Viewpoint | What are the responsibilities of the original shareholders and the transferee for the transfer of equity due to the false capital contribution of shareholders?
Published:
2024-08-12
Capital adequacy is the basic principle of company law, full capital contribution is the basic obligation of shareholders, shareholders' capital contribution is not only the basis of the company's operation, but also the company's external trust guarantee. In practice, there are cases where shareholders transfer their defective equity to a third party, and the transferee does not find the defect. Then, if the shareholder's capital contribution is defective and the equity is transferred to the outside world, should the original shareholder and the transferee be liable to the creditor within the scope of the false capital contribution?
Capital adequacy is the basic principle of company law, full capital contribution is the basic obligation of shareholders, shareholders' capital contribution is not only the basis of the company's operation, but also the company's external trust guarantee. In practice, there are cases where shareholders transfer their defective equity to a third party, and the transferee does not find the defect. Then, if the shareholder's capital contribution is defective and the equity is transferred to the outside world, should the original shareholder and the transferee be liable to the creditor within the scope of the false capital contribution?
Case Introduction
A food company was established in 2002. A villagers' committee contributed 4.9 million yuan in real estate, with a shareholding ratio of 70%. Wu contributed 2.1 million in cash, with a shareholding ratio of 30%. Wu served as the legal representative of the company. After the capital verification report issued by B accounting firm, the capital contribution of shareholder A villagers' committee and Wu Mou was evaluated. After the examination by the industrial and commercial department, A villagers' committee did not transfer the real estate contributed to a food company.
In 2006, a villagers' committee signed an equity transfer agreement with Wu's lover Zhu, transferring his 70% stake in a food company to Zhu.
In 2010, a food company signed a "loan contract" with a bank, borrowing RMB 4.5 million, with Wu and Zhu providing joint and several liability guarantee.
A food company failed to repay the loan as scheduled due to business difficulties, and a bank gave up the recovery of the guarantor Zhu in the course of litigation against a food company.
In 2016, a food company was revoked its business license by the Bureau of Industry and Commerce for some reason, but it was not liquidated in accordance with the law.
In 2018, a bank transferred its master-subordinate claim to a food company to C Asset.
In 2024, C Asset Company found that the property contributed by A Village Committee had not been transferred to a food company in accordance with the law by obtaining the industrial and commercial files of a food company in the process of creditor's rights recovery. C Asset Company claimed to the court that A Villagers Committee and Zhu Mou should be added as the executor.
So, is there any legal basis for Company C to claim to add A Villagers Committee and Zhu Mou as the executed person?
The relevant legal provisions are as follows
Article 13 of the (III) Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law (2020 Amendment), the people's court shall support the request of the creditors of the company to the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to 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; If the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already assumed the above responsibilities, other creditors made the same request, the People's Court did not support it. Article 18: If the shareholder of a limited liability company fails to perform or fully perform the capital contribution obligation, the transferee knows or should know that the company requests the shareholder to perform the capital contribution obligation and the transferee bears joint and several liability for it. The court shall support it; the company's creditors file a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these regulations, and request the aforementioned transferee to bear joint and several liability for this, the people's court shall support.
Article 88 of the new "Company Law" also has relevant provisions: If the shareholders who fail to pay the capital contribution in accordance with the capital contribution date specified in the company's articles of association or the actual value of the non-monetary property as the capital contribution is significantly lower than the subscribed capital contribution transfer equity, The transferor and the transferee shall bear joint and several liability within the scope of insufficient capital contribution; if the transferee does not know and should not know the existence of the above circumstances, the transferor.
Based on the equity transfer contract, the transferee pays the equity transfer consideration to obtain the corresponding equity. At this time, should the transferee be liable for the false contribution? The rule of judgment is whether the transferee is based on the good faith transfer of the equity. If the transferee knows or should know that the original shareholder's capital contribution is not true, the transferee and the original shareholder shall bear joint and several liability within the scope of the liability for the false capital contribution.
In this case, A villagers' committee shall transfer the real estate to a food company in accordance with the law. If the transfer is not possible, it constitutes a false contribution. The shareholder Zhu Mou's equity is transferred from the villagers' committee, and Zhu Mou and a food company's legal representative Wu Mou is a husband and wife relationship. Therefore, the behavior of the villagers' committee A's false capital contribution should be knowingly, not in good faith. Therefore, C Asset Management Company, as a creditor, may, in accordance with the law, require A Village Committee and Zhu to bear joint and several liability for the debts of a food company within the scope of the unfunded principal and interest.
At the same time, according to Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement, the enterprise legal person as the person subject to execution has insufficient property to pay off the debts determined by the effective legal documents, and the person applying for execution applies for change, addition of shareholders, investors or promoters who are jointly and severally liable for the capital contribution in accordance with the provisions of the Company Law, if the liability is assumed in accordance with the law to the extent that the contribution has not been paid, the people's court shall support it.
The Supreme People's Court explained similar cases in (2021) Supreme People's Court No. 218 as follows: The Court believes that the "Additional Provisions on Changes in Enforcement" mainly solves the problems of changes and additions of parties in civil enforcement, and is the procedural legal basis for the enforcement court to add parties to changes in enforcement. The enforcement court, in accordance with Article 17 of the Additional Provisions on Changes in Execution, provides that the additional shareholder is the executed person, and its substantive law is based on the fact that shareholders who have not paid or have not paid their capital contributions in full shall, in accordance with the law, bear supplementary liability for the debts that the company cannot pay off within the scope of the principal and interest of the capital contribution. Due to the pursuit of efficiency in the enforcement procedure, in order to avoid an obvious deviation between the judgment of the entity's rights and obligations in the enforcement procedure and the actual legal relationship between the parties, the enforcement court shall add the shareholder as the person to be executed in the enforcement procedure, which should be based on the apparent apparent fact that the shareholder is liable.
Therefore, the request of C Asset Company to add the original shareholder A Villagers Committee and Zhu Mou as the executed person complies with the law.
The case also reminds investors that when establishing a company, capital should be paid in full and on time in accordance with relevant laws and regulations; when the shares of others are transferred, they should be carefully verified to avoid defects in the purchased shares.
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