Viewpoint... The way for creditors to realize their claims is to cancel the company without paying the capital contribution.
Published:
2024-09-30
In business activities, it is sometimes encountered that shareholders write off the company without paying their capital contributions, which poses a challenge to creditors to realize their claims. The following will elaborate on how creditors realize their claims and analyze them in the light of actual cases.
In business activities, it is sometimes encountered that shareholders write off the company without paying their capital contributions, which poses a challenge to creditors to realize their claims. The following will elaborate on how creditors realize their claims and analyze them in the light of actual cases.
The way for 1. creditors to realize their claims.
(I) to investigate company liquidation
1. Review of the legality of liquidation proceedings
Creditors should first pay attention to whether the liquidation procedure at the time of the company's cancellation is in accordance with the law. When the company is dissolved and liquidated, the liquidation group shall notify the creditors within ten days from the date of its establishment, and make a public announcement in the newspaper within 60 days. If the liquidation group fails to perform the obligation of notice and announcement in accordance with this provision, resulting in the creditor failing to declare the claim in time and not being paid, the creditor may claim that the members of the liquidation group shall be liable for the losses caused as a result.
For example, after Company A borrows money from creditors, the shareholders decide to write off the company without paying their capital contributions. During the liquidation process, the liquidation team only published a liquidation announcement in a local newspaper with a small circulation, and did not directly notify creditors. Without the creditor's knowledge, the company has completed the write-off. Later, the creditors found that there were problems in the liquidation procedure of the company, so they filed a lawsuit in the court, demanding that the members of the liquidation group bear the liability for compensation. After hearing, the court held that the liquidation group failed to fulfill the obligation of notification according to law, which damaged the legitimate rights and interests of creditors, and ruled that the members of the liquidation group should be liable for the losses of creditors within a certain range.
2. Verify the authenticity of the liquidation report
Creditors should review the company's liquidation report to see if there is any misrepresentation or concealment of material facts. If a shareholder, without liquidation in accordance with the law, defrauds the company registration authority to cancel the registration of a legal person with a false liquidation report, causing losses to creditors, the shareholder shall be liable for the liquidation of the company's debts.
For example, at the time of the write-off of Company A, the liquidation report submitted by the shareholders claimed that the company's assets were sufficient to pay off all its debts, but in fact the shareholders did not pay their contributions and the company had a large amount of outstanding debt. Creditors only learned that their claims had not been paid off after the cancellation of Company A, and the investigation found that the liquidation report was false. The creditor sued the shareholder in court for the company's debts. After examining the liquidation report and relevant evidence, the court found that the shareholders had committed false liquidation and ruled that the shareholders were liable for the debts of Company A.
(II) hold shareholders accountable for their capital contributions
1. Require shareholders to bear supplementary liability within the scope of unpaid capital contributions.
According to the law, at the time of the dissolution of the company, the outstanding capital contributions of the shareholders shall be treated as liquidation property. 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 shall bear joint and several liability for the company's debts within the scope of the unpaid capital contributions.
For example, Company A borrows $5 million from creditors and the company's shareholders contribute $10 million, but only $3 million actually paid in. After the company is written off, Company A's assets are not sufficient to repay the creditors' debts. By inquiring about the industrial and commercial registration information and other means, the creditor learned about the shareholders' unpaid capital contribution, and then sued the court to require the shareholders to bear supplementary liability for the company's debts within the scope of the unpaid capital contribution of 7 million yuan. After hearing, the court upheld the creditor's claim.
2. Apply the corporate personality denial system and hold shareholders jointly and severally liable.
If the shareholders abuse the independent status of the company as a legal person and the limited liability of shareholders, evade debts and seriously harm the interests of the company's creditors, the creditors may, in accordance with the provisions of Article 20, paragraph 3, of the Company Law, advocate "piercing the corporate veil" and require the shareholders to bear joint and several liability for the company's debts.
For example, the shareholders of Company A, in order to avoid debts, transfer the company's main assets to their own names without paying their capital contributions, and then write off the company. After the creditor found out, he filed a lawsuit with the court, claiming that the shareholders abused the company's personality and demanded that the shareholders bear joint and several liability for the debts of Company A. In the course of the trial, the court found that the shareholders abused the company's personality by investigating the company's capital flow, the transaction records of shareholders and the company, and ruled that the shareholders were jointly and severally liable for the debts of Company A.
(III) rights through other means
1. Investigate the responsibility of the members of the liquidation group (if there is any fault)
If the members of the liquidation group have intentional or gross negligence in the process of liquidation, causing losses to creditors, creditors may require the members of the liquidation group to bear the liability for compensation. For example, the members of the liquidation group failed to properly assess and dispose of the company's important assets at the time of liquidation, resulting in the undervaluation of the assets and harming the interests of creditors, who may claim compensation from the members of the liquidation group.
2. Inquire whether the company has any improper distribution of surplus property.
After the liquidation of the company, if the shareholders violate the law or the articles of association when distributing the remaining property, which harms the interests of creditors, the creditors may require the shareholders to return the improperly distributed property for the purpose of paying off the company's debts. For example, a company has outstanding debts before liquidation, but the shareholders have distributed all the remaining property after liquidation and have not set aside sufficient funds for debt repayment, and the creditors have the right to require the shareholders to return the distributed property for debt repayment.
2. case analysis
Brief of the case
Oli Company and Yang X jointly signed the "Quick Loan Contract for Small and Micro Enterprises of XX Bank" with XX Bank, agreeing to borrow 700000 yuan from XX Bank. After the term of the loan expired, Olli failed to repay the loan on time. During the recovery process, XX Bank found that Oli had written off, some shareholders had not paid their capital contributions, and there was an illegal liquidation, and Oli Company, without notifying XX Bank as a creditor and the shareholders had not paid their capital contributions, made a false promise to the competent authorities to cancel on October 1, 2021. XX Bank found that Oli Company was incorporated on July 20, 2015 with a registered capital of 200000 yuan. The shareholders are Yang X and Shen X Min, with an investment ratio of 7:3. All shareholders have not paid in their capital.
2. Court decisions
After hearing, the court held that, with reference to Article 20 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, "the dissolution of a company shall apply for cancellation of registration after the completion of liquidation in accordance with the law. If a company cancels its registration without liquidation, resulting in the company being unable to liquidate, and the creditors claim that the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company, and the actual controller of the company are liable for the repayment of the company's debts, the people's court shall support it in accordance with the law". The liquidation obligor refers to the responsible subject who organizes the establishment of a liquidation organization in accordance with the law to clean up the company's claims and debts when the company is dissolved. The liquidation obligors of a limited liability company are all the shareholders. In this case, the loan involved is the debt incurred during the operation of the company, the company canceled but not liquidated, Yang X, Shen X Min as the shareholders of the canceled company, should bear joint and several liability for the debt of the company, so Shen X Min should also bear the liability for the debt of the case. In this case, Yang X is both the borrower and the obligor who is jointly and severally liable for the debts of Aili Company that have been written off, and as mentioned above, Yang X shall be liable for repayment.
3. Summary
Through the above cases, it can be seen that in the case of the cancellation of the company by shareholders without paying their capital contributions, creditors may realize their claims by investigating the liquidation and holding shareholders accountable for their capital contributions. However, in practice, creditors need to actively collect evidence and use legal means to protect their legitimate rights and interests. At the same time, they also remind enterprises and shareholders to strictly abide by laws and regulations in the process of company operation and cancellation, so as to avoid legal disputes caused by improper behavior.
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