Viewpoint... The judicial determination of the accelerated maturity of shareholders' contributions.
Published:
2023-12-28
Brief of the case
Plaintiff A company v. defendant B company infringement trademark dispute case, the court ruled that the defendant to stop the infringement and bear the liability for compensation. Because Defendant B Company failed to fulfill the obligations determined by the effective judgment, Company A applied to the court for enforcement. After the court inquired, no property available for enforcement was found, and the execution was terminated. Company A requested to add Zhu Moumou and Ni Moumou, two shareholders of Company B, as the enforcers in this case. The court ruled not to add them. Company A refused to accept the ruling and filed a lawsuit in this case. Request the court to add Zhu Moumou and Ni Moumou as the enforcers of the execution case according to law, and judge Zhu Moumou and Ni Moumou to bear the debts of Company B. Zhu and Ni did not provide any reply.
After trial, it was found that the defendants Zhu Moumou and Ni Moumou paid in 63000 yuan and 37000 yuan respectively in 2015, and their uncontributed contributions were 37.737 million yuan and 22.163 million yuan respectively.
Judgment Matters
The court, in accordance with the Supreme People's Court's Rules on the Application of<中华人民共和国公司法>Article 13 of the (III) on Several Issues, and Articles 19 and 34 of the Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Execution, the judgment: 1. add defendants Zhu Moumou and Ni Moumou as the persons subject to execution in the execution case; The 2. defendants Zhu Moumou and Ni Moumou are respectively liable for supplementary compensation for the debts of Company B within the scope of unpaid contributions.
legal analysis
The "Minutes of the National Court Civil and Commercial Trial Work Conference" Law [2019] No. 254 stipulates that "6. Under the registered capital subscription system, shareholders shall enjoy time-limited 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 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 person subject to execution, 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 arise, the company's shareholders (general) will resolve Or extend the period of shareholder capital contribution by other means." In this case, Qingzhou Huayi Company has no property to execute, and the execution case has been terminated.
The court held that Company B had no property available for enforcement and the enforcement case had ended this enforcement. The people's court has exhausted the enforcement measures and the executed company has no property to enforce, has the reasons for bankruptcy, but does not apply for bankruptcy, and the period of interest in the shareholders' contribution has been lost and should be accelerated. At this time, the people's court shall support the request for additional shareholders of the company who have not actually fulfilled their capital contribution obligations as the executed person, and shall bear the corresponding liability within the scope of the unpaid capital contribution.
According to the attorney, the company is liable for the debts of the company with all its property, and all the property of the company consists of the capital contribution of all shareholders, including the part of the capital contribution that has been paid and the capital contribution that has not yet matured after the payment. When all the property of the company is not sufficient to pay off the debts due, the creditor requires the shareholders who have not paid the full capital contribution to bear the liability to pay off the company's debts, and does not violate the provisions of the shareholders to be liable to the company to the extent of the amount of capital contribution they have paid.
Relevant laws and regulations
Company Law of the the People's Republic of China (2018 Amendment)
Article 20 The shareholders of a company shall abide by the laws, administrative regulations and the articles of association of the company, exercise the rights of shareholders in accordance with the law, and shall not abuse the rights of shareholders to harm the interests of the company or other shareholders; they shall not abuse the independent status of the company as a legal person and the limited liability of shareholders to harm the interests of the company's creditors.
If a shareholder of a company abuses his rights as a shareholder and causes losses to the company or other shareholders, he shall be liable for compensation in accordance with the law.
If the shareholders of the company abuse the independent status of the company as a legal person and the limited liability of shareholders to evade debts and seriously harm the interests of the company's creditors, they shall bear joint and several liability for the debts of the company.
2, the Supreme People's Court on the application.<中华人民共和国公司法>(III) on Certain Issues
Article 13 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 fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it.
If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder.
If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 148 of the Company Law, the people's court shall support it; after the directors and senior managers bear the responsibilities, they may recover compensation from the defendant shareholders.
3. Provisions of the Supreme People's Court on Several Issues Concerning the Alteration and Addition of Parties in Civil Execution
Article 17 As a profit-making legal person subject to execution, the property is not enough to pay off the debts determined by the effective legal documents, and the applicant for execution applies for changes, additional shareholders, investors who have not paid or fully paid their capital contributions, or in accordance with the provisions of the Company Law Where the promoter who bears joint and several liability for the capital contribution is the person subject to execution, the people's court shall support it.
4. "Minutes of the National Court Civil and Commercial Trial Work Conference" Law [2019] No. 254
Article 6 Under the registered capital subscription system, shareholders shall enjoy the benefits of the term 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 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 person subject to execution, 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 meeting) Resolve or extend the period of shareholders' capital contribution by other means.
5. (I) of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Enterprise Bankruptcy Law
Article 1 If the debtor is unable to pay off the debts due and has one of the following circumstances, the people's court shall determine that it has the cause of bankruptcy:
(I) assets are insufficient to pay off all debts;
(II) is clearly lacking in solvency.
If the relevant parties claim that the debtor does not have the cause of bankruptcy on the grounds that the person jointly and severally liable for the debtor's debts has not lost its solvency, the people's court shall not support it.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
