China's Company Law stipulates that shareholders have the right to transfer all or part of their capital contribution in a legal way. While the equity is freely transferred, the disputes caused by the equity transfer are also the most common in company litigation.
To sum up, the legal risks of equity transfer are mainly divided into two categories, namely civil legal risks and criminal legal risks.
I. Civil legal risks
In civil law, equity transfer involves three kinds of legal risks: the transferor's equity defect, the transferee's payment default and the transfer procedure defect.
(a) the transferor's equity defects
According to the provisions of the company law, the shareholders of a limited liability company are liable to the company to the extent of their subscribed capital contribution; Shareholders of a joint stock limited company shall be liable to the company to the extent of the shares subscribed by them. The company is liable for its debts with all its property. Therefore, shareholders' full performance of capital contribution obligations is the basis for shareholders to enjoy shareholder rights and the company to undertake foreign debts.
According to the current laws and regulations and judicial practice, the transferor's equity defects include the transferor's violation of capital contribution obligations, the transfer of equity by nominal shareholders and the repeated transfer of equity. Among them, shareholders' violation of capital contribution obligations is manifested as insufficient capital contribution and withdrawal of capital contribution.
1, violating the obligation of capital contribution.
Failure to fulfill the obligation of capital contribution, failure to fully fulfill the obligation of capital contribution, and capital contribution obtained from illegal crimes all constitute insufficient capital contribution.
Failure to fulfill the obligation of capital contribution means that the registered shareholders of the company fail to make capital contribution within the agreed time limit in accordance with the provisions of the law and the articles of association, or the shareholders who fail to fulfill the obligation of capital contribution fail to pay within a reasonable period after being urged by the company; And forging relevant bank deposit certificates, entrusting a third party to advance capital, issuing false capital verification reports or adopting other fraudulent means, falsely reporting registered capital, deceiving the company registration authority, and obtaining false capital contribution for company registration. The essence of false capital contribution is no capital contribution.
The investor's contribution in the form of property that does not enjoy the right of disposition is not in line with the exception of Article 106 of the Property Law; Using the allocated land use right as capital contribution, or using the land use right to set a right burden, and failing to go through the land change procedures or relieve the right burden within a reasonable period of time; Using non-monetary property that has not been appraised and valued according to law, and the price appraised by a legally qualified appraisal institution is obviously lower than the price stipulated in the articles of association; The company, other shareholders or creditors of the company raise objections, and the shareholders fail to go through the formalities of ownership change within a reasonable period of time, and there are properties such as houses, land use rights or intellectual property rights that need to be registered, but they have not been delivered to the company for use, or they have been delivered to the company for use but have not gone through the formalities of ownership change; If an investor makes a contribution with the equity of another company, and the company, other shareholders or creditors of the company raise objections, and within a reasonable period specified by the people's court, it cannot be proved that the contributed equity is legally held by the investor and can be transferred according to law, that the contributed equity has no defects or rights burden, and that the investor has fulfilled the legal procedures for equity transfer, it shall be deemed that the contributing shareholder has not fully fulfilled his capital contribution obligations according to law.
If the equity is obtained with money obtained from corruption, bribery, embezzlement, misappropriation and other illegal crimes, the law does not protect the equity. When investigating and dealing with illegal and criminal acts, its equity shall be disposed of by auction or sale.
2. Nominal shareholders transfer equity.
Based on the company's publicity and trust in registered matters, the equity transfer with registered shareholders will still fall into the trap of nominal shareholders. Where a nominal shareholder transfers the equity registered in his name, the actual investor may request the people's court to determine that the disposition of the equity is invalid on the grounds that he enjoys actual rights to the equity.
3. Repeated transfer of equity
If the original shareholder's equity registered in his name after many transfers is not registered with the company registration authority, the transferee shareholder may request the people's court to determine that the disposition of the equity is invalid on the grounds that he has actual rights to the equity.
(2) The transferee defaults in payment
The transferee's main obligation in the equity transfer is to pay the transfer price immediately and go through the formalities of industrial and commercial change registration in accordance with the transfer agreement. In this process, the transferee may have two kinds of breach of contract:
1. Failure to pay the transfer consideration before handling the industrial and commercial change registration constitutes the liability for contracting fault;
2. The failure of shareholders to pay all the transfer price after the completion of industrial and commercial change registration constitutes a breach of contract.
