As a result, a large number of companies with huge registered capital and insufficient paid-in capacity have emerged in society. One of the most important reasons is that many friends think that "receiving without paying" is equivalent to "receiving without paying" and "not paying" under the full subscription system.
Then, under the subscription system, will the registered capital be subscribed or not? And you're not responsible?
Please see: the first judgment of the Shanghai court on the case of subscribed capital contribution, recognizing the legal risks of subscribed capital contribution!
Case Review: An investment company with registered capital of 20 million and paid-in capital of 4 million. After the introduction of the share subscription system in the new company law, the capital has increased to 1 100 million. After signing nearly 80 million contracts, in the face of debts due, the capital suddenly decreased to 4 million and the shareholders changed. After the first 20 million yuan can't be collected, the creditors, together with the new and old shareholders, took the company to court, demanding that both the investment company and the new and old shareholders bear joint and several liability for the debt. 2065438+On the afternoon of May 25th, 2005, Putuo Court made a first-instance judgment on the dispute over subscribed capital contribution.
Referee points
Under the subscription system, the shareholders' capital contribution obligation is only postponed, not exempted permanently. When there is a major change in the company's operation, the company, including creditors, may require the company's shareholders to make capital contributions to pay off the company's debts.
court trial
After the trial, the judge held that the defendant investment company, as the purchaser of the equity of the target company, failed to pay the equity price as agreed in the contract, which constituted a breach of contract and should be liable to the plaintiff with all its property. If the investment company and its shareholders fail to reduce their capital according to the legal conditions and procedures when they know that the company has foreign debts, the capital reduction is invalid, and the registered capital of the investment company should be restored to the state before the capital reduction, that is, the registered capital of the company is still 6,543.80 billion yuan, and the shareholders of the company are Xu and Lin. When the company's debts are due and the company's property cannot pay off the debts, shareholders Xu and Lin should still pay off the debts after assuming the responsibilities; If the company can't pay off the debts at all, Xu and Lin should pay the registered capital equivalent to all the equity transfer funds to pay off the plaintiff's debts.
At the same time, the defendant's investment company failed to fulfill the legal procedures and conditions to reduce the registered capital of the company, which is similar to the act of withdrawing capital contribution. The creditors of the company may also require Xu and Lin to bear supplementary responsibilities for the part that the company cannot pay off. Before the signing of the equity transfer agreement in this case, Mao had withdrawn from the company, and after his withdrawal, he should not be responsible for the company's behavior. As the capital reduction behavior is deemed invalid, it should be restored to the state before the capital reduction behavior, so the defendant Xie Mou should not be deemed as a shareholder of Hao Yue Company, and Xie Mou may not be responsible for the plaintiff's investment company.
On the afternoon of May 25th, 20 15, Putuo District Court made a first-instance judgment on this case. An investment company shall pay 20 million yuan for equity transfer to an international trading company within 10 days from the effective date of this judgment; For the equity transfer money that cannot be paid off by the investment company, Xu and Lin shall fulfill their capital contribution obligations within the scope of unfulfilled principal and interest, and assume the responsibility of supplementary repayment.
The understanding of "company property" cannot be limited to the company's existing property.
In general, the creditor's rights enjoyed by the company are also the company's property or property interests. In the process of bankruptcy, the company's creditor's rights are also an integral part of the company's property. In the process of execution, the creditor's rights enjoyed by the person subjected to execution against others can also become the subject of execution.
For companies that implement subscription system, the unpaid registered capital of individual shareholders is no different from general debts, and can also be regarded as debts owed by company shareholders to the company. Judging from the Supreme People's Court's judicial interpretation of the company law, it can also be concluded that the company's creditors can require the company's shareholders to fulfill their capital contribution obligations.
In the current company law and judicial interpretation, there is no clear stipulation on how a company should bear the responsibility for violating legal procedures and conditions and reducing its capital without notifying known creditors. However, this does not prevent the court from applying relevant laws and judicial interpretations according to the specific circumstances of the case. ①
The lawyer explained:
Paragraph 2 of Article 3 of the Company Law stipulates: "Shareholders of a limited liability company shall be liable to the company to the extent of their subscribed capital contribution; The shareholders of a joint stock limited company are liable to the company to the extent of the shares subscribed by them. Therefore, the scope of liability of shareholders is still all the capital subscribed by them. Under the full subscription system, "subscription without payment" does not mean "no payment is required".
20/kloc-in February, 2004, the Supreme People's Court promulgated Provisions on Several Issues Concerning the Application of the Company Law of People's Republic of China (PRC) (II) and Provisions on Several Issues Concerning the Application of the Company Law of People's Republic of China (PRC) (III), which made more detailed arrangements on how to protect the interests of creditors under the subscribed capital system. For example, Article 22 of Interpretation II of the Company Law stipulates: "When the company is dissolved, the unpaid capital contribution of shareholders shall be regarded as liquidation property. The unpaid capital contribution of shareholders includes the overdue capital contribution, and the capital contribution that is not due by stages as stipulated in Articles 26 and 80 of the Company Law. When the company's property is insufficient to pay off the debts, if the creditors claim that the unpaid shareholders and other shareholders or promoters at the time of the establishment of the company shall bear joint and several liabilities for paying off the debts of the company within the scope of unpaid capital contribution, the people's court shall support them according to law. " Paragraph 2 of Article 13 of Interpretation III of the Company Law stipulates: "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 responsibilities for the outstanding part of the company's debts within the scope of outstanding principal and interest, the people's court shall support them." ②
Under the registered capital subscription system, it may be the first pit that entrepreneurs encounter. It seems simple, but in fact it is complicated, so it is very important to adopt the "correct posture". Traditional industrial and commercial registration agencies may not be able to give much professional advice. If you encounter difficult problems, it is recommended to consult a professional legal service organization.
Remember: you can't be willful under the subscription system. If you are not careful, you may go to prison. I hope you think twice.
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