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A invested and established a camera company in July 2006, mainly engaged in photography, color expansion and other businesses. The company has six employees, three of whom are cameramen and the other three are engaged in odd jobs. Party A is the sole shareholder of the company and concurrently serves as the manager. Party A is responsible for the daily affairs of the company .. In September, due to the expansion of business, it is necessary to purchase a batch of photographic equipment, and Party A signed a sales contract with Zhongtian Camera Equipment Co., Ltd., which stipulated that Zhongtian Camera Equipment Co., Ltd. would provide a batch of photographic equipment to Party A, and Party A should pay off the total price of 260,000 yuan in June+10, 5438. A signed the contract in the name of the company. After the payment was due, a camera company delayed payment. After repeated urging, Zhongtian Camera Equipment Co., Ltd. took the camera company to court and demanded repayment. The court ruled that Zhongtian Camera Equipment Co., Ltd. won the case and found that there was no money in the company's account when it was executed. According to the investigation, A has already transferred the company's property to his personal name. So Zhongtian Camera Equipment Co., Ltd. filed a new lawsuit with A as the defendant, demanding that it bear unlimited liability for the company's debts.
Magic weapon analysis:
This case is a typical case about the personality denial of a one-person limited liability company. In a one-man company, shareholders often abuse limited liability and the independent status of the company because there is no internal control mechanism and supervision mechanism. In practice, there are several situations in which shareholders abuse the independent personality of one-man company: namely, the personality is chaotic, shareholders regard one-man company as another self or tool, and the company has no independent will and independent decision-making; In hotchpot, the property of a one-person company cannot be clearly distinguished from the property of shareholders; Management is chaotic. One-man company and shareholders are engaged in the same business activities, sometimes in the name of shareholders and sometimes in the name of the company.
After signing the sales contract in the name of the company, Party A tries to evade the debt to the seller and transfer the company's property to himself, so that although the other party wins the case, it can also evade the debt because the company has no property to execute. However, A's behavior is an abuse of the company's independent personality, which should be denied according to law, so that A can bear unlimited liability for the company's debts. In a one-man company, the protection of creditors' interests is in a weak link. Therefore, the denial of corporate personality of one-man company is a crucial system for creditor protection.
In the past, the court completely denied the legal personality of the husband and wife company that concealed its identity. After the new company law recognizes one-man company, will there be any change in the understanding of the legal personality of husband and wife companies?
Although the new Company Law allows natural persons to set up limited liability companies, there will still be a large number of de facto one-man companies, quasi-one-man companies and pseudo-one-man companies in the future due to the high threshold of one-man companies and the high risk of being revealed, among which husband and wife companies, brother companies, father and son companies or friend companies are the most typical, and the problem of uncovering the veil of husband and wife companies is the most special. At this time, because the husband and wife property is * * * property, if the husband and wife start a company, they have property and there is no agreement to divide it, then there are two particularities when unveiling the husband and wife company:
The first is the particularity of husband and wife as shareholders of limited companies. If there is no agreement on the division of husband and wife's property, then the company funded by husband and wife, although on the surface it is the shares of different shareholders, is actually the same property, and the expression of will between husband and wife is usually the same, which leads to such a husband and wife company being the same in nature as a one-person company, but in appearance, the husband and wife company is not a one-person company. At this point, how to identify the legal personality of the husband and wife company has become the key to determine the outcome of the case.
Secondly, when unveiling the veil of husband-and-wife company, determine the particularity of the property scope of shareholders' joint liability to the company. Because there is usually no agreement on the property of husband and wife, if the judge lifts the veil of husband and wife company, it actually means that husband and wife should bear joint and several liability for the debts of the company, and it also means that husband and wife should bear joint and several liability for the debts of the company. This is another feature that couples companies and other companies unveil.
Case 1 Legal Person Qualification Case of a Couple Company (Health Products Company)
The facts of a legal case
A health care product company in Anhui Province (hereinafter referred to as "health care product company") has developed a health care product (hereinafter referred to as "A"). In June, 20001year, a pharmaceutical company in Nanjing (hereinafter referred to as "the pharmaceutical company") signed a consignment agreement with a health care product company, stipulating that the pharmaceutical company would buy out the national distribution right of A for three years, and the price of A was 30 yuan per bottle; Pharmaceutical companies need to complete the agreed guaranteed sales volume every month (5,000 bottles in the first six months, and the rest are omitted); When the pharmaceutical company cannot complete the sales volume, the unfinished part shall be compensated to the health care product company according to each bottle of 3 yuan; The pharmaceutical company shall pay RMB 200,000.00 Yuan to the health care products company as the performance bond, and the health care products company shall return it to the pharmaceutical company in full within 7 days from the date of termination of the agreement, and pay a penalty of 3‰ per day for overdue return.
