Viewpoint... After the implementation of the new "Company Law", under the corporate payment system, can shareholders use "celebrity calligraphy and painting, antiques" and other price contributions?
Published:
2024-09-30
On the one hand, the new company law stipulates that the amount of capital contribution should be fully paid within five years, leaving the time limit for shareholders to make up the amount of capital contribution greatly shortened; on the other hand, when the company was originally established, it subscribed for capital contribution beyond the scope of strength. If monetary capital contribution is implemented, it is difficult to raise this amount in a short time, so the company's shareholders began to consider the physical capital contribution, and "celebrity paintings, antiques" and so on also belong to the physical, whether it belongs to the company law of the type of capital contribution?
Background
The new Company Law came into effect on July 1, 2024. The new "Company Law" has many bright spots in institutional innovation in many aspects, such as improving the company's capital system and corporate governance structure, strengthening the protection of shareholders' rights, and strengthening the responsibilities of controlling shareholders, actual controllers and directors, supervisors and senior executives. Article 7 clearly stipulates that "the amount of capital contribution subscribed by all shareholders shall be paid in full within five years from the date of establishment of the company in accordance with the provisions of the articles of association".
On the one hand, the new company law stipulates that the amount of capital contribution should be fully paid within five years, leaving the time limit for shareholders to make up the amount of capital contribution greatly shortened; on the other hand, when the company was originally established, it subscribed for capital contribution beyond the scope of strength. If monetary capital contribution is implemented, it is difficult to raise this amount in a short time, so the company's shareholders began to consider the physical capital contribution, and "celebrity paintings, antiques" and so on also belong to the physical, whether it belongs to the company law of the type of capital contribution?
Interpretation of relevant legal provisions
The issue of "celebrity paintings, antiques" funding involves the type of funding, I .e. whether assets other than currency can be valued for funding.
According to Article 48 of the New Company Law: "Shareholders may make capital contributions in currency, or in kind, intellectual property rights, land use rights, equity, creditor's rights and other non-monetary property that can be valued in currency and can be transferred in accordance with the law; however, except for property that may not be used as capital contributions as stipulated by laws and administrative regulations. The value of non-monetary property as a capital contribution shall be assessed, the property shall be verified, and the price shall not be overvalued or undervalued. Where laws and administrative regulations provide for valuation, they shall follow their provisions." According to the provisions of this article, it can be seen that "celebrity calligraphy, paintings and antiques" as physical objects can be contributed only if they meet "two conditions and one restriction". The "two conditions" refer to: first, they can be valued in currency; second, they can be transferred according to law; "one restriction" refers to whether the property is subject to the prohibitive restrictions of laws and administrative regulations. The specific analysis is as follows:
First,"Valuable in monetary terms" means that prices can be assessed by professional appraisal agencies or specified by authoritative agencies, so the reliable measurement of "celebrity paintings and antiques" assets through appraisal agencies is the key to the advancement of capital contributions.
Second,"Transferable according to law" means that the property rights or ownership of assets invested in kind should be transferred to the company according to law, specifically by means of "registration of ownership change" and "publicity of ownership transfer". The ownership of "celebrity calligraphy and painting and antiques" to be contributed by shareholders is changed to ensure that the company obtains the ownership and control of the real object, which is an important measure to follow the legal provisions and protect the normal operation of the company and shareholders' rights.
Third,What are the "prohibitive provisions of laws and administrative regulations"? As a type of cultural relics, the circulation and trade of objects such as "celebrity calligraphy, paintings and antiques" should be restricted by the the People's Republic of China Law on the Protection of Cultural Relics. According to the relevant provisions of the "the People's Republic of China Cultural Relics Protection Law", the state has strict regulations and measures for the protection, management and utilization of cultural relics. The cultural relics owned by the state are protected by law and cannot be sold or traded at will. If "celebrity calligraphy and paintings, antiques" and other physical objects are identified as state-owned cultural relics, it means that they are part of state-owned assets, their ownership belongs to the state, and no unit or individual may illegally possess, trade or transfer in other ways. Under special circumstances, the state may properly manage and allocate cultural relics according to the needs of cultural relics protection and utilization. For example, state-owned public welfare collection units can enjoy the tax exemption policy to promote the return and protection of cultural relics, but this does not mean that state-owned cultural relics can be funded or bought and sold, but to ensure the safety of cultural relics and comply with relevant laws and regulations. Under the premise, make rational use.
