Publisher: Lawyer Xing Zhongxin | Date: July 01, 2022 | Category: Lawyer Essays | 1406 people have read it.
Introduction: This article focuses on the confusion of personality of a one-person company that often occurs in judicial practice, and analyzes the form and standard of proof of property independence of a one-person company through cases.
1. Common forms of evidence for one-person company shareholders to prove that their property is independent of the company's property:
1. Company industrial and commercial file registration information; 2. Company account opening license and company only one Bank statements during the period of being a shareholder; 3. Notarization of the shareholder’s personal property; 4. A statement issued by the company stating that the property of one shareholder is independent of the company; 5. Proof of capital contribution from the shareholder; 6. The company’s tax return; 7. The company’s annual audit report; 8. Special audit report on the company’s current accounts with shareholders; 9. Bank accounts of shareholders are current; 10. Shareholders’ tax returns; 11. The company’s continuous accounting vouchers, account books and financial statements in recent years; 12. Articles of Association and financial system ; 13. Forensic accounting opinions.
2. According to the judicial practice of the court identifying and adopting the above evidence, the following points should be paid attention to when submitting evidence: (1) When providing financial information, shareholders must pay attention to the information continuity and integrity.
Case number: (2017) Guangdong 1202-12 ruling.
Judge points: This court held that “during the review of this case, Huang Peizhi submitted to this court the information of Zhaoqing Duanzhou District Huazhi Real Estate Co., Ltd. in March 2016, and the company’s tax returns from 2014 to 2016. After our court requested Huang Peizhi to provide the accounting vouchers, account books, financial statements and other relevant evidence of Zhaoqing Duanzhou Huazhi Real Estate Co., Ltd. from October 2014 to March 30, 2017, Huang Peizhi still Only some accounting vouchers and audit reports for 2012 were provided. The above evidence is not continuous and complete financial information. This court cannot determine the authenticity of the above evidence, nor can it be determined that the company's assets are independent of Huang Peizhi's personal assets based on the above evidence."
It can be seen from this case that although the shareholders submitted the company’s 2012 tax return, notarial certificate, some accounting vouchers and audit report, and part of the 2016 income statement and balance sheet to the People’s Court, the audit report, The accounting documents and income statement were approved by the court.
(2) Shareholders should pay attention to whether the dispute involved occurred during the period when the shareholder was a single shareholder of the company, and pay attention to the objectivity, standardization and continuity of evidence such as audit reports.
Case No.: (2021) Jingmin Final No. 218 Civil Judgment
Judgment points: The court held that “after the arbitration award confirmed the debt owed by Dongxi Zangtang Company to Zhu Pengcheng Company, Tian Yuanyuan transferred her equity and changed the company type from a one-person limited liability company to a non-one-person limited liability company. As a former shareholder of the company, Tian Yuanyuan must prove that the company and personal accounts are clear and there was no confusion during her tenure as the sole shareholder before she can be exempted from liability in this case. Tian Yuanyuan was a shareholder of Dongxi Caotang Company from September 2012 to June 2019. As the company’s sole shareholder and legal representative, he was responsible for managing the company’s property. However, Dongxi Caotang Company failed to comply with the Company Law of the People’s Republic of China and the “Company Law of the People’s Republic of China”. Although the financial accounting report was prepared in accordance with the Accounting Law of the People's Republic of China and audited by an accounting firm, Dongxi Caotang Company submitted the "Audit Report on the Financial Statements of Beijing Dongxi Caotang Culture Co., Ltd. from 2012 to 2016" issued by Beijing Yongkun Accounting Firm. However, the report was issued on February 2, 2020, and was not audited at the end of each fiscal year in accordance with the law. The time range involved in the audit cannot cover the entire period during which Tian Yuanyuan was a shareholder of the company. Although Dongxi Caotang Company submitted the report from 2012 to 2019. Annual balance sheet and profit and loss statement, but the above materials do not reflect its debt to Zhu Pengcheng Company.
On the contrary, Tian Yuanyuan paid the project payment to Reina Remittance Company in three installments in 2012 and 2013. Therefore, the evidence provided by Tian Yuanyuan and Dongxi Thatched Cottage Company is insufficient to prove that the property of Dongxi Thatched Cottage Company and Tian Yuanyuan's personal property are independent of each other. Tian Yuanyuan's claim that she is independent from the property of Dongxi Thatched Cottage Company cannot be established. ”
(3) After a single shareholder bears the preliminary burden of proof, if the person applying for execution cannot point out that the evidence submitted by the shareholder may constitute a confusion, nor can he submit any evidence that the shareholder and the company constitute a confusion, he shall It is determined that the shareholder’s property and the company’s property are not mixed.
Case number: (2018) Supreme People’s Court Application No. 3516
Judgment points: ..... Huachen Company in 2065438. It was changed to Peng Hailong's sole proprietorship on August 1, 2016, but the company also provided Huachen Company's 2015 and 2016 audit reports, proving that there was no confusion between the company's property and Peng Hailong's personal property. Although Xinba Company did not care about the audit report. It is recognized, but sufficient contrary evidence is not provided to prove the existence of personality confusion. In this case, it should be determined that the shareholder's property and the company's property do not constitute a confusion.
3. How to prevent: daily management suggestions for avoiding hotchpot of a one-person company.
By inverting the burden of proof for property independence, one-person companies place higher requirements on shareholders’ daily business activities. In order to avoid the litigation and enforcement risks of personality denial, shareholders of one-person companies must conduct daily management and litigation. The following issues should be noted:
(1) Bank accounts should be opened independently of each other to avoid the situation where shareholders and the company * * * share accounts or mixed accounts
(2) Conduct annual audits in accordance with the law and prepare annual audit reports in a timely, standardized and complete manner (if the annual audit report is supplemented during the litigation stage, it is generally not supported)
(3) Independently conduct industrial and commercial and tax audit reports with the industrial and commercial and tax authorities. Financial and tax reporting.
(4) Financial accounting standards. Set up a complete and independent accounting department to properly keep accounting books and vouchers; the properties of shareholders and the company should be listed and collected separately, and profits should be accounted for separately. They should be distributed and kept separately.
(5) Financial transactions should be independent and clear, avoid paying contract fees without a contractual basis, and avoid paying rent, water and electricity bills, personnel wages, etc.
Of course, property independence does not prohibit financial transactions between the parent company and its subsidiaries. For normal fund transactions, it is necessary to standardize operations, collect reasonable interest, and prepare and preserve corresponding original documents such as company resolutions and contracts.