After signing the contract, the pharmaceutical company only sold 900 bottles of health care product A in three months because of poor sales. The health care product company urged it many times, but the sales work of the pharmaceutical company did not improve. On June 5438+ 10, 2002, the health care products company sent a fax to the pharmaceutical company, saying that the health care products company unilaterally canceled the consignment agreement because of the breach of contract by the pharmaceutical company, and the health care products company confiscated the deposit paid by the pharmaceutical company of 200,000 yuan to compensate the health care products company for its losses.
The pharmaceutical company failed to ask the health care products company for a deposit of 200,000 yuan, so it filed a lawsuit in a court in Nanjing in May 2002, asking the health care products company to return the deposit and pay the liquidated damages for overdue payment. At the same time, pharmaceutical companies applied for litigation preservation measures against the property of health care products companies. However, when the court took legal action to preserve the property of the health care products company, it was found that only 1000 yuan was in several bank accounts held by the pharmaceutical company or the industrial and commercial files of the health care products company, and the venue of the health care products company was leased, and the production mode was "cooperation with supplied materials", so the production equipment was relatively simple and the value was limited.
The lawyer found in the file search that the health care products company was established in 1997, with a male (w) and a female (z) as shareholders, and the capital contribution was in cash+five houses. W and z had the same ID address at that time. Lawyers also found that: 1, public security household registration information, shareholders W and Z of health care products company are husband and wife, 1996 ID card address is the same, and the latest ID card address is different; 2. According to the industrial and commercial archives, the registered capital of the health care products company is more than 500,000 yuan, and 5 houses and a small amount of cash are invested by W and Z; 3. Only four sets of property rights can be found in the property file, which have been under the names of W and Z, and have never been transferred to the company name, and have been transferred to others not long ago; It is found that there is a newly bought house under the name of Z, and the invoice amount is more than 1.6 million.
The pharmaceutical company added W and Z as co-defendants in this case, and the court accepted the request of the pharmaceutical company and took litigation preservation measures against the house under Z's name according to the application. So, W and Z realized that it was basically impossible to continue to evade debts, so they reached a mediation agreement under the auspices of the court, and W and Z returned the deposit.
Lawyer's view
First of all, husband and wife are a kind of "legal property". During the validity of the marriage, according to the law, their property is presumed to be owned by the husband and wife. Of course, it can be agreed that "the ownership of the property acquired before marriage or during the existence of the relationship between husband and wife", but this agreement is not binding on the third party unless it is effectively publicized or the third party is unaware of it. It is normal that the property during the relationship between husband and wife belongs to the husband and wife. If both husband and wife advocate an agreement, they shall provide proof. Otherwise, their property belongs to the husband and wife and is regarded as a single subject in the property.
The establishment of a company with the property jointly owned by husband and wife is a single investor, which does not conform to the old company law that a limited liability company must have more than two shareholders. Its essence is "one-man company", which does not conform to the legal person characteristics of the company and runs counter to the premise of "separation principle" of limited liability. These companies violate the "contractual nature" of the company's articles of association, and the company's operation lacks independent will expression. According to the relevant documents of the Higher People's Court of Jiangsu Province, "a limited liability company registered with husband and wife as shareholders shall be regarded as a' partnership enterprise' if it cannot clearly distinguish the property contributed by husband and wife respectively". In other words, it is similar to the provision that "the partners shall bear unlimited joint and several liability for the debts of the partnership organization".
Therefore, the "husband and wife company" does not conform to the provisions of the Company Law on "limited liability company", and both husband and wife have no right to claim limited liability. Health products company is a joint venture between W and Z, which does not meet the requirements of a limited liability company. Shareholders of health care products companies should not be limited to limited liability.