In addition, the state also encourages social forces to participate in the protection of cultural relics, including the protection and utilization of cultural relics collected by the people. However, even cultural relics collected by the people need to abide by the laws and regulations of the state, and shall not illegally trade cultural relics prohibited by the state. Therefore, there is a greater legal risk for shareholders to use "celebrity paintings, antiques" and other physical contributions.
When it is understood that "celebrity calligraphy and painting, antique" meets the standard of "two conditions and one restriction", another question arises: what are the responsibilities of shareholders or Dong Jiangao when "celebrity calligraphy and painting, antique" is not worthy of its name and overestimates its value?
First,At the time of the establishment of the company, if the actual amount of capital contribution of the shareholder's non-monetary property is significantly lower than the amount of capital contribution paid, the shareholder shall have the obligation to make up the capital contribution.
Second,After the establishment of the company, the board of directors of the company has the obligation to verify the shareholders' capital contribution. If it is found that the shareholders' capital contribution is not true, the board of directors has the obligation to urge the shareholders' capital contribution in writing. If the company fails to fulfill the obligation of urging, the responsible director shall bear the liability for compensation.
Lawyer Advice
When making capital contributions, enterprise shareholders should try their best to adopt the most direct and easy-to-verify capital contributions such as currency, land and equity. If they choose "celebrity calligraphy and painting, antiques" to make capital contributions, they should also comprehensively consider their legal risks, market risks, identification difficulties, value fluctuations, preservation conditions and other factors to prevent the contributing shareholders or enterprises from falling into legal risks.
Relevant Articles
Company Law of the the People's Republic of China (2023 Revision)
Article 48:Shareholders may make capital contributions in currency, or in kind, intellectual property rights, land use rights, equity, creditor's rights and other non-monetary property that can be valued in currency and can be transferred according to law, except for property that may not be used as capital contributions as stipulated by laws and administrative regulations.
The value of non-monetary property as a capital contribution shall be assessed, the property shall be verified, and the price shall not be overvalued or undervalued. Where laws and administrative regulations provide for valuation, such provisions shall be followed.
the People's Republic of China Cultural Relics Protection Law (2017 Amendment)
Article 5:All cultural relics remaining underground, in the internal waters and in the territorial waters of the People's Republic of China shall belong to the State.
Ancient cultural sites, ancient tombs and cave temples belong to the state. Unless otherwise stipulated by the State, immovable cultural relics such as memorial buildings, ancient buildings, stone carvings, murals and representative buildings of modern and contemporary times, which are designated by the State for protection, shall be owned by the State.
The ownership of state-owned immovable cultural relics shall not be changed by the change of the ownership or use right of the land to which they are attached.
The following movable cultural relics are owned by the State:
(I) cultural relics unearthed within the territory of China, except as otherwise provided by the State;
Cultural relics collected and kept by (II) state-owned cultural relics collection units and other state organs, troops, state-owned enterprises and institutions;
Cultural relics collected and purchased by the (III) State;
Cultural relics donated to the state by (IV) citizens, legal persons and other organizations;
Other cultural relics that are owned by the State in (V) with the provisions of the law.
The ownership of movable cultural relics owned by the State shall not be changed as a result of the termination or alteration of their custody or collection units.
The ownership of state-owned cultural relics shall be protected by law and shall not be infringed.
Article 51:Citizens, legal persons and other organizations may not buy or sell the following cultural relics:
(I) state-owned cultural relics, except those permitted by the state;
(II) precious cultural relics in non-state-owned collections;
(III) murals, sculptures, building components, etc. in state-owned immovable cultural relics, except for murals, sculptures, building components, etc. in state-owned immovable cultural relics demolished in accordance with the law that do not fall under the provisions of paragraph 4 of Article 20 of this Law and should be collected by cultural relics collection units;
Cultural relics whose sources of (IV) do not conform to the provisions of Article 50 of this Law.
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