1. What is the sentencing standard for the crime of withdrawing capital contribution?
Article 159 of the Criminal Law: If the promoters and shareholders of a company violate the provisions of the Company Law, fail to deliver money, goods or transfer property rights, make false capital contributions, or withdraw their capital contributions after the establishment of the company, and the amount is huge, with serious consequences or other serious circumstances, they shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined at least 2% 10% of the amount of false capital contributions. 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 five years or criminal detention.
Second, what are the objective elements of the crime of withdrawing capital contribution?
Objectively, this crime is manifested as an act that violates the provisions of the company law, does not deliver money or goods or transfer property rights, falsely contributes capital, or withdraws capital after the company is established, with huge amount and serious consequences or other serious circumstances. Specific performance in the following three aspects:
1, which definitely violates the relevant provisions of the Company Law on capital contribution.
The unique nature of a joint stock limited company and a limited liability company determines the capital contribution of the company's promoters and shareholders, which is directly related to the rights and obligations of shareholders in the company. Whether the company can really make full capital contribution in accordance with the provisions of the Company Law is directly related to the normal operation of the company, the company's ability to take responsibility and the interests of creditors and the public. Therefore, the company law clearly stipulates the way of capital contribution and the way of fulfilling the capital contribution obligations of the promoters and shareholders of a limited liability company. Article 80 of the Company Law stipulates: "Sponsors may contribute capital in cash, in kind, industrial property rights, non-patented technology and land use rights. Physical objects, industrial property rights, non-patented technologies or land use rights as capital contributions must be evaluated and priced, and property verification and share conversion must be carried out. " "The amount of contribution made by the promoters with industrial property rights and non-patented technology at a fixed price shall not exceed 10% of the registered capital of a joint stock limited company". Article 82 stipulates: "Where a joint stock limited company is established by means of sponsorship, the promoters shall pay all the shares immediately after they have subscribed in writing the shares issued in accordance with the articles of association; If the investment is made in kind, industrial property rights, non-patented technology or land use rights, the transfer procedures of its property rights shall be handled according to law. " Article 83 stipulates: "Where a joint stock limited company is established by offering, the shares subscribed by the promoters shall not be less than 35% of the total shares of the company". In addition, according to the provisions of Articles 24 and 25 of the Company Law, shareholders of a limited liability company can contribute their capital in cash or in kind, industrial property rights, non-patented technology and land use rights. At the same time, the shareholders of a limited liability company shall pay their respective subscribed capital contributions in full as stipulated in the articles of association. Among them, the capital contribution in cash shall be fully deposited into the temporary account opened by the limited liability company in the bank; If the investment is made in kind, industrial property rights, non-patented technology or land use rights, the transfer procedures of its property rights shall be handled according to law. The Company Law also stipulates that the amount of contribution made by shareholders of a limited liability company with industrial property rights and non-patented technology at a fixed price shall not exceed 20% of the registered capital of the limited liability company. Physical objects, industrial property rights, non-patented technologies or land use rights as capital contributions must be assessed and priced, and shall be handled in accordance with the provisions of laws and administrative regulations.
It is worth emphasizing that for a joint stock limited company, except for the promoters who can make contributions in kind, other shareholders are not allowed to make contributions in kind, industrial property rights, non-patented technology or land use rights, and can only become shareholders of the company in the form of monetary shares.
The above provisions of the Company Law are all about the capital contribution of the company's promoters and shareholders. Violation of these provisions is the above violation of the relevant provisions of the Company Law on capital contribution.
2. There must be an act of withdrawing capital contribution.
First, in violation of the provisions of the Company Law, the company failed to deliver money, physical objects or transfer property rights, and made false capital contributions.
According to the Company Law, the promoters of a joint stock limited company must subscribe for the shares they should subscribe for. Among them, if a company is established by means of sponsorship, the promoters shall subscribe for all the shares that should be issued for the establishment of the company; Where a company is established by offering, the shares subscribed by the promoters shall not be less than 35% of the total shares of the company, and the remaining shares shall be offered to the public. However, because the subscribers who responded to the offer did not have the status of promoters or shareholders before the establishment of the company, that is, they did not have the subject qualification of this crime, so the so-called non-delivery of money, physical objects or untransferred property rights in violation of the provisions of the company law in this crime only refers to the promoters, and generally does not include subscribers other than the promoters. According to the Company Law, the promoters of a joint stock limited company shall pay the subscribed shares in full before the founding meeting of the company; Shareholders of a limited liability company shall pay their subscribed capital contributions in full before applying for company registration. The mode of capital contribution or share payment is basically the same: both can be cash, physical objects, industrial property rights, non-patented technology or land use rights. Based on this, the so-called behavior of making false capital contribution without delivering money, goods or transferring property rights in violation of the provisions of the Company Law mainly includes:
(1) The shareholders of the limited liability company who contributed in cash failed to deposit the cash subscribed in full into the temporary account set up by the limited liability company in the bank within the statutory time limit;
(2) The promoters of a joint stock limited company invested in cash fail to pay in full the subscribed shares in writing within the statutory time limit;
(3) The shareholders and promoters who have contributed in kind, industrial property rights, non-patented technology and land use rights or used them as payment for shares have not gone through the formalities for the transfer of their property rights according to law within the statutory time limit.
Second, in violation of the company law, the company withdrew its capital contribution after its establishment. After the establishment of the company, the promoters and shareholders of the company withdraw their investment, which is explicitly prohibited by Article 209 of the Company Law. The so-called withdrawal of capital contribution includes illegal withdrawal of capital contribution and transfer of capital contribution after the establishment of the company. For example, withdraw its share capital, transfer the funds deposited in the bank as share capital, and transfer the house property rights and land use rights that have been invested at a fixed price to others. However, we should pay attention to distinguish between withdrawing capital contribution and transferring its capital contribution according to law. The legal transfer of capital contribution is only the replacement of shareholders, and its capital still belongs to the capital occupied by the company.
3. It must be an act with huge amount, serious consequences or other serious circumstances. "Huge amount, serious consequences or other serious circumstances" is the main boundary between this crime and non-crime. If the actor makes false capital contribution or withdraws capital contribution, the amount is not large, the consequences are not serious, and there are no other serious circumstances, it cannot constitute this crime.
The absence of one of the above three aspects does not constitute this crime. This crime is optional. As long as the actor violates the provisions of the Company Law by making false capital contributions or withdrawing capital contributions, the amount is huge, the consequences are serious or there are other serious circumstances, which can constitute this crime. It is not necessary to have both false capital contribution and withdrawal capital contribution.