Viewpoint... An analysis of the liability of shareholders for the company's debt.

Published:

2022-06-17

1. Introduction The failure of shareholders to fulfill their capital contribution obligations refers to the behavior of the shareholders of the company who fail to fulfill their capital contribution obligations or fail to fully fulfill their capital contribution obligations in accordance with the articles of association of the company. Shareholders who have not fulfilled their capital contribution obligations violate the principle of capital enrichment of the company, which not only harms the interests of the company, but also infringes the interests of other shareholders and creditors of the company, thus affecting the normal development of the company's business. In judicial practice, the case of the company's creditors suing the shareholders who have not fulfilled the obligation of capital contribution to bear the supplementary liability occurs from time to time, especially after the enterprise capital is changed from the original paid-in system to the payment system, the shareholders' insufficient capital contribution, overdue capital contribution, false capital contribution, evasion of capital contribution and other acts have increased, which leads to more special legal problems. The third interpretation of the company law gives the creditors of the company the right to investigate the capital contribution liability of the shareholders who have not fulfilled their capital contribution obligations, rather than the right of subrogation. Article 13 clearly stipulates that the creditors of the company have the right to request the shareholders who have not fulfilled their capital contribution obligations to bear supplementary compensation liability for the part of the company's debts that cannot be paid within the scope of the company's liability property, it is an asset that creditors can expect, which gives creditors a legitimate right to make up their contributions. In the previous article, "The limitation of the company's surplus distribution right of shareholders who have not fulfilled their capital contribution obligations", the author briefly analyzes the limitation of the company's surplus distribution right of shareholders who have not fulfilled their capital contribution obligations, and this article will mainly discuss the liability of such shareholders for the company's debts. 2. relevant laws and regulations (I) Company Law Interpretation II Article 22 When a company is dissolved, any capital contribution that has not been paid by the shareholders shall be treated as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid their capital contributions, as well as other shareholders or promoters at the time of the establishment of the company, shall bear joint and several liability for the debts of the company within the scope of the unpaid capital contributions. (II) Company Law Interpretation III The second paragraph of Article 13 stipulates that if the creditors of the company request the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to bear supplementary compensation liability for the unpayable part of the company's debts within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; if the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already assumed the above-mentioned responsibilities, the people's court shall not support the same request. The second paragraph of Article 14 stipulates that the shareholders of the company's creditors who request to withdraw capital contributions shall bear supplementary compensation liability for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawn capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions If the controller assumes joint and several liability for this, the people's court shall support the shareholder who has already assumed the above-mentioned responsibilities and other creditors make the same request. Article 18 stipulates that 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, At the same time, the people's court shall support. (III) enterprise bankruptcy law Article 35 stipulates that after the people's court accepts the bankruptcy application, if the debtor's contributor has not fully fulfilled its capital contribution obligations, the administrator shall require the contributor to pay the capital contribution paid, without being limited by the time limit of the capital contribution. (IV) Additional Provisions on Implementation of Changes Article 19 stipulates that the company as the person subject to execution has insufficient property to pay off the debts determined by the effective legal documents, and its shareholders transfer their equity if they fail to fulfill their capital contribution obligations in accordance with the law. The people's court shall support the application for the executor to change or add the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the provisions of the company law. Minutes of the Nine Minds in (V) Article 6 stipulates that 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 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. (VI) company law (revised draft) for comments Article 48 stipulates that if a company is unable to pay off its debts as they fall due and is manifestly insolvent, the company or its creditors shall have the right to require shareholders who have paid their capital contributions but have not paid their capital contributions in advance. 