Viewpoint... The determination and analysis of the joint and several liability of shareholders who are lazy in fulfilling their liquidation obligations.
Published:
2024-05-28
This paper combs through the legal provisions on shareholders who are idle in fulfilling their liquidation obligations, which are included as a kind of tort liability.
Brief of the case
Li mou 1 and Li mou 2 are shareholders of jinyu company's industrial and commercial registration. in 2021, jinyu company's business license was revoked and has not been liquidated since then. The plaintiff Wang Mou has the due and unpaid creditor's rights to Jinyu Company. Now he has sued the defendants Li Mou 1 and Li Mou 2 to the court, demanding that the two defendants bear the liability for the failure of Jinyu Company to liquidate due to the failure to fulfill the liquidation obligation, thus causing the plaintiff's creditor's rights to be unable to realize.
Referee Results:The court held that Li 1 and Li 2, as shareholders of industrial and commercial registration, were obliged to set up a liquidation group for liquidation within the statutory time limit. However, according to Article 18 of Interpretation II of the Company Law, in this case, the plaintiff did not submit evidence to prove that Li 1 and Li 2 did not set up a liquidation team within the statutory time limit for liquidation, resulting in the devaluation, loss, damage or loss of the company's property, nor did they submit evidence to prove that due to their failure to perform their obligations, the company's main property, account books, important documents, etc. were lost and could not be liquidated. The plaintiff demanded that the defendant be liable for compensation for the debts of Jinyu Company if Jinyu Company was not liquidated. The court did not support it and rejected the plaintiff's claim.
legal analysis
The legal provisions of 1. shareholders who are lazy in fulfilling their liquidation obligations.
The above case is the successful judgment that the author has just received recently. As shown in the legal provisions on the liquidation obligor of the company and its liquidation obligations, please refer to Article 18 of the Judicial Interpretation II of the Company Law. The liquidation obligor of a limited liability company is a shareholder, while the directors and controlling shareholders of a joint stock limited company. If the above subjects fail to set up a liquidation group within the legal time limit to start liquidation, resulting in devaluation, loss, damage or loss of the company's property, if a creditor claims that it is liable for the company's debts to the extent that it causes losses, the people's court shall support it in accordance with the law. In addition, if the above-mentioned subjects are negligent in fulfilling their obligations, resulting in the loss of the company's main property, account books, important documents, etc., and cannot be liquidated, the people's court shall support the creditor's claim that it is jointly and severally liable for the company's debts.
In addition, in the fifth part of the Minutes of the National Court Civil and Commercial Trial Work Conference, the liability of the liquidation obligor of a limited liability company is also explained, and it is pointed out that the nature of the liquidation liability of the shareholders of a limited liability company is the tort liability that the company should bear due to the failure of the shareholders to perform the liquidation obligation. That is to say, in practice, when judges examine whether they should bear the responsibility of "neglecting to fulfill the obligation of liquidation", they mainly analyze the tort, subjective fault, damage result and causality.
The constituent elements of the 2. shareholder's delay in fulfilling the liquidation obligation.
Illegal acts of (I) shareholders
1. Failure to set up a liquidation group for liquidation within the statutory time limit
Article 183 of the Company Law stipulates that a liquidation group shall be established within 15 days from the date of the occurrence of the cause of dissolution to commence liquidation. Accordingly, the failure to establish a liquidation group on time for self-liquidation has constituted an illegal act.
2. No application for compulsory liquidation
Shareholders are required to prove that they have applied for compulsory liquidation or have made substantial efforts to fulfill their liquidation obligations, otherwise the judge will generally find that the shareholders are negligent in fulfilling their liquidation obligations in judicial decisions.
3, did not reasonably keep the company's main property, books, important documents.
According to the second paragraph of Article 18 of the "Judicial Interpretation II of the Company Law", shareholders have the obligation to keep the company's main property, account books, and important documents.
4. Long-term inability to complete liquidation without justifiable reasons
In judicial practice, the liquidation obligation of shareholders is not only limited to the initiation of the liquidation procedure, if the liquidation is delayed after the start, or even far beyond a reasonable period of time, for several years has not been completed, and reasonable reasons cannot be proved, the judicial decision will also be found to be idle in fulfilling the liquidation obligation.
Subjective Fault of (II) Shareholders
In judicial practice, the principle of presumption of fault is generally used to determine that the shareholder is negligent in fulfilling the liquidation obligation, that is, the creditor only needs to prove that the shareholder has not fulfilled the liquidation obligation, and if the shareholder cannot prove that he is not at fault by adducing counter-evidence at this time, the illegal act is established. If shareholders want to prove that they are not at fault, they can refer to the provisions of the Minutes of the National Court Civil and Commercial Trial Conference, "Shareholders prove that they have taken active measures to fulfill their liquidation obligations, or minority shareholders prove that they are neither members of the board of directors or the board of supervisors of the company, nor have selected personnel to serve as members of the organ, and have never participated in the operation and management of the company, on the grounds that it does not constitute a failure to fulfill obligations, if it is argued that it should not be jointly and severally liable for the company's debts, the people's court shall support it in accordance with the law".
Result of damage caused by (III)'s failure to perform liquidation obligations
The damage caused by the failure of shareholders to fulfill their liquidation obligations is reflected in the fact that their actions lead to the devaluation, loss, destruction or loss of the company's property, or the loss of important documents of the company and thus the loss of liquidation, thus losing the interests of creditors. In the case placed at the beginning of the article, the trial judge dismissed the creditor's claim because the creditor did not submit evidence to prove the damage result, which shows that the damage result is essential to determine whether it constitutes such tort liability.
(IV) causality
In judicial practice, there are generally the following defense ideas for causation: 1, the company's books, important documents, etc. have long been lost. If there is a fire in the financial room during the company's operation, important documents have been burned down. 2. Before the cause of liquidation, the company was already heavily indebted, insolvent and had no property to pay off. For example, shareholders can provide evidence such as court judgment documents, audit reports, bankruptcy liquidation work reports, and the implementation of other cases to prove that the company was already in debt, insolvent, closed, and had no property to enforce before its business license was revoked. There is no causal relationship between whether it fulfills its liquidation and custody obligations and the creditor's claims losses that have not been paid off.
Summary
This paper combs through the legal provisions on shareholders who are idle in fulfilling their liquidation obligations, which are included as a kind of tort liability. It is also worth noting that the new Company Law, which will come into effect on July 1, has made adjustments to the liquidation obligors of legal persons, unifying the liquidation obligors of limited liability companies and joint stock limited companies as directors. It is foreseeable that this adjustment will bring new problems and disputes in practice. However, whether it is a shareholder or a director, the legal basis of its liability as a liquidation obligor will not change, so the discussion of this paper can also provide some experience for subsequent litigation.
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