The main reasons for the transferee's breach of contract are: on the one hand, the transferee has no complete willingness to transfer or ability to pay; On the other hand, the transferor did not communicate with the transferee in depth, did not investigate the transferee's credit and strength beforehand, and did not ask for effective guarantee.
(3) Defects in the transfer procedure
Article 71 of the Company Law stipulates that shareholders of a limited liability company may transfer all or part of their shares to each other. Shareholders' transfer of equity to persons other than shareholders shall be approved by more than half of other shareholders. Shareholders shall notify other shareholders in writing to agree to the transfer of their shares. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity; Do not buy, as agreed to transfer.
Procedural defects mainly appear in shareholders' external transfer, which infringes on shareholders' preemptive right, and may lead to the legal consequences that shareholders of the company sue for equity transfer disputes, demand cancellation of equity transfer agreement and industrial and commercial change registration, and the equity transfer contract signed and performed by both parties is invalid.
Procedural legal risks are mostly caused by negligence of the transferee, but a few transferees use procedural defects to maliciously occupy the transferee's funds, which requires the transferee to respect the legal provisions and accept the transferee according to law.
Second, criminal legal risks.
Criminal offences involving both parties to the equity transfer (mainly the transferor) have the crime of falsely reporting the registered capital; Common criminal cases involving transfer include the crime of illegally absorbing public deposits and the crime of illegally transferring or reselling land use rights.
(1) Falsely reporting a huge amount of registered capital, with serious consequences or other serious circumstances, which constitutes the crime of falsely reporting registered capital.
According to the provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the standards for the prosecution of economic crimes, anyone suspected of one of the following circumstances shall be prosecuted for the crime of falsely reporting registered capital:
1. The paid-in registered capital is lower than the statutory minimum registered capital, and the amount falsely reported by a limited liability company accounts for more than 60% of the statutory minimum, and that by a joint stock limited company accounts for more than 30% of the statutory minimum;
2. The paid-in registered capital reaches the statutory minimum, but the registered capital is still falsely reported, and the registered capital of a limited liability company is more than one million yuan, and that of a joint stock limited company is more than ten million yuan;
3. The cumulative amount of direct economic losses caused to investors or other creditors by falsely reporting the registered capital is more than100000 yuan;
4, although not up to the above amount standard, but has one of the following circumstances:
(1) Having been punished by the administration for more than two times for falsely reporting the registered capital, and falsely reporting the registered capital;
(2) Bribing the person in charge of company registration or engaging in illegal activities after registration.
Whoever falsely reports a huge amount of registered capital, with serious consequences or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined not less than 1% but not more than 5% of the registered capital.
Where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
(2) The crime of illegally absorbing public deposits.
In recent years, private equity (PE) and venture capital (VC) have become more and more popular. While solving the problems of capital, technology and management for small and medium-sized enterprises, there have also been many criminal cases called equity investment, which are actually "illegally absorbing public deposits or absorbing public deposits in disguise", resulting in heavy losses for equity investors.
There are three main forms of illegally absorbing public deposits with equity transfer as bait:
1, illegally absorbing funds by investing in stocks;
2. Illegal absorption of funds by means of transfer of forest rights or management on behalf of others;
3. Without the true contents of issuing stocks and bonds, illegally absorbing funds by falsely transferring equity or selling fictitious bonds.
According to Article 3 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising, if any of the following circumstances occurs, criminal responsibility shall be investigated according to law.
1. Individuals illegally absorb or absorb public deposits in disguised form, the amount is more than 200,000 yuan, and units illegally absorb or absorb public deposits in disguised form, the amount is more than 6,543,800 yuan;
2. Individuals illegally absorb or disguise more than 30 public deposit objects, and units illegally absorb or disguise more than 150 public deposit objects;
3. Individuals illegally absorb or absorb public deposits in disguised form, resulting in depositors' direct economic losses of more than 65,438+10,000 yuan, while units illegally absorb or absorb public deposits in disguised form, resulting in depositors' direct economic losses of more than 500,000 yuan;
4. Causing adverse social impact or other serious consequences.
Whoever illegally absorbs public deposits or absorbs public deposits in disguised form, thus disrupting the financial order, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan.