3. Focus Analysis Should the shareholders of the (I) defective capital increase bear supplementary compensation liability for the debts before the capital increase of the company? The view that shareholders should bear supplementary liability for the claims formed after the capital increase is not controversial in judicial practice, but there are two views in practice as to whether shareholders should bear the debts before the capital increase of the company. The first view is that the company is only subject to supplementary liability for the debt after the capital increase, and the second view is that the time of the formation of the claim is not directly related to whether the shareholders should be liable. According to the Reply of the Executive Office of the Supreme People's Court on Whether Shareholders Should Be Responsible to the Company's Creditors for Defects in Capital Increase after the Establishment of the Company, shareholders with defective capital increase shall only bear corresponding responsibilities to the traders (creditors of the company) after the capital increase registration, and shall not be liable for the company's debts incurred in the transaction with the company before the capital increase. However, the Company Law Interpretation III, published thereafter, does not make special provisions on the timing of the defective capital increase, as the interpretation is of higher legal rank and is therefore preferred, I .e., the defective capital increase shareholders are liable for supplementary liability for the company's debts regardless of when they are formed. Can (II) creditors request shareholders who have not reached the end of the capital contribution period to fulfill their capital contribution obligations in advance? First of all, Article 35 of the Enterprise Bankruptcy Law clearly stipulates that in the case of bankruptcy, if the capital contribution of shareholders is accelerated to expire, and after the people's court accepts the bankruptcy application, the debtor's capital contribution has not fully fulfilled its capital contribution obligations, the administrator shall require the capital contribution to be paid by the capital contribution, without being limited by the time limit of the capital contribution. Secondly, in the case of dissolution, there is also a corresponding legal basis for the accelerated maturity of shareholders' capital contributions. Article 22 of Interpretation II of the Company Law clearly stipulates that when the company is dissolved, the outstanding capital contributions of shareholders shall be regarded as liquidation assets. As to whether the accelerated maturity system is applicable to the non-bankruptcy liquidation stage, there is no unified conclusion of judicial decisions because there are no clear laws and regulations or judicial interpretations. Among them, there are two main bases for holding a positive attitude: first, the period of shareholders' capital contribution is an agreement between the company and the shareholders, and cannot be opposed to a third party other than the two; second, Article 6 of the Jiumin Minutes has added two situations in which shareholders' capital contribution is accelerated under the subscription system, and its normative intention is to better protect the interests of creditors. The negative attitude is based on the fact that the Company Law does not clearly stipulate the accelerated maturity system of shareholders' contributions in the case of non-bankruptcy liquidation stage, and it is not appropriate to expand the interpretation of the provisions of the law on "unfulfilled or incomplete capital contributions"; moreover, individual liquidation in the case of bankruptcy or dissolution is not conducive to the fair liquidation of all creditors. Article 48 of the newly published Company Law (Revised Draft) for comments in December 2021 further clarifies the provisions of the Nine People's Minutes on the accelerated maturity of shareholders' contributions in non-bankruptcy situations, making it a legislative norm and directly clarifying that the judgment standard for accelerated maturity of shareholders' contributions in the non-bankruptcy stage is "the company cannot pay off its due debts and obviously lacks solvency", which is more conducive to the protection of the interests of creditors. Should the original shareholders be liable for the debts of the (III) if the shareholders transfer their shares without fulfilling their capital contribution obligations? According to Article 18 of the interpretation III of the company law, if the shareholders who fail to fulfill the obligation of capital contribution transfer their equity, if the original shareholders know or should know, they shall bear the obligation of capital contribution, because the paid in capital contribution can be inquired through the national enterprise credit information publicity system, etc., so according to the above provisions, the original shareholders and the transferee shall bear joint and several liability for this. At the same time, Article 19 of the Additional Provisions on Changes in Implementation also stipulates that at the stage of implementation, creditors may add that the original shareholders who have not fulfilled their capital contribution obligations in accordance with the law, that is, the transfer of equity, shall be the executed person. However, if the shareholder's capital contribution is not due at the time of equity transfer, can the creditor request the transferring shareholder to take responsibility for the company's debts? There are three views on this issue in the theoretical and judicial practice circles. The first point of view is that the creditor cannot claim rights against the transferring shareholder, because the transferring shareholder's capital contribution is flawless and the fact of the transfer has been registered and publicized; the second point of view is that the creditor can claim that the transferring shareholder shall bear joint and several liability. The "failure to perform or fully perform the obligation of capital contribution" stipulated in Article 18 of the Interpretation III of the Company Law includes "the period of unexpired capital contribution"; The third point of view, the original shareholders shall bear joint and several liability, otherwise, the original shareholders shall not bear joint and several liability. In judicial practice, there are also some cases that the Company Law Interpretation