Company liquidation refers to a legally established limited liability company or joint stock limited company, which is forced to liquidate by the people's court or the competent authority in accordance with the provisions of the Company Law of People's Republic of China (PRC) due to poor management or the expiration of its business term, so as to achieve the result of dissolution of the company and elimination of its legal personality. Bankruptcy of a company, according to the provisions of the Enterprise Bankruptcy Law of the People's Republic of China, which came into effect on June 1 2007, means that an enterprise as a legal person is unable to pay off its debts due, its assets are insufficient to pay off all its debts or it obviously lacks solvency, or the enterprise has been dissolved without liquidation or liquidation, and its assets are insufficient to pay off its debts, so bankruptcy liquidation shall be conducted. Bankruptcy liquidation is actually a special case in company liquidation. Since the implementation of the Enterprise Bankruptcy Law of the People's Republic of China on June 1 2007, there have been many cases of enterprises applying for bankruptcy liquidation.
According to the Company Law, the shareholders of a limited liability company and a joint stock limited company are only liable for the debts of the company to the extent of their capital contribution. That is to say, as long as the shareholders of the company invest in place when the company is established, and the company has the status of an independent legal person after its establishment, the shareholders are not liable for the debts of the company in the liquidation and bankruptcy liquidation, which is the legal meaning of "limited company".
In practice, when a company is liquidated or bankrupt, there are often many exceptions for shareholders of a limited company to bear legal responsibility for the company's debts. In view of the above situation, the opinions are as follows:
Under normal circumstances, according to the provisions of the company law and relevant legal principles, the company's debts must be borne by the company, and shareholders will not bear the company's debts, because shareholders bear limited liability to the company. The so-called limited liability means that when the company is established, shareholders must pay their capital contribution in full according to the equity ratio agreed in the articles of association to obtain equity. After the company's shareholders have paid their capital contributions in full, their obligations have actually been completed. The company's debts are borne by the company with all its own property, which has nothing to do with shareholders. For example, Mr. Zhao, Mr. Qian, Mr. Sun and Mr. Li jointly invested to establish a limited company with a registered capital of 654.38 million yuan. If these four gentlemen have paid their capital contributions in full and have relevant records when the company was established, legally speaking, their responsibilities to the company have been completed. Generally, the debts of a company will not fall into the names of four people, nor will they be borne by the personal property of four people. Because the company and shareholders are relatively independent civil subjects, just as Mr. Zhao generally does not pay debts for Mr. Sun, shareholders generally do not pay debts for the company.
Nothing is absolutely the same. In some cases, the company's debts will be borne by shareholders.
In one case, the shareholder's contribution is false. There is no actual capital contribution, or the capital contribution does not reach the proportion agreed by shareholders as stipulated in the Articles of Association. It should be noted that, generally speaking, when a company is registered, the industrial and commercial registration authority will generally require the applicant to provide proof of capital contribution, usually the audit certificate of an accounting firm. If the company contributes in kind, it will be required to provide relevant evaluation documents. These documents will exist in the company's industrial and commercial registration files after the company is established. If the company fails to perform its debts in the lawsuit, the judge or lawyer who accepts the case can inquire about these materials. If these materials do not exist, shareholders can be required to bear the company's debts.
In the second case, shareholders withdraw their funds. Some shareholders will withdraw the original capital contribution as share capital after the company is registered and established, which will objectively reduce the company's capital and violate the principle that the company's capital remains unchanged. If the company is required to bear the corresponding debt liability in the lawsuit, but the company is unable to perform it, the shareholders of the company may encounter the possibility of demanding liability within the scope of withdrawing capital contribution, that is to say, the shareholders will have to bear it on behalf of the company.
In addition, there are many other situations, such as shareholders operating in the name of the company without formal registration, generating debts, or shareholders misappropriating the company's property to pay personal expenses, or some shareholders abuse the company's limited liability system to infringe on the interests of creditor's rights and seek improper interests for themselves.
Second, how to prove the debt dispute. In a debt dispute, whoever claims will give evidence, that is, the plaintiff provides documentary evidence, physical evidence and other evidence that can prove the existence of the loan; The defendant provided documentary evidence, physical evidence and other evidence to prove that the fact of borrowing did not exist or that he had repaid the loan.
Third, do both parties to the debt dispute need property preservation? No, both sides need property preservation. Property preservation is based on application. Article 92 of the Civil Procedure Law stipulates: "In a case where the judgment cannot be executed due to the behavior of one party or other reasons, the people's court may, upon the application of the other party, order property preservation." Article 93 stipulates: "If an interested party fails to apply for property preservation immediately because of an emergency, which will cause irreparable damage to his legitimate rights and interests, he may apply to the people's court for property preservation measures before bringing a lawsuit." . In other words, the parties can take property preservation measures in time to prevent or reduce economic losses according to the provision of "property preservation comes first". In the current situation of tight capital and difficult organization of production factors, there are indeed many debtors who fail to settle the payment in time according to the contract, and it is quite common to delay and evade debts. Some are often difficult to implement even if the notary office makes a ruling or the people's court makes a judgment; Some debtors are essentially engaged in economic fraud. Under these circumstances, the creditor may, in accordance with the above provisions, file an application for property preservation while bringing a debt lawsuit to the people's court, and provide relevant information about the debtor's property, so that the people's court can seal up, detain, freeze or take other means as prescribed by law. If the debtor commits economic fraud, the creditor may apply to the people's court for property preservation measures before the prosecution to prevent the debtor from transferring the property and causing economic losses to the creditor.
The above is the legal knowledge collected by the editor about whether the accused shareholder bears the responsibility of the company's debt dispute. To sum up, corporate debt disputes are generally borne by enterprises with all their assets. When a limited liability company goes bankrupt and liquidates, shareholders generally bear limited liability with their capital contribution. .