Secondly, in this case, even if W and Z are not husband and wife, their false investment and withdrawal of investment should also be investigated for personal responsibility. The physical objects contributed by W and Z have not been transferred to the company from beginning to end, which violates the provisions of Article 25 of the Company Law and is regarded as non-contribution, resulting in the registered capital of the health care products company not reaching the minimum standard of 500,000 yuan stipulated in Article 23 of the Company Law, which does not meet the conditions for the establishment of the company. Although obtaining company registration by fraudulent means conforms to the appearance of the company, in essence, the company was not established from the beginning because of defects in its administrative procedures. Corporate behavior is regarded as individual behavior, and the actor should be directly responsible for it. The property invested by W and Z is transferred by them in their own names, which is an act of encroaching on the company's assets, resulting in the loss of the company's property, which violates the company's "capital maintenance principle" and makes it impossible for the company to bear civil liability independently with its own property. Shareholders have infringed upon the interests of the company and creditors and should be liable to creditors.
Admirable, the lawyer handling the case can start with investigating the real situation of the registered capital of the company, and finally force the shareholders of the company to settle by adding defendants. However, the lawyer handling the case raised a question to the new company law: under the premise that the new company law has recognized one-man company, is the limited liability company established by husband and wife still prohibited by the company law? I think the answer isno. I think it is inappropriate for the court to regard the husband-and-wife company as a "partnership enterprise" under the premise that the new "Company Law" has clearly recognized the one-person limited liability company as a special company form. Legally speaking, the property of husband and wife belongs to the husband and wife, so the limited company established by the husband and wife, whether publicly declared as a husband and wife company or not, belongs to the company owned by * * * *, that is, the company owned by the interest group * * * *, and the husband and wife company usually shows a high degree of consistency in the expression of meaning. From these two points of view, it is like a husband and wife company. Therefore, the author advocates that all husband and wife companies should apply the special provisions of one-man company. For the sake of transaction security, it is best to indicate the nature of the husband-and-wife company in industrial and commercial registration, just as a one-person company should indicate "sole proprietorship by natural persons" in registration. According to the author's investigation on the industrial and commercial bureau, when registering a company, the industrial and commercial bureau has no obligation to ask investors whether there is a husband-and-wife relationship. If the parties take the initiative to inform the industrial and commercial bureau of their marital status or the industrial and commercial bureau knows their marital status, the industrial and commercial bureau will generally require them to notarize the property, so as to prove that the property invested by both husband and wife belongs to their own property alone and not to * * *.
If a company invested by husband and wife conceals the marital status at the time of establishment registration, if there is a dispute in the future, it should still be judged according to the special provisions of one-person company, and it is not appropriate to identify the husband and wife company as a partnership.
When a husband and wife divorce, because they usually need to divide their property, the husband and wife company has really become a non-one-person company or a veritable one-person company since the date of divorce. At this time, it is not appropriate to regard it as a partnership or a sole proprietorship of natural persons. However, if the debts incurred by the husband and wife company before the divorce need to be unveiled, the joint liability of the husband and wife should still be determined. To this end, first analyze the following cases.
Case 2: Divorced couples' legal personality was denied.