III was promulgated in 2011, when the capital contribution system had not yet been implemented, so Article 18 does not apply to the original shareholders who have not fulfilled their capital contribution obligations to transfer shares. Yang Linping, then president of the Second Civil Division of the Supreme People's Court, also proposed in the Supreme People's Court on Several Specific Issues in Current Commercial Trial Work that Article 18 of the Judicial Interpretation of the Company Law is to make up for the civil liability of capital contributions when false capital contributions are made. At present, there is no law or judicial interpretation to clearly stipulate who shall bear the responsibility for the transfer of equity when shareholders fail to pay their capital contributions because the capital contribution period has not expired. Because the unpaid contribution at this time is legal rather than illegal, the provisions of the above judicial interpretation cannot be applied of course. It can be seen that the Supreme Court's decision is more inclined to the first view, that is, the original shareholders in the case of the capital contribution period has not yet expired, that is, only the current shareholders of the outstanding capital contribution period to bear supplementary liability for the company's unliquidated debts. 4. related cases (I) Case 1:(2019) Chuan 01 Min Zhong No. 15335 Basic case: In 2007, Times Company sued Sichuan Construction Company for a dispute over a construction contract. The court finally ordered Sichuan Construction Company to pay 400000 yuan to Times Company. In 2015, Sichuan Construction Company held a shareholders' meeting and made a resolution to increase the company's registered capital from 10 million yuan to 20 million yuan. The increased registered capital of 10 million yuan was contributed by shareholder Gao Yuan in cash, and the subscription time was December 31, 2016. Before. In 2019, Plaintiff Times Company sued Defendant Highland Compensation Times Company for project payments, interest on funds for overdue payments, case acceptance fees and its litigation costs. The court of first instance (Chengdu Qingyang District People's Court) held that: Plateau is a shareholder of Sichuan Construction Company, its capital increase subscription time has expired, Plateau should fulfill the obligation of shareholder capital contribution. Although the debt involved in the case occurred before the plateau's capital increase, the plateau's failure to fulfill its capital contribution obligations violated the company's capital maintenance principle and posed a greater threat to the interests of the company's creditors. The current Sichuan Construction Company's assets are not enough to pay off the company's creditor's rights. The Times Company has the right to request the shareholder Plateau to bear the liability for compensation. Therefore, the Times Company has the right to claim the 200000 yuan for the project payment and the interest occupied by the overdue payment of the company. The court of second instance (Chengdu intermediate people's Court of Sichuan Province) held that the facts of the first instance judgment were clear, the applicable law was correct, and should be maintained. (II) Case 2:(2017) Zhejiang Min Shen No. 1111 The basic case: after the effective judgment, kangrun washing company owed the plaintiff Miao fugao 50400 yuan. after entering the execution termination procedure because kangrun washing company had no property to execute, miaofugao filed a lawsuit demanding ye mankang and other three shareholders to bear joint and several supplementary liability for the amount owed by kangrun washing company to the extent that the company did not make capital contribution. After examination, Congrun Washing Company was established on July 24, 2014. According to the articles of association of the company, the registered capital of the company is 500000 yuan, with Ye Mankang and Xu Fengyong each contributing 150000 yuan, Xie Baojin contributing 200000 yuan, and the three shareholders contributing before December 31, 2054. On August 18, 2014, Ye Mankang and Xu Fengyong transferred their shares to Xie Baojin, and then went through the industrial and commercial change registration procedures, but the revised articles of association did not change the time for shareholders to subscribe for capital contributions. The Court of Second Instance (Zhoushan Intermediate People's Court) held that: According to Article 26 of the the People's Republic of China Company Law as amended in 2013, the registered capital of a limited liability company is the amount of capital contribution paid by all shareholders registered with the company registration authority. The period of capital contribution subscribed by the shareholders of Congrun Washing Company is before December 31, 2054, before which the shareholders do not need to actually make capital contributions. As a creditor of the company, it has no right to require the shareholders of the company to assume the responsibility of performing the capital contribution. Only in the event of the dissolution of the company, bankruptcy and other statutory circumstances, the shareholders of the contribution of the obligation to accelerate the expiration of the company's creditors in accordance with the Supreme People's Court on the application.<中华人民共和国公司法>若干问题的规定（三）》第十三条第二款的规定，要求未履行或者未全面履行出资义务的股东在未出资本息范围内对公司债务不能清偿的部分承担补充赔偿责任。据此，判决驳回苗福高的诉讼请求。   再审法院（浙江省高级人民法院）认为：一、二审法院驳回苗福高的诉讼请求并无不当。   （三）案例三：（2021）京02民终17362号 基本案情：被告庄惟嘉系第三人亚太迈思公司的股东，经生效判决，亚太迈思公司应付东莞祥丰公司18.2万元货款，因亚太迈思公司未履行判决确定的义务，东莞祥丰公司向法院申请强制执行，执行过程中，东莞祥丰公司又提出执行异议，主张庄惟嘉作为亚太迈思公司的原股东未履行出资义务，申请追加庄惟嘉为案件的被执行人，在其认缴未实缴106万元的出资范围内承担清偿责任，庄惟嘉称其认缴出资期限为2044年，且于2018年开始与李茂盛洽谈股权转让事宜，在向李茂盛转让股权时，已向其告知亚太迈思公司的涉诉情况，亚太迈思公司在双方进行股权转让时除货物外没有其他资产，故庄惟嘉以8万元的价格将股权转让给了李茂盛，故不同意</中华人民共和国公司法>

Key words:

Capital contribution, company, shareholder, commitment, obligation, responsibility, performance, creditor, transfer.