First of all, this article is about "accepting relational burdens on corporate debts". The so-called "accepting relational burdens on corporate debts" refers to the scope of capital contributions that are due but unpaid. Accept joint and several repayment obligations for the company's debts. This is a legal liability arising from shareholders' violation of investment obligations. In the text of some equity transfer agreements, you will occasionally see covenant conditions such as "the transferor will not accept liability for the company's debts before the equity transfer." This is not accepting responsibility as mentioned in the title of the article, it is exactly two things. Shareholders who have not fulfilled their investment obligations must bear certain legal liabilities for the company's debts. This is a relatively common type of case in current legal practice, and it is also a litigation method often used by corporate [creditors] to fulfill their creditor's rights.
Next, let us use an actual case to analyze what should be done in this situation?
Zhu is a shareholder of Company A who participated in the capital increase. Before Zhu's investment, the original shareholders of Company A also had a situation where they had not fulfilled their investment obligations, that is, they had not paid in their capital after the due date stipulated in the company's regulations. What makes sense is that after Zhu invested in Company A in the form of capital increase, he did not actually pay the capital increase to the company. This is really "not a family, not entering the same door." However, before Zhu became a shareholder of Company A, Company A incurred a debt, which was later decided by the People's Court through litigation, and then entered the stage of compulsory enforcement. At the request of the execution petitioner, the People's Court included all shareholders of Company A as persons to be executed, including Zhu. Zhu was dissatisfied with this and cited several reasons, one of which was that the company's debt occurred before he became a shareholder of Company A, and he should not be held responsible for it.
In 2017, Zhu filed a complaint to the Nantong Intermediate People’s Court of Jiangsu Province regarding this matter.
Plaintiff Zhu’s petition requests are:
1. Request to confirm that plaintiff Zhu is not the person to be executed in the (2014) Tongzhong Republic of China Case No. ###, and Stop the execution of Zhu’s property.
2. Demand that the two defendants accept the litigation costs of the case.
The reasons given by Zhu are:
1. Zhu is not a shareholder of Company A, and the relationship between him, Yang and Company A is a creditor's right and debt law involving clear shares and actual debts. Contact, and ensure the execution of creditor's rights by changing the form of equity registration. (2017) The enforcement ruling No. Su### is based on the industrial and commercial filing materials. It is wrong to determine that Zhu has not fulfilled the capital contribution obligation and to add Zhu as the person subject to enforcement.
2. Taking a step back, even judging from the situation, although Zhu is registered as a shareholder of Company A, he does not have to bear the burden of the company's debt-bearing relationship that occurred before the capital increase. Begging the people's court to support the plaintiff's petition. In order to conclude the focus, the text does not pay attention to the first reason raised by Zhu. Although it does not excerpt the relevant ruling content, it does not make any analysis or comment. The defendant (that is, the company's creditor and the applicant for compulsory execution) believes that the Supreme People's Court promulgated the "Provisions of the Supreme People's Court on the Change of Owner's Geometric Issues in Civil Enforcement" in 2016. According to the above-mentioned legal provisions, the case There is nothing wrong with adding the plaintiff Zhu as the person subject to execution during the execution. Regarding the issue of whether the plaintiff Zhu should bear liability for the debts incurred before Company A’s capital increase, the People’s Court of First Instance made a definite conclusion, holding that the company should bear corresponding legal liability for the company’s debts incurred before the capital increase.
The People's Court of First Instance held that:
Article 3 of the "Public Law" stipulates that a company is an enterprise legal person, has independent legal person property, and enjoys legal person property rights. The entirety of the company's wealth bears the burden of the company's debts. The shareholders of a limited liability company bear liabilities to the company limited to the amount of their subscribed capital contribution. The plaintiff in this case, Zhu, became a shareholder of Company A through equity transfer and capital increase, and should be responsible for Company A within the scope of the capital contribution he subscribed in accordance with the law.
Article 28 of the "Public Law" stipulates that "Shareholders shall pay on time and in full the amount of capital contribution stipulated in the company's rules. ...Shareholders fail to pay their capital contribution in accordance with the provisions of the preceding paragraph. , in addition to paying the company in full, it should also bear the liability for breach of contract from shareholders who have paid their capital contributions in full and on time. "Article 78 of the First Department Store stipulates that "when a limited liability company reduces the registered capital, the shareholders shall subscribe. The investment of additional capital shall be made in accordance with the relevant provisions of this Law on the payment of investment by limited liability companies.
"It seems that as a shareholder of a company, whether it is an increase of capital or a capital contribution, he has the legal responsibility to pay the capital in full, and in accordance with the provisions of Article 3 of the "Public Act", he should comply with the company's charter within the scope of his subscription. Accept liability.
The extent of whether shareholders can bear liability for a company's debts does not depend on the time before and after the capital increase, but on the extent of the capital contribution they subscribe to. Regarding this, Article 10 of the "Rules for the Implementation of Additional Changes". The seven articles do not differentiate between whether shareholders can bear responsibility for the company's capital increase before and after, but only establish the practical threshold of "failure to invest or insufficient payment of capital", which is consistent with the legislative spirit of the "Public Act" and the relevant certificates. The plaintiff should have anticipated the existing debts of the person being executed when accepting the transfer of equity, so the judgment rule stipulated in Article 17 of the "Rules for the Implementation of Additional Transformations" should be applied to this case. Accordingly, the plaintiff believed that it occurred before the capital increase of Company A. This court did not accept the fact and legal basis that the debt was not accepted as insufficient.