Jiang and Tu Ben are husband and wife. On September 8, 2003, Jiang registered and established the Information Service Department in the administrative department for industry and commerce. Its business scope is: "Consumer goods, means of production brokerage (except for special provisions of the state) and real estate brokerage services; Domestic labor information consultation and agency. " On February 8, 2004, 65438, Jiang charged the plaintiff Zhao 25800 yuan in the name of the information service department, and promised to send Zhao to work in shipping companies all over the country. However, since then, Jiang failed to fulfill his obligations in time as promised, and the information service department was cancelled by the industrial and commercial department on March 24, 2005 because of its closure. June 5438+February 65438+April 2004, registered by the administrative department for industry and commerce, Jiang and Tu jointly invested to set up a crew service company, and obtained the Business License of Enterprise as a Legal Person. Its business scope is: "crew education and training, crew management, domestic labor services, and handling certificates for crew members; Commodity information consultation and marriage introduction (if the state has special provisions, it shall be followed). " In the enterprise registration materials of the industrial and commercial department, Jiang contributed 40,000 yuan and Tu contributed 60,000 yuan. However, when the crew service company was established, Jiang and Tu did not show the marital relationship to the industrial and commercial department, nor did they submit the certificate of division of husband and wife's property to the industrial and commercial department in accordance with relevant state regulations. Tu did not actually contribute, and all the registered capital was raised by Jiang. After the establishment of the crew service company, Jiang used the registered capital of the company to repay the debt of the information service department. Zhao couldn't find a job, so he looked for Jiang many times. On June 5438+1October 10, 2005, Jiang signed an agreement with Zhao in the name of a crew service company. The main contents of the agreement are as follows: in 2004, Jiang arranged to study and train in a maritime safety administration in Shandong, but the crew of commercial cargo ships have not paid all the study fees so far; Upon consensus of both parties, Jiang shall pay off all the fees owed to Shandong Intermediary Guo before the morning of June 65438+1October 2, 2005 12; Zhao has the right to terminate the agreement if Jiang fails to pay the fee to the Shandong Agency before 5438+ 10/morning of June 2005 12. With receipts, receipts and certificates, Jiang will unconditionally return all the fees paid; The above agreement shall come into effect as of the date of signature by both parties. The two sides also agreed in the agreement that if Zhao gave up without reason or could not be blamed on Jiang, the fees paid by Zhao would not be refunded. The agreement was signed by Jiang and Zhao, and the crew service company also stamped the agreement. However, after the signing of the agreement, Jiang and the crew company still failed to arrange Zhao's training as scheduled. On June 4th, the same year, 65438+ 10/KLOC-0, Guo Xiangzhao issued a certificate saying that he had not received the training fee from JIANG and the crew service company.
In order to recover the paid fees, Zhao filed a lawsuit with the people's court on May 27th, 2005. On June 1 day, Jiang and Tu agreed to go through the divorce formalities with the Civil Affairs Bureau of Hai 'an County after receiving the copy of the complaint and the notice of responding to the lawsuit served by the people's court. The two parties agreed in the divorce agreement that Tu owned all the property except a TV, a washing machine, an electric fan and a desk. Married children are raised by Jiang, and all support payments are borne by Jiang; The creditor's rights and debts during the marriage relationship are collected and repaid by Jiang Dai. After that, according to Zhao's application, the court added Tu as the defendant to participate in the lawsuit according to law.
During the trial, the plaintiff Zhao claimed that the defendant Jiang charged me 25,800 yuan and promised to send it to shipping companies all over the country to work. On June 5438+1October 10, 2005, Jiang signed an agreement with it in the name of crew service company, promising to pay off all the fees owed to Shandong intermediary Guo before noon on June 5438+1October/2, 2005, otherwise I have the right to terminate the agreement and return the fees unconditionally. Now the defendant fails to perform the contract and requests to order the defendant to jointly repay 25,800 yuan. Defendant Jiang argued that plaintiff Zhao paid me 17500 yuan and introduced him to work as a sailor. Later, because of the low salary as a sailor, he asked to change jobs, and on February 8, 2004, he made up some money. Because he breached the contract in advance, I didn't commit any breach of contract, so I shouldn't be responsible for returning the 25,800 yuan that I have collected, but during the trial, Jiang. The defendant's crew argued that Zhao had not paid any fees to our company, and our company refused to grant his claim. The defendant Tu argued that she didn't know what happened between Zhao and Jiang, so she couldn't bear any responsibility.
After hearing the case, Hai 'an County Court held that the information service department was started by the defendant Jiang, and the creditor's rights and debts should be enjoyed and paid off by the founder Jiang after the closure. The defendant crew service company, Jiang and Zhao signed an agreement on matters such as returning Zhao's agency fee, and they were obliged to perform according to the agreement. Because Jiang and the crew service company failed to fulfill their obligations as agreed, they should bear the responsibility of returning the labor agency fee. When the defendants Jiang and Tu set up a crew service company, they concealed the identity of the husband and wife, and invested in the joint property of the husband and wife, and did not submit the property division certificate to the industrial and commercial department. The company does not have the nature of a limited liability company in a strict sense, and does not have the qualification of a legal person. The debts owed to creditors should be repaid by investors.
Accordingly, in accordance with the relevant provisions of China's Contract Law and with reference to the Provisions of the State Administration for Industry and Commerce on Several Issues Concerning the Administration of Company Registration, the court used the company personality denial system in the first instance to deny the personality of the defendant's crew service company, and at the same time ruled that the shareholders of the company, namely the defendants Jiang and Tu, jointly repaid the plaintiff Zhao's labor agency fee of 25,800 yuan.
