Viewpoint... New Company Law Research: "reminder" and "responsibility" of the system of collection loss"
Published:
2024-05-16
In order to maintain the company's capital enrichment, protect the legitimate rights and interests of creditors, and strengthen the company's supervision of shareholders' capital contributions, the new "Company Law" has added a "collection loss system". Who will "urge" the system of loss of power, how to "urge" to produce the effect of loss of power, if not "urge" or wrong "urge" will produce what "responsibility", who will bear this "responsibility", this article mainly from these two angles to interpret the different system of loss of power.
Foreword
In order to maintain the company's capital enrichment, protect the legitimate rights and interests of creditors, and strengthen the company's supervision of shareholders' capital contributions, the new "Company Law" has added a "collection loss system". Who will "urge" the system of loss of power, how to "urge" to produce the effect of loss of power, if not "urge" or wrong "urge" will produce what "responsibility", who will bear this "responsibility", this article mainly from these two angles to interpret the different system of loss of power.
The legal provisions of the 1. collection system.
Procedures for 2. the system of collection and loss of authority
(I) reminder subject
The subject of notice to make a shareholder's call and loss of rights shall be the company (both a limited company and a joint stock company), and the subject of the call shall be the board of directors.
Scope of (II) call
Where a shareholder fails to pay in full and on time the capital contribution stipulated in the articles of association of the company. This includes both failure to pay the full contribution on time and failure to pay part of the contribution on time.
The actual value of non-monetary property is significantly lower than the amount of capital contribution and other capital contribution defects have not been clarified in this law, and it has yet to be tested by judicial practice.
Contents of (III) call notice
There are actually two types of reminders that include a grace period and an unspecified grace period, but only when the company issues a reminder with a grace period of not less than 60 days does it constitute a further notice of loss of power. It is suggested that the notice of call shall state the name (name) of the shareholder, the amount of capital contribution, the method of capital contribution, the proportion of the registered capital of the company, the relevant provisions of the articles of association of the company, the specific grace period, and the relevant legal consequences that may arise from the failure to fulfill the capital contribution obligation within the grace period.
(IV) Collection Process
The collection process is shown in the following figure:
(V) common practical problems
1, the avoidance of related directors. Before issuing the notice of loss of power, the resolution of the board of directors shall be passed. We believe that when the shareholder whose power is lost serves as the director of the company, in order to ensure the fairness and impartiality of the resolution of the board of directors and make accurate business judgment, he should avoid voting. If the voting ratio of the board of directors cannot be met due to his avoidance of voting, the voting of the board of directors can be submitted to the shareholders' meeting. Similarly;
2, the basis of duty exemption. The law stipulates that the notice of loss of power "may" be issued, not must be issued, fully respecting the internal autonomy of the company; the relevant resolutions made by the board of directors will be the basis for whether the subsequent directors perform their duties and whether they should bear the corresponding responsibilities;
3. The notice of loss of power shall be in written form, which can effectively leave a mark and effectively protect the right to know of the shareholders who lose their rights in form;
4. Pay attention to the two dates. Shareholders lose their rights from the date when the notice is "issued". The time for shareholders to file an objection is within 30 days from the date when they receive the notice of loss of rights.
Remedies for (VI) shareholders who lose their rights
The third paragraph of Article 52 of the new "Company Law" specifically stipulates that if a shareholder has objections to the loss of power, he shall file a lawsuit in the people's court within 30 days from the date of receiving the notice of loss of power. This is a new lawsuit created by the new Company Law for the relief of the rights and interests of the shareholders who lose their rights and interests.
1. Subject of litigation
(1) The plaintiff is the shareholder who is notified of the loss of power.
(2) The defendant is the company.
(3) Third party: Any subject who has a legal interest in the outcome of the case or has an independent claim to the subject matter of the dispute between the original and the defendant may participate in the proceedings as a third party. Such as creditors in the company's capital reduction proceedings, transferees of lost equity transfers and other shareholders who have paid the corresponding capital contributions in full in proportion to their capital contributions.
2. Jurisdiction
Disputes over the loss of shareholders' rights should be determined according to the general territorial jurisdiction, not the special territorial jurisdiction, so the court of the company's domicile should be the court of jurisdiction of the case. According to Article 3 of the Judicial Interpretation of the Civil Procedure Law, the domicile of a legal person or other organization refers to the location of the main office of the legal person or other organization. If the location of the main office of the legal person or other organization cannot be determined, the legal person or other organization The place of registration or registration is the place of domicile.
3. The legal effect of the shareholder's dissent after the claim is supported.
If the shareholder files an objection to the loss of power and is supported by the court, but the company has disposed of the lost equity in accordance with the provisions of Article 52, paragraph 2, of the new Company Law, what should be done at this time? First of all, if the company has transferred the equity to another person, the company has no right to dispose of it because the original shareholder restores his status as a shareholder, and if the equity has been changed in the register of shareholders or the registration of the company, the original shareholder has the right to claim a change in the register of shareholders or the registration of the company. At the same time, the Company shall be liable for breach of contract due to the inability to continue to perform the equity transfer contract. Secondly, if the company reduces the corresponding registered capital for this part of the equity, the shareholders can request confirmation of the invalidity of the company's resolution on the grounds that the company's capital reduction resolution infringes on its equity, and if the company has already registered for the cancellation of the equity, the shareholders can request the company to apply for the cancellation of the registration of the change and restore the previous shareholder status. Finally, if the other shareholders of the company pay the corresponding capital contribution in full in proportion to their capital contribution, the disposal is equivalent to the internal transfer of the part of the equity, which has the same legal effect as the above-mentioned equity transfer.