There are two main reasons for the first instance: 1. The legislation and legal evidence did not distinguish between before and after the capital increase; 2. Before investing in Company A, a certain person should have expectations about the company's existing debt.
In my personal opinion, the above reasons of the first-instance people's court are in compliance with the legal provisions and are reasonable in theory, especially for the business parties. The precautionary responsibility is reasonable, that is, Zhu should have expectations about Company A’s debt before investing in shares.
Let’s take a look at the second instance:
The second instance reached Jiangsu Province. Higher People's Court.
In the above petition, Zhu strengthened and detailed the reasons why he was not liable for the company's debts incurred before the capital increase. Zhu believed that: even if the appellant is a company registered with the industrial and commercial registration Shareholders, the jury's decision did not consider the actual circumstances of the company's capital increase, reducing the risks of shareholders' investment, and was inconsistent with the spirit of legislation (2003) No. 33 "The Executive Office of the Supreme People's Court on shareholders' reasons". Reply to the question of whether the company's creditors should be held responsible for the capital increase shortcomings after the company's capital increase",
The obligation of shareholders to perform capital contribution or [capital increase] in accordance with their commitments is a legal capital replenishment obligation vis-à-vis society. , the shareholder's liability for capital contribution or capital increase should correspond to the company's creditors' judgment on its responsibility based on the company's registered capital. The loan dispute occurred in 2012, Zhu's capital increase occurred in 2014, and Huang and others are responsible for Company A's liability. The judgment of ability should be based on the company's registered capital in 2012. Whether Company A can repay the debts of Huang and others has no direct causal relationship with whether the subsequent increase in registered capital is in place. Zhu's defective behavior in capital increase only affects the capital increase after registration. The creditors of the company shall bear corresponding responsibilities. The creditors of the company before the capital increase cannot require Zhu to bear responsibility for the subsequent capital increase.
3. The appellant is objectively unaware of the existence of this debt. Appeal. In the process of signing the equity agreement, the original intention was to obtain the true representation of the creditor's rights, and he did not objectively understand and investigate the relevant debts of Company A. Articles 2 and 6 of the "Equity Transfer Agreement" both make it clear that Company A has fully disclosed the company's assets, liabilities, equity, external guarantees and other relevant information. Zhu has not obtained any disclosure information about the debt involved in this case. According to the Nantong Intermediate People’s Court (2014) Tong Zhong Min Chu Zi No. ### Civil Judgment, the lending relationship involved in this case involves the liability of Company A, and Company A’s provision of guarantees has not been recognized by all shareholders. No evidence or materials such as resolutions of Company A's shareholders' meeting were provided to confirm that shareholders who increased capital and invested in shares cannot objectively and comprehensively understand the existence of this debt.
The second-instance court fully accepted Zhu’s above-mentioned reasons and overturned the first-instance judgment.
The court of second instance held in the judgment:
This court held that: A shareholder’s defective behavior in increasing capital is only liable to creditors after the capital increase was registered. There is no corresponding liability for debts. In this case, Huang and Feng’s claims against Company A were formed before Company A’s capital increase and registration, and their judgment on Company A’s liability capacity should be based on the company’s registered capital at that time and its shareholders’ capital contributions at that time. The appellant Zhu only became a shareholder of Company A through capital increase and share purchase on March 6, 2014, and should not bear legal liability for defective capital increase for the company's debts before the capital increase and share purchase.
In summary, the appeal request of the appellant Zhu is established. In accordance with the provisions of Article 170, Paragraph 1, Item 2 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:< /p>
1. The civil judgment No. ### of the Intermediate People’s Court of Nantong City, Jiangsu Province is revoked;
2. Zhu shall not be added to the Nantong Intermediate People’s Court of Jiangsu Province (2014) Tongzhong Civil Judgment The person subject to execution in Chuzi No. ### case.
Four
Finally, let’s take a look at the status of the reexamination application. In this case, the company's creditor Huang and others filed a retrial application with the Supreme People's Court. In the civil ruling of the retrial application, the Supreme People's Court directly repeated the reasons stated in the second-instance judgment without providing additional analysis and opinions, and rejected the retrial application.
Five
Which conclusion of the above three levels of courts is more reasonable and which one is more common? With more than 20 years of experience as a lawyer, he has taught many trainee lawyers. Usually, when trainee lawyers encounter such case study, they will have two modes of thinking:
One is to look at right and wrong according to level. Whichever court has a higher level will consider which conclusion is more authoritative;
The second is that they believe that there is only one view that is correct and reasonable, so they conduct research and analysis to try to prove it.
The first-instance judgment and the second-instance judgment in this case just adopted different judgment perspectives in understanding the balance of interests. The first instance paid more attention to strengthening Zhu's duty of care as a commercial entity when he bought shares, while the second instance paid more attention to the boundaries of the company's creditors' reliance on the debtor's company registration information at that time.