I. Three Articles of Judicial Interpretation of Company Law
Article 13 of Judicial Interpretation III of Company Law: If a shareholder fails to perform or fails to fully perform his capital contribution obligations, and the company or other shareholders request him to fully perform his capital contribution obligations to the company according to law, the people's court shall support it.
If the creditors of the company request the shareholders who have not fulfilled their capital contribution obligations or have not fully fulfilled their capital contribution obligations to assume supplementary liability for the outstanding part of the company's debts within the scope of outstanding principal and interest, the people's court shall support it; Shareholders who fail to perform or fully perform their capital contribution obligations bear the above responsibilities, and if other creditors make the same request, the people's court will not support it.
The people's court shall support the plaintiff who, when the company was established, the shareholders failed to perform or did not fully perform their capital contribution obligations and filed a lawsuit in accordance with the provisions of the first paragraph or the second paragraph of this article, requesting the promoters of the company and the defendant shareholders to bear joint liability; After the promoters of the company bear the responsibility, they may claim compensation from the defendant shareholders.
The people's court shall support the plaintiff in the process of capital increase of the company, and the shareholders fail to fulfill or not fully fulfill their capital contribution obligations, and bring a lawsuit in accordance with the provisions of the first paragraph or the second paragraph of this article, and demand the directors and senior managers who fail to fulfill their obligations as stipulated in the first paragraph of Article 148 of the Company Law to bear corresponding responsibilities. After the directors and senior managers assume the responsibilities, they may claim compensation from the defendant shareholders.
Second, the third interpretation of judicial interpretation of company law
The Company Law stipulates that it is the legal obligation of shareholders to fully fulfill their capital contribution.
Paragraph 1 of Article 28 of the Company Law "Shareholders shall pay their subscribed capital contributions in full and on time in accordance with the articles of association. Where shareholders make capital contributions in cash, they shall deposit their capital contributions in full into the account opened by the limited liability company in the bank; If the capital contribution is made by non-monetary property, the transfer procedures of its property rights shall be handled according to law. "
Paragraph 1 of Article 83 of the Company Law states, "Where a joint stock limited company is established by way of sponsorship, the promoters shall fully subscribe the shares stipulated in the articles of association in writing and pay the capital contribution according to the provisions of the articles of association. If the capital contribution is made by non-monetary property, the transfer procedures of its property rights shall be handled according to law. "
However, the previous clause is that the company, other shareholders and creditors bring a lawsuit for failing to fulfill the obligation of capital contribution, while this article establishes the lawsuit for failing to make full capital contribution according to law. The company and other shareholders have the right to lodge a complaint against the shareholders who fail to perform or fully perform their capital contribution obligations according to law, and may ask them to correct their capital contribution, pay or repay their capital contribution. However, it is debatable that this article does not clearly stipulate whether the company and other shareholders can pursue the liability of compensation for shareholders who have not contributed in accordance with the law or have not contributed in full. Lawyers personally believe that shareholders' failure to perform or not fully perform their capital contribution obligations constitutes a breach of contract to other shareholders on the one hand, and a violation of shareholders' truthful capital contribution obligations to the company on the other, so the company and other shareholders have the right to independently investigate the liability for compensation for losses caused by their failure to perform or not fully perform their capital contribution obligations.
The creditors of the company also have the right to appeal to shareholders who fail to fulfill their capital contribution obligations in accordance with the law or completely, and may require shareholders to bear supplementary responsibilities for the outstanding debts of the company within the scope of principal and interest that they should not contribute. It is worth noting that the supplementary compensation liability of shareholders who fail to perform or fully perform their capital contribution obligations is limited to the scope of principal and interest that they should contribute according to the articles of association, which includes all external liabilities of shareholders. However, when their debts reach the limit, no one can claim rights from shareholders. The limited liability of shareholders is based on the limited liability characteristics of modern limited liability companies and joint-stock limited liability companies. Shareholders have only a limited obligation to contribute to the company, but have no direct obligation to bear the company's debts. However, when shareholders fail to perform or not fully perform their capital contribution obligations, the company shall require shareholders to perform their capital contribution obligations. However, for the purpose of effectively protecting the interests of creditors and reducing their burden, the law allows creditors to claim their rights directly from shareholders who have the obligation to contribute to the company, and the obligations assumed by shareholders are still limited to the scope of contribution and will not change.
This article establishes the joint and several liability that the promoters of the company should bear for shareholders' failure or incomplete performance of their capital contribution obligations when the company is established, and clarifies the right of recourse against shareholders who fail to perform or partially perform their capital contribution obligations after the promoters take responsibility. It should be noted that this provision has greatly broken through the joint and several liability for insufficient capital contribution of the company promoters stipulated in the Company Law. On the one hand, the promoters of a limited company should bear joint and several liability not only for non-monetary investment, but also for monetary investment. It should be noted that the promoters stipulated in this judicial interpretation are not limited to the promoters of joint stock limited companies stipulated in the Company Law, but the promoters defined in Article 1, including the shareholders when establishing a limited company. On the other hand, the promoters of a joint-stock company should not only bear joint liability to other promoters, but also bear joint liability to other shareholders when the company is established. This provision increases the responsibility of the promoters, strengthens the supervision obligation of the promoters on the formation of the company's capital, and ensures the effectiveness of the company's assets and the interests of creditors.