If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.
(3) The crime of illegally transferring or reselling land use rights.
According to Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Destruction of Land Resources and Illegal Transfer or Reselling of Land Use Rights for Profit, under any of the following circumstances, the illegal transfer or reselling of land use rights is "serious", and in accordance with the provisions of Article 228 of the Criminal Law, the crime of illegal transfer or reselling of land use rights is convicted and punished:
1, illegally transferring or reselling more than five mu of basic farmland;
2, illegal transfer, reselling more than ten acres of arable land outside the basic farmland;
3, illegal transfer, reselling other land more than twenty acres;
4, illegal profits of more than five hundred thousand yuan;
5. Illegal transfer or reselling of land is close to the above-mentioned quantitative standards and has other bad circumstances, such as administrative punishment or serious consequences caused by illegal transfer or reselling of land use rights.
Article 228 of the Criminal Law stipulates that anyone who, for the purpose of making profits, illegally transfers or resells land use rights in violation of land management regulations, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined not less than 5% but not more than 20% of the price of illegally transferring or reselling land use rights; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined not less than 5% but not more than 20% of the price of illegal transfer or reselling of land use rights.
In the practice of company equity transfer, the charge involved in this crime is generally to transfer the company equity as a whole, in order to achieve the purpose of transferring the only property under the company name-the right to use state-owned land.
Third, risk prevention.
For the transferor, the main concern is the payment risk of the transferee. Therefore, it is necessary to examine the strength and credit of the transferee, and bank guarantee, guarantee company guarantee, asset mortgage and combined installment payment can all be effectively prevented.
At the same time, the shareholders of the transferring company are also very concerned about the personal conduct, management team, management level and market competitiveness of the transferee shareholders.
Comparatively speaking, the transferee needs to spend more energy to prevent the risk of equity transfer. So, how to effectively prevent it?
For the transferor, the main concern is the payment risk of the transferee. Therefore, it is necessary to examine the strength and credit of the transferee, and bank guarantee, guarantee company guarantee, asset mortgage and combined installment payment can all be effectively prevented.
At the same time, the shareholders of the transferring company are also very concerned about the personal conduct, management team, management level and market competitiveness of the transferee shareholders.
Comparatively speaking, the transferee needs to spend more energy to prevent the risk of equity transfer. So, how to effectively prevent it?
As an investment strategy, equity investment should also follow the principle of "know yourself and know yourself, and fight every battle" in Sun Tzu's Art of War. Know yourself and yourself, one wins and one loses; Every war will be dangerous if you don't know each other and your friends.
(1) confidant
A confidant includes knowing what you want and what you are capable of achieving your goals.
In the equity transfer, the transferee should clearly know what kind of equity he wants to transfer. And it has complete payment ability to realize equity transfer, and there will be no default due to payment ability.
(2) Know yourself.
The so-called understanding of the other party mainly includes a comprehensive understanding of the transferring company and the transferring shareholders.
The investigation of the transfer company and shareholders should be based on professional risk control lawyers. At present, there are lawyers and law firms specializing in corporate legal affairs in China. They have rich experience and considerable skills in this field. In the pre-investigation stage of equity transfer, risk control lawyers, on the basis of due diligence on the transferring shareholders and the company, know about the transferring company's property rights structure, corporate governance structure, contract management, finance, taxation, intellectual property, project investment and financing, labor and personnel, major litigation and other aspects, as well as the transferring shareholders' personal credit, past experience, knowledge, conduct and transfer reasons, and analyze, evaluate, warn and report the legal risks of the transfer accordingly.
Therefore, lawyers will play a major role in the early warning and risk control of transfer risk, which can effectively reduce the transaction risk to a certain extent and ensure the smooth transaction.
At the same time, risk control lawyers can participate in non-litigation business such as transfer plan planning, full negotiation, contract drafting and industrial and commercial change registration. To avoid the secondary risks caused by contract management.