Directors and shareholders liability of the 3. collection system.
Duties of (I) Directors
Both the call decision and the loss of power decision are made by the board of directors in the form of a resolution, and the directors have a fiery obligation to the company, and if the directors violate the fiery obligation and refuse to call and cause losses to the company, they shall bear the corresponding liability for compensation.
To implement the call-up authority of the board of directors, it is recommended to first make corresponding provisions on the powers of the board of directors in the company's articles of association to provide legal provisions and articles of association documents for the board of directors to exercise the call-up authority. Whether or not the board of directors makes a call and a resolution of loss of authority is a business judgment made by the directors with full knowledge, and when the articles of association, resolutions or other internal documents of the company have a division of time on the duties of the directors, the directors who are responsible shall be liable for compensation, and if there is no agreement on the relevant division of labor, all directors shall be jointly and severally liable. At the same time, it is recommended that the directors handle the whole process of the collection procedure.
(II) the liability of shareholders who lose their rights.
Whether the losing shareholder shall be liable to the creditors of the company at this time, the losing shareholder shall lose the equity of the unpaid portion of the capital contribution from the date of the notice of loss of power. Although there is no clear provision in the current law, judging from the treatment of the second paragraph of Article 52 of the new Company Law, we believe that shareholders who lose their rights should not be allowed to escape their due liability for capital contribution.
Article 52, paragraph 2, of the new Company Law adopts three methods for the disposal of shares after the loss of rights by the shareholders, namely, the transfer of shares, the reduction of capital and the transfer of other shareholders. According to the disposal method 1, if it is an equity transfer, according to the provisions of the second paragraph of Article 88 of the new Company Law, if a shareholder who fails to pay the capital contribution on the date specified in the company's articles of association transfers the equity, the transferor and the transferee shall bear joint and several liability within the scope of insufficient capital contribution, let the losing shareholders bear joint and several liability. According to the second capital reduction method of disposal, the corresponding capital reduction procedures shall be carried out in strict accordance with the provisions of Article 224 of the new Company Law, and creditors shall be notified that if the illegal capital reduction is in accordance with Article 226 of the new Company Law, they shall be liable for compensation. At the same time, according to the relevant provisions of Article 17, paragraph 2, of the Judicial Interpretation III of the Company Law: "Under the circumstances specified in the preceding paragraph, the people's court shall explain, the company shall promptly go through the statutory capital reduction procedures or have other shareholders or third parties pay the corresponding capital contributions. Before going through the statutory capital reduction procedures or other shareholders or third parties to pay the corresponding capital contributions, the people's court shall support the request of the company's creditors to the relevant parties to bear the corresponding responsibilities in accordance with Article 13 or Article 14 of these Provisions." We believe that even if it is treated as a capital reduction, the losing shareholders should still bear the corresponding responsibility for the debts before the capital reduction procedure is completed. According to the last disposal method, the transfer of other shareholders within the company is actually similar to the transfer of shares, which will not be repeated here.
The connection and comparison between 4. and other systems
The convergence and application of the (I) collection system and the accelerated maturity system.
The collection loss system and the accelerated maturity system are set up to maintain the company's capital enrichment system, from the meaning of the interpretation, the capital contribution obligation to accelerate the maturity of the equity is the payment but not the capital contribution period of the equity, at the request of the company or creditors, whether it can fall into the scope of application of the collection loss right. In our view, from the point of view of the system logic, the period of capital contribution stipulated in the articles of association of the company should also be changed at the same time after the acceleration of the capital contribution obligation, if the shareholders can not complete the capital contribution obligation at this time, it can constitute "the shareholders failed to pay the capital contribution on time", and apply the collection loss system, thus producing the corresponding legal consequences.
Comparison between the (II) collection system and the delisting system
Both are to make shareholders who fail to pay their capital contributions in full and on time lose their corresponding shareholder rights. The system of collection loss is only applicable to the failure of shareholders to pay the capital contribution stipulated in the articles of association in full and on time. The de-listing system applies to two situations, one is that the shareholders fail to fulfill their capital contribution obligations, and the other is that the shareholders withdraw all their capital contributions. Under the system of collection and loss of power, the resolution of collection and loss of power is made by the board of directors, which requires a grace period of not less than 60 days. Under the delisting system, the company disqualifies shareholders by resolution of the shareholders' meeting, and does not provide for a reasonable period of time for reminders, so in the actual performance process, the collection system is more operable. Under the collection system, shareholders who fail to pay their capital in full and on time lose their part of their equity, not all of their equity. Under the delisting system, the shareholders involved are effectively completely disqualified as shareholders.
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