Author: Li Mei Lawyer
< h1 class="pgc-h-arrow-right" > Court Summary:</h1>
A company that, by resolution of the shareholders' meeting, dismisses the shareholders who have not fulfilled their capital contribution obligations or withdrawn from the qualifications of the shareholders who have contributed capital, shall meet certain conditions and procedures. The severe measure of disqualification of shareholders should only be applied to situations of serious breach of capital contribution obligations, namely "failure to contribute capital" and "withdrawal of full capital contribution", and failure to fully fulfill the capital contribution obligation and withdrawal of part of the capital contribution should not be included.
<h1 class="pgc-h-arrow-right" > Case Brief:</h1>
Chongqing Zhengtong Communications Holdings Co., Ltd. (hereinafter referred to as Zhengtong Company) and Li Wan's resolution confirmation dispute:
On May 28, 2013, the pre-establishment articles of association of Zhengtong Company stipulated: "First, the registered capital of the company is 10 million yuan, of which Li Wansui subscribes 820,36384 yuan, with a capital contribution ratio of 8.20%. On May 28, 2013, the first phase of investment was 2 million yuan, of which Li Wansui contributed 164,072,780 yuan, accounting for 1.64% of the registered capital. The remaining capital contribution was paid in full before May 27, 2015, of which Li Wan's contribution was 656291.06 yuan, accounting for 6.57% of the registered capital. 2. The resolution on the matters to be discussed at the meeting of shareholders shall be passed by all shareholders, and the resolution on the amendment of the company's articles of association, the increase or decrease of the registered capital, and the merger, division, dissolution or change of the form of the company shall be approved by all shareholders. ”
On May 29, 2013, Zhengtong Company was registered and established through industrial and commercial registration.
On November 19, 2013, Zhengtong Company made a resolution of the shareholders' meeting (Li Wanyun did not participate): "First, the remaining registered capital of 8 million yuan was paid in advance. 2. Resolutions on the matters to be discussed at the meeting of shareholders shall be approved by shareholders representing more than half of the voting rights, and resolutions on the amendment of the company's articles of association, increase or decrease in registered capital, and the merger, division, dissolution or change of the form of the company shall be approved by the shareholders representing more than two-thirds of the voting rights. ”
On September 25, 2014, Zhengtong Company sent a reminder letter to Li Wannan, requesting Li Wanxian to pay the company a full capital contribution of 821,000 yuan by September 30, 2014. The mail was signed for September 28, 2014.
On October 28, 2014, Zhengtong Company made a resolution of the shareholders' meeting: "After the company's reminder, Li Wan's servants failed to pay the registered capital in accordance with the regulations and did not fulfill the shareholders' capital contribution obligations, and Li Wan's qualifications as shareholders were released from immediate effect." ”
Subsequently, Li Wangong filed a lawsuit with the court, requesting that the resolution to disqualify Zhengtong Company from its shareholders on October 28, 2014 be invalid. The Chongqing No. 2 Intermediate People's Court rendered the (2015) Yu'er ZhongFa Min Zhong Zi No. 01866 Civil Judgment, which finally ruled that the resolution of Zhengtong Company to disqualify Li Wan's shareholders was invalid.
< h1 class="pgc-h-arrow-right" > court gist:</h1>
First, the basis on which Zhengtong Company disqualified Li Wan's shareholders was invalid for Li Wan's servants. In the absence of the excluded shareholder and unable to express his intention on the matter under discussion, the exclusion of the shareholder and the direct convening of the shareholders' meeting and the formation of a shareholders' meeting resolution containing an amendment to the articles of association of the company have been violated by the excluded shareholders' statutory rights under Article 4 of the Company Law, so the resolution is of course invalid for the excluded shareholders.
Second, Zhengtong Company's reminder to shareholder Li Wanxian did not leave a reasonable period of time for shareholders. The reminder required Li Wanxian to pay the capital contribution of 821,000 yuan in full before September 30, 2014, and the reminder letter was only signed on September 28, 2014, when Li Wanxian received the reminder letter for payment of capital contribution, it was only two days from the time limit for capital contribution, and the amount of capital that needed to be paid was relatively large, and the time for Zhengtong Company to prepare for li wan's contribution was too short and should not be considered as a reasonable period.
<h1 class="pgc-h-arrow-right" > lesson summary:</h1>
When a limited liability company disqualified a shareholder in the form of a shareholders' meeting resolution, the following conditions need to be met:
1. The shareholder seriously violates the obligation to contribute capital. It is limited to the situation where the shareholder completely fails to perform the capital contribution obligation or withdraws all the capital contribution, and does not include the situation where the shareholder only performs part of the capital contribution obligation and withdraws part of the capital contribution.
2. Pay or return after being reminded by the company. In the event of the above-mentioned serious breach of the capital contribution obligation by the shareholder, the company must go through a legal reminder procedure.
3. The shareholder has not paid or returned the capital contribution within a reasonable period of time. At the same time, the company shall leave a reasonable period of time for the shareholder according to the objective circumstances such as the amount of capital contributed by the shareholder.
4. The basis of the company's articles of association for making the resolution to terminate shall be binding on the shareholder. The procedures and contents of the amendment of the articles of association of the company must comply with the relevant regulations, otherwise the basis for the disqualification of the shareholder may be determined by the court to be invalid for the shareholder.