Article 266 of the Company Law, a three-year transition period shall be set from July 1, 2024 to June 30, 2027.If the period of capital contribution of a company established before the implementation of the Company Law exceeds the period stipulated in the Company Law, it shall be adjusted within the transitional period. If the remaining period of capital contribution of a limited liability company established before the implementation of the Company Law is less than five years from July 1, 2027, there is no need to adjust the period of capital contribution; if the remaining period of capital contribution exceeds five years, the remaining period of capital contribution shall be adjusted to five years within the transition period.The period of capital contribution of the adjusted shareholders shall be recorded in the articles of association of the company and publicized to the public on the state enterprise credit information publicity system in accordance with the law. A company limited by shares established before the implementation of the Company Law shall, within a transitional period of three years, pay in full the amount of shares subscribed.

(2) Gradual payment of capital contributions

For stock companies, the most direct way to deal with the new "Company Law" deadline subscription system is to gradually complete the paid-in capital, that is, for these established, registered capital setting is more reasonable and shareholders have the ability to contribute, the most priority should be given to the gradual payment in place.

(3) Change of contribution method

Article 48 of the new Company Law (2023 revision) stipulates that shareholders may make capital contributions in currency, or in kind, intellectual property rights, land use rights, equity, creditor's rights and other non-monetary property that can be valued in currency and can be transferred according to law; however, except for property that may not be used as capital contribution according to laws and administrative regulations.

If the shareholders of the stock company are in short supply of monetary funds at the moment, but have other non-monetary assets such as intellectual property rights, equity, debt, etc., they may consider changing the mode of capital contribution to non-monetary capital and going through the corresponding industrial and commercial change registration.

(4) Capital reduction according to law

If the registered capital of the stock company is obviously not matched with the actual scale of production and operation at the time of establishment, or if the company has difficulties in production and operation, suffers serious losses, or if there is a shortage of shareholders' funds and no other non-monetary property, it is recommended that the company handle capital reduction in accordance with the law. The new Companies Act distinguishes between substantial and formal capital reductions. The substantive capital reduction shall be subject to the normal capital reduction procedure of Article 224 of the new law, while the formal capital reduction shall be subject to the simplified capital reduction procedure of Article 225 of the new law.

According to Article 5 of the "Draft for Comments", the stock company has the following conditions. During the transition period, the company can apply for reducing the registered capital but not reducing the paid-in capital. The company can publicize it to the public for 20 days through the national enterprise credit information publicity system. If the creditor does not raise any objection during the publicity period, the company can register the change of registered capital with the application and undertaking: ① there is no unsettled debt or the debt is significantly lower than the company's paid-in registered capital; ② all shareholders promise to bear joint and several liability for the company's debts before the capital reduction within the scope of the original subscribed capital contribution; ③ all directors promise not to damage the company's debt performance ability and sustainable operation ability.

(5) Equity transfer

According to Article 88 of the new Company Law (as amended in 2023), if a shareholder transfers an equity interest that has paid a capital contribution but has not reached the period of the capital contribution, the transferee shall bear the obligation to pay the capital contribution; if the transferee fails to pay the capital contribution in full and on time, the transferor shall bear supplementary liability for the capital contribution that the transferee fails to pay on time. If the shareholders who fail to pay the capital contribution in accordance with the capital contribution date stipulated in the articles of association or the actual value of the non monetary property as the capital contribution is significantly lower than the capital contribution, the transferor and the transferee shall bear joint and several liability within the scope of insufficient capital contribution; if the transferee does not know and should not know the existence of the above situation, the transferor shall bear the responsibility.

Based on the above provisions, shareholders can transfer the shares that have subscribed for capital contribution but have not reached the time limit. After the transfer, the new shareholders become the first obligor of the subscribed capital contribution. However, in order to protect the interests of creditors, the new company law still does not completely exempt the original shareholders, that is, in the case of "the transferee fails to pay the capital contribution in full and on time", The original shareholders shall still bear supplementary liability for the unpaid capital contribution. Also based on the above provisions, if there are multiple transfers of the same equity before the expiration of the capital contribution period, as long as the transferee who finally took over the equity does not pay the capital contribution on time, all the forehands are at risk of additional liability, in order to indirectly urge the equity transferor to complete the capital contribution in a timely manner before the transfer. Therefore, before the transfer of equity, the economic situation and credit situation of the transferee should be investigated and verified to avoid the dilemma that the equity is transferred, but the responsibility is ultimately difficult to transfer.

Article 13 of the current "Company Law" supporting judicial interpretation "Company Law Interpretation III" stipulates:"If a shareholder fails to perform or fails to fully perform his or her capital contribution obligations, and the company or other shareholders request him or her to fully perform his or her capital contribution obligations to the company in accordance with the law, the people's court shall support the request of the company's creditors to the shareholders who fail to perform or fail to fully perform their capital contribution obligations to bear supplementary liability for the unliquidated part of the company's debts within the scope of the principal and interest of the unfunded, the people's capital contribution."

