Viewpoint... Whether the non-paid shareholders are still liable for capital contribution after the transfer of equity.
Published:
2020-12-15
Recently, when discussing the facts of a case with my colleagues, it involved both the real debt of the shares and the issue of whether the unpaid shareholders should bear the relevant capital contribution responsibility after the transfer of their shares. The relevant legal issues triggered my thinking.
First of all, after the transfer of shares by the unpaid shareholder, does the creditor of the company have the right to require the shareholder to bear the responsibility for the capital contribution?
To solve this problem, the first thing to look at the shareholders' capital contribution period, the shareholders of the company in accordance with the provisions of the articles of association for the capital contribution is a capital contribution period. This period of capital contribution can be relatively freely stipulated by shareholders in the articles of association of the company, which is also the reason for the emergence of "sky-high companies", "one-dollar companies" and the emergence of such as 50 years, 100 years, or even hundreds of years after the payment of registered capital.
(2019) Civil Judgment No. 230 of the Supreme Law of the People's Republic of China states that Article 28 of the the People's Republic of China Company Law stipulates that shareholders shall pay in full and on time the amount of capital contributions they have paid as stipulated in the articles of association of the company. Shareholders enjoy the "term interest" of capital contribution, and the creditors of the company have the opportunity to examine whether to conduct a transaction with the company on the basis of reviewing the credit information such as the time of capital contribution of the shareholders of the company, and the creditors' decision on the transaction shall be subject to the time of capital contribution of the shareholders. The Supreme People's Court on the application<中华人民共和国公司法>The "failure to perform or fully perform the obligation of capital contribution" stipulated in Article 13, paragraph 2, of the (III) on Certain Issues shall be understood as "failure to pay or fully pay the capital contribution", and shareholders whose capital contribution period has not expired and have not fully paid their share of capital contribution shall not be deemed as "failure to perform or fully perform the obligation of capital contribution". In this case, when Feng Liang and Feng Dakun transferred all the equity, the capital contribution period of the subscribed equity has not expired, which does not constitute Article 13, paragraph 2, of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" The situation of "transferring equity without fulfilling or fully fulfilling the obligation of capital contribution" as stipulated in Article 18.
In summary, a shareholder who has not reached the time limit for the paid-in capital contribution at the time of the equity transfer is generally not liable, as there is no violation of the provisions of the Articles of Association and the provisions of the capital contribution obligations.
Whether there are exceptions. The Ninth Minute has provisions on the accelerated maturity of capital contributions, article 6 of which provides that shareholders enjoy term benefits under the registered capital contribution system. 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 (large) will decide or otherwise extend the period of shareholders' capital contribution.
That is, the Ninth Minute proposes two exclusions while protecting the interests of the shareholders' term, in which case they are subject to supplementary liability even if the term of the capital contribution is not expired. Whether the shareholders of the unexpired capital contribution period include the original transferring shareholders of the unexpired capital contribution period. The author thinks that if it depends on whether the original transferor is the promoter or original shareholder of the company, if not, it is not restricted by this clause, that is, it does not belong to the scope of the shareholders who have not reached the time limit for capital contribution in this article. If it is the promoter or original shareholder of the company, according to the third paragraph of Article 13 of the judicial interpretation of the company law, "shareholders have not performed or fully performed their capital contribution obligations when the company was established, if the plaintiff who brings a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company to bear joint and several liability with the defendant shareholder, the people's court shall support it; after the promoter of the company has assumed the liability, it may recover compensation from the defendant shareholder." This actually imposes a stricter restriction on the promoter of the company than limited liability. You can refer to (2017) Chang Juying, No. 1433 of the Supreme Fa Minshen, Puyang Guangjian Construction Group Co., Ltd. Civil Ruling Letter on Retrial Review and Trial Supervision of Construction Contract Disputes, (2016) Guangdong Xinghua Industrial Co., Ltd. and Pan Rirong Shareholder Dispute Case of Guangdong Minshen 5766. The above cases all believe that although the original shareholder transferred his equity, his obligation to contribute is not exempted due to the loss of shareholder's identity, the creditors of the company shall still have the right to request the transferring shareholders to fulfill their capital contribution obligations. In this case, it actually means that it should bear supplementary liability.
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