Then, for the shareholders who have not contributed, does the original shareholder still have the obligation to contribute to the company after the equity transfer? Do new shareholders have the obligation to contribute capital? Can creditors require shareholders who have not fulfilled or not fully fulfilled their capital contribution obligations to bear supplementary liability for the outstanding part of the company's debts within the scope of outstanding principal and interest? Now, sort out and analyze the different situations of this case:
1. If the shareholders transfer their shares at the expiration of the subscription period, the original shareholders still need to bear the capital contribution responsibility to the company. It should also be liable for breach of contract to shareholders who pay their capital contributions in full and on time.
Shareholders shall pay their subscribed capital contributions in full and on time in accordance with the provisions of the Articles of Association. Even if the shareholder transfers the equity, the responsibility of false capital contribution is not exempted from the equity transfer, and the shareholder should still make up the capital contribution to the company according to law.
Article 28 of China's "Company Law" clearly stipulates that shareholders shall pay their subscribed capital contributions in full and on time in accordance with the provisions of the company's articles of association; Where the 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; Where a shareholder fails to pay the capital contribution in accordance with the provisions of the preceding paragraph, he shall be liable for breach of contract to the shareholder who has paid the capital contribution in full and on time.
2. Then, if the transferee accepts the shareholders while knowing that the transferor has not contributed, does the new shareholders have to bear the obligation of joint and several contributions?
According to Article 18 of Judicial Interpretation III of the Company Law, if the shareholders of a limited liability company fail to perform or fail to fully perform their capital contribution obligations, and the transferee knows or should know that the company requests the shareholders to perform their capital contribution obligations, and the transferee bears joint and several liabilities, the people's court shall support it; Where the creditors of the company bring a lawsuit to the shareholders in accordance with the provisions of the second paragraph of Article 13 of these Provisions, and at the same time request the transferee to bear joint liability for this, the people's court shall support it.
The people's court shall support the assignee's claim for compensation from the shareholders who have not fulfilled or fully fulfilled their investment obligations after assuming the responsibilities in accordance with the provisions of the preceding paragraph.
3. If the shareholders transfer their shares before the subscription period expires, the original shareholders need not be responsible for the company's capital contribution.
The original shareholder's transfer of equity before the expiration of the capital contribution obligation period does not belong to the situation of failing to perform the capital contribution obligation after the expiration of the capital contribution obligation period, and it is no longer necessary to bear the capital contribution responsibility to the company.
Lawyer Wu Min reminded: When transferring equity, the transferor should make capital contribution according to the time stipulated in the articles of association or shareholders' agreement, and the capital contribution should be credited to the company account from the personal account to avoid disputes over whether the capital contribution obligation has actually been fulfilled; For the transferee, when transferring the equity, it is necessary to check the capital contribution stipulated in the articles of association, whether the transferor has fulfilled the capital contribution obligation, and whether the capital contribution is clearly stipulated in the equity transfer agreement; For creditors, shareholders who have not fulfilled their capital contribution obligations or have not fully fulfilled their capital contribution obligations may be required to bear supplementary liability for the part of the company's debt that cannot be repaid within the scope of unpaid principal and interest.
Relevant laws and regulations:
company law
Article 28 Shareholders shall pay their respective subscribed capital contributions in full and on time in accordance with the Articles of Association. Where the 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; Where non-monetary property is used as capital contribution, the formalities for the transfer of property rights shall be handled according to law.
Where a shareholder fails to pay the capital contribution in accordance with the provisions of the preceding paragraph, he shall be liable for breach of contract to the shareholder who has paid the capital contribution in full and on time.
Judicial interpretation of company law III
Article 13 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 147 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.
Article 18 If the shareholders of a limited liability company fail to perform or not fully perform their capital contribution obligations, and the transferee knows or should know that the company requests the shareholders to perform their capital contribution obligations, and the transferee bears joint and several liabilities, the people's court shall support it; Where the creditors of the company bring a lawsuit to the shareholders in accordance with the provisions of the second paragraph of Article 13 of these Provisions, and at the same time request the transferee to bear joint liability for this, the people's court shall support it.