Article 18 stipulates: "if a shareholder of a limited liability company fails to perform or fully performs the obligation of capital contribution, the transferee knows or should know that if the company requests the shareholder to perform the obligation of capital contribution and the transferee bears joint and several liability for it, the people's court shall support it; if the creditor of the company brings a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these Provisions, The people's court shall support it."

According to the above provisions, if the capital contribution period expires, the shareholders have a greater civil risk, and the company, other shareholders and creditors may request the shareholders who have not contributed to fulfill their capital contribution obligations or be liable for the debts that the company cannot pay off. In the case of the expiration of the capital contribution period, even if the equity transfer or capital reduction is carried out, the possibility of malicious evasion of debt is greater based on judicial practice, and shareholders cannot be exempted from liability based on the act of equity transfer or capital reduction.

1. Liability of shareholders who fail to fulfill their capital contribution obligations on time

The third paragraph of Article 49 of the new "Company Law" (2023 revised) stipulates that if a shareholder fails to pay the capital contribution in full and on time, in addition to paying the company in full, he shall also be liable for the losses caused to the company.

2. Joint and several liability of other shareholders at the time of establishment of the company

Article 50 of the new "Company Law" (2023 Revision) stipulates that when a limited liability company is established, the shareholder fails to actually pay the capital contribution in accordance with the company's articles of association, or the actual value of the non-monetary property actually contributed is significantly lower than the subscribed capital contribution. In case of capital contribution, other shareholders and the shareholder at the time of establishment shall bear joint and several liability within the scope of insufficient capital contribution.

Thus, if the actual value of the non-monetary property contributed by the shareholders at the time of the establishment of the stock company is significantly lower than the amount of the capital contribution, the other shareholders at the time of the establishment of the company will be jointly and severally liable to the company or creditors together with the non-contributing shareholders.

3, director collection capital contribution risk.

According to Article 51 of the new Company Law (as amended in 2023), after the establishment of a limited liability company, the board of directors shall verify the capital contribution of the shareholders and find that the shareholders have not paid the capital contribution stipulated in the articles of association in full and on time, the company shall issue a written call to the shareholder to collect the capital contribution. 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.

Accordingly, the Board of Directors or the Executive Director is obliged to call on the capital contribution and shall compensate the Company for the interest on the delayed capital contribution arising therefrom if such obligation is not fulfilled in a timely manner. Directors may be required to exercise due diligence in verifying shareholder contributions, rather than merely conducting a pro forma review. If the board of directors fails to fulfill its verification obligations, the scope of compensation to be borne by the responsible director needs to be further clarified in future judicial practice.

4. Risk of loss of shareholder rights

According to the first paragraph of Article 52 of the new "Company Law" (2023 revised), if a shareholder fails to pay the capital contribution on the date of capital contribution specified in the company's articles of association, and the company issues a written reminder to call for the capital contribution in accordance with the first paragraph of the preceding article, the grace period for the payment of capital contribution may be stated; the grace period shall not be less than 60 days from the date when the company issues the reminder. If the grace period expires and the shareholder has not fulfilled his obligation to contribute capital, the company may, by resolution of the board of directors, issue a notice of loss of power to the shareholder, which shall be issued in writing. From the date of issuance of the notice, the shareholder loses the equity of his unpaid capital contribution.

The equity lost in accordance with the provisions of the preceding paragraph shall be transferred in accordance with the law, or the registered capital shall be reduced accordingly and the equity shall be canceled; if the equity is not transferred or canceled within six months, the other shareholders of the company shall pay the corresponding capital contribution in full in proportion to their capital contribution.It should be noted that the loss of shareholders' rights does not exempt them from the losses caused to the company due to overdue capital contributions.

5. Risks of equity transfer in the event of the expiration of the capital contribution period

According to the second paragraph of Article 88 of the new Company Law (revised in 2023), if a shareholder who fails to pay the capital contribution in accordance with the capital contribution date specified in the articles of association or the actual value of the non-monetary property as the capital contribution is significantly lower than the subscribed capital contribution transfers the equity, the transferor and the transferee shall bear joint and several liability within the scope of insufficient capital contribution; if the transferee does not know and should not know the existence of the above, the above, The transferor should not know.

6. Administrative liability for overdue contributions

Article 252 of the new "Company Law" (2023 Revision) stipulates that if the promoters and shareholders of a company make false capital contributions and fail to deliver or fail to deliver the currency or non-monetary property as capital contributions on time, the company registration authority shall order corrections. A fine of not less than 50,000 yuan but not more than 200,000 yuan may be imposed; if the circumstances are serious, a fine of not less than 5% but not more than 15% of the false capital contribution or the unfunded amount shall be imposed; A fine of not less than 10,000 yuan but not more than 100,000 yuan shall be imposed on the person-in-charge and other persons directly responsible.

Accordingly, if the period of shareholders' capital contribution stipulated in the articles of association of the stock company exceeds the period of "full payment within five years" stipulated in Article 47 of the new company law, and the company still does not amend the articles of association to adjust the illegal period of capital contribution, and the shareholders still do not pay the capital contribution, the shareholders and competent personnel of the company may be subject to administrative punishment.