Judge's comments
The focus of the dispute in this case is mainly in two aspects: first, whether the husband-and-wife company has the legal person qualification, and how to determine the liability subject for the debts it undertakes in the course of operation; The second is how to confirm the validity of the agreement reached on property division when the husband and wife agree to divorce.
The so-called husband-and-wife company refers to a limited liability company with only husband and wife as shareholders. As for husband-and-wife companies, China's company law does not explicitly prohibit them. 1998 65438+ 10, the State Administration for Industry and Commerce issued the Provisions on Several Issues Concerning the Administration of Company Registration, in which Article 23 stipulated that: "If family members * * * jointly contribute to establish a limited liability company, they must use their own property as the registered capital and bear their own responsibilities. When registering, you need to submit a written certificate or agreement on property division. " In the trial practice, the people's court will generally deny the company's personality according to the provisions of this article to protect the legitimate rights and interests of creditors. The so-called denial of corporate personality means that when the shareholders who have actual control rights behind the company violate the principle of good faith and the legal spirit of fairness and justice, they abuse the independent personality of the company and harm the interests of the company's creditors and the public, the court will put aside the independent personality of the company and regard the company's behavior as that of the shareholders who actually control the company behind the company, thus assuming corresponding legal responsibilities. The establishment of the company's personality denial system is still based on the general principle of maintaining the company's independent personality. Investors are encouraged to boldly invest some money in the company on the premise of not taking personal risks in the company's debts. At the same time, shareholders are prohibited from using the company to engage in improper activities and seek illegal interests. The company's personality denial is regarded as a necessary and beneficial supplement to the company's personality independence, so that the two can form a harmonious functional complement under deep tension. In this case, the crew service company operated by the defendants Jiang and Tu obtained the legal person status. However, due to the husband-and-wife relationship between Jiang and Tu, and Tu didn't actually contribute when the company started, the company's business decision was centered on Jiang, and Jiang and Tu didn't submit the property division certificate when they registered the company, so it was difficult to distinguish Jiang's family property from the company's property, thus forming a hodgepodge, which made the company lose its independence, which was closely related to Jiang and Tu's subjective fault. Therefore, there is a legal basis for the court in this case to deny the legal person qualification of the crew service company when making a judgment. After the crew service company's legal person qualification is denied, the company's external debts shall be jointly and severally liable by the company's shareholders.
In this case, the defendants Jiang and Tu went to the civil affairs department for divorce after receiving the legal documents from the court. Regarding the legal effect of divorce, because it is the will of the parties, this behavior has been confirmed by the marriage management authority through the issuance of divorce certificates, which should be protected by law, and the people's court cannot conduct judicial review on the divorce behavior of the parties. However, when the parties divorce, the agreement reached on the division of husband and wife's property and debt sharing may evade the law because it involves the interests of a third party. The agreement can only be binding between the parties, but has no effect on the third party. Article 25 of Judicial Interpretation II of Marriage Law promulgated by the Supreme Court stipulates: "If the divorce agreement of the parties or the judgment, ruling or conciliation statement of the people's court has dealt with the division of husband and wife's property, the creditor still has the right to claim rights from both men and women for the same debt. If one party claims compensation from the other party based on the divorce agreement or the legal documents of the people's court after assuming joint and several liability for debt repayment, the people's court shall support it. " Therefore, in this case, there is also a legal basis for the plaintiff Zhao to apply for adding Tu as the defendant to participate in the lawsuit and ask him to take responsibility.
Source: Oriental Law Eye website; Authors: Judges Chen Zhihong and Lu Yilin of the People's Court of Hai 'an County, Jiangsu Province.
The author believes that in this case, there is nothing wrong with the judge ruling that the shareholders of the husband and wife company, that is, husband and wife, are jointly and severally liable for the civil liability of the husband and wife company.
Secondly, the old company law and relevant administrative regulations apply to this case, and it is not inappropriate to determine that a husband-and-wife company without property notarization does not have legal personality.
However, as in the previous case, it is debatable to deny the personality of the husband-and-wife company according to the provisions of the new Company Law and related laws and regulations. There are many similar cases, and how the court determines the personality of the husband and wife company is worth looking forward to.