The company's litigation study....................................................................................
Published:
2020-12-09
In practice, it is not uncommon for shareholders to damage the interests of the company's creditors, and this paper focuses on the analysis and elaboration of the supplementary liability brought by the creditors to the defective capital contribution shareholders for the reader's reference.
1. [link to the law]]
Article 20 of the the People's Republic of China Company Law
[Prohibited acts by shareholders] The shareholders of the company shall abide by laws, administrative regulations and the articles of association of the company, exercise their rights as shareholders in accordance with the law, and shall not abuse their rights to harm the interests of the company or other shareholders; they shall not abuse their independent status as legal persons 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.
(III) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law
Article 12 [Evasion of Capital Contribution] After the establishment of a company, the people's court shall support the request of the company, shareholders or creditors of the company to determine that the shareholder has evaded capital contribution on the ground that the relevant shareholder's behavior conforms to one of the following circumstances and damages the rights and interests of the company:
(I) the production of false financial accounting statements to increase profits for distribution;
The (II) transfers its capital contribution through fictitious creditor's rights and debts;
(III) the use of related transactions to transfer capital contributions;
(IV) other acts of withdrawal of capital contributions without legal procedures.
Article 13 [Untrue Capital Contribution] 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 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders.
2. Typical Case]
Lego Group, Guodian Company and Leshi Company: Case of Dispute over Execution of Objection by Outsiders (2018 Jin Min Zhong No. 423)
Brief of the case:
In the case of dispute over goods transportation contract between Guodian Company and Leshi Company, the court of first instance issued a civil judgment (2017) Jin 72 min Chu 449, which ruled that 1. Leshi Company shall pay Guodian Company 560812 yuan of freight within 10 days from the effective date of the judgment. 2. Leshi Company shall pay Guodian Company demurrage fee 176203.12 yuan within 10 days from the effective date of the judgment; 3. Leshi Company pays Guodian Company the liquidated damages for the above-mentioned 1. and two amounts (from March 16, 2016 to the date of actual performance within the payment period determined by the judgment, calculated at the loan interest rate of the People's Bank of China for the same period). The judgment has taken legal effect. The case went into enforcement because Le's failed to comply with its obligations under the legal instruments in force.
After that, Guodian Company applied to the court of first instance on March 16, 2018 to add Lego Group as the executor of the above case. After examination, the court of first instance issued (2018) Jin 72 Zhiyi No. 19 execution ruling on April 20, 2018, adding Lego group as the person to be executed and assuming the responsibility for payment within the scope of unpaid capital contribution.
Lego Company was established on July 15, 2014. The company type is a limited liability company wholly owned by natural persons. Its legal representative is Lego Group, with a registered capital of 10000000 yuan. Currency contribution accounts for 100 of the registered capital. Lego Group has subscribed to contribute 10000000 yuan. The mode of contribution is currency. The time of contribution is July 20, 2016. After Le's company on July 18, 2016 to amend the articles of association, the name of shareholders, the amount of capital contribution, the mode of capital contribution and the proportion of capital contribution remain unchanged, the time of capital contribution will be changed to July 20, 2026.
Lego Group believes that: (1) Lego Group's transfer of Lego's equity is legal and effective, and there is no "failure to fulfill its capital contribution obligations in accordance with the law. According to the articles of association of Le's company and its amendments, the company has a registered capital of 10 million yuan, and the time of contribution is July 20, 2026, which is not yet the time of contribution. (II) the period when Lego Group was the shareholder and legal representative of Lego, there was no financial mixing with the company, and the judgment of the first instance required it to bear joint and several liability for the company's debts during the operation period lacked a legal basis.
Guodian Company believes that: (1) Lego Group shall be jointly and severally liable for the debts of Lego Company in accordance with the law. Relevant evidence shows that the company has not fulfilled its capital contribution obligations to the company at the time of the transfer of shares. The Lego group's claim that it is not time to contribute is purely an excuse to avoid debt. (II) Lego Group has no evidence to prove the independence of its personal property from the company's property during the period from the establishment of Lego to the transfer of equity, it shall be jointly and severally liable for the debts of Lego.
Referee's view:
The focus of the case: in the case of Lego's company can not pay off the debts due, as a shareholder of Lego group did not actually pay the capital contribution that is the transfer of equity, should be added as the executor.
Article 3, paragraph 2, of the the People's Republic of China Company Law stipulates that "the shareholders of a limited liability company shall be liable to the company to the extent of the amount of capital contribution they have paid". The first paragraph of Article 28 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" and "if the shareholders make capital contributions in currency, they shall deposit the full amount of the capital contribution in the bank account opened by the limited liability company". In accordance with the above provisions, the establishment of a limited liability company to implement the registered capital contribution system, although the shareholders can decide how to pay the capital contribution in accordance with the articles of association, but regardless of the one-time payment or installment payment, should be paid in full on time. As a shareholder of Lego Group at the time of its establishment, Lego Group is obliged to pay its capital contribution in full. Article 13, paragraph 2, of the (III) of the Supreme people's Court on the Application of the the People's Republic of China Company Law stipulates: "if the creditors of the company request shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to bear supplementary 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. Shareholders who have failed or fully fulfilled their capital contribution obligations have already assumed the above-mentioned responsibilities, if other creditors make the same request, the people's court will not support it." In accordance with this provision, Lego Group is obliged to pay its capital contribution in full prior to the transfer of Lego's equity. The change in the time of shareholders' contribution in the articles of association of Leo shall not oppose the claim of Guodian Company. In this case, the signing and performance of the contract involved in the civil judgment as the basis for execution and the litigation of the case all occurred during the period when Lego Group was operating Lego's company, so when Lego Group's property was insufficient to pay off the debts due, Lego Group, as a shareholder who had not yet paid its full capital contribution, should be liable to the extent that the capital contribution was not made in accordance with the law.
3. [Lawyer Summary]]
According to the first and second paragraphs of Article 13 of the (III) for Judicial Interpretation of the Company Law: "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". At this time, shareholders who have not fulfilled their capital contribution or have not fully fulfilled their capital contribution obligations shall bear supplementary 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, and the supplementary liability shall not be affected by whether the payment period has not been reached. In addition, the supplementary liability shall be assumed on the premise that the company's debts cannot be paid off.
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