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On May 10, 2023, Zhiguang Company filed an enforcement objection with the court of first instance, applying to add Cao Moumou and Tong Moumou, shareholders of Changxin Company, as the persons subject to enforcement in Case No. (2021) Zhi No. 6792. On May 16, 2023, the court of first instance issued the (2023) Zhiyi No. 395 Enforcement Ruling, which stated: According to Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement, as a for-profit legal person subject to enforcement, whose assets are insufficient to pay off the debts determined in the effective legal documents, the applicant for enforcement applies for the modification or addition of shareholders who have not paid or failed to pay the capital contributions in full, Where the investor or the initiator who bears joint and several liability for the capital contribution in accordance with the provisions of the Company Law is the person subject to enforcement, and bears responsibility in accordance with law to the extent that the capital contribution has not yet been paid, the people's court shall support it. According to the law, shareholders shall pay in full and on time the amount of capital contributions subscribed by them as stipulated in the articles of association. The shareholder capital contribution subscription system is an express provision of the current company law, and the interests of shareholders in the time limit for paying capital contributions shall be protected by law. Although Cao Moumou and Tong Moumou, as shareholders of the company, have not paid in the capital contribution, but the capital contribution period agreed in the articles of association has not expired, they do not belong to the "shareholders who have not paid or have not paid the capital contribution in full", and do not meet the circumstances that should be added as prescribed by law, so the ruling rejects Zhiguang Company's application for adding Cao Moumou and Tong Moumou as the persons subject to enforcement.
Dissatisfied with the (2023) Zhiyi No. 395 ruling, Zhiguang Company filed a lawsuit with the court on May 29, 2023.
Zhiguang Company filed a lawsuit with the court of first instance, requesting: 1. to revoke the (2023) Zhiyi No. 395 Enforcement Ruling, and to add Cao XX and Tong XX as the persons subject to enforcement in the enforcement case of Zhiguang Company and Changxin Company (2021) Zhi No. 6792 in accordance with the law; 2. Order Cao XX and Tong XX to bear joint and several liability for the debt 647109 yuan that Changxin Company cannot pay off, as well as the interest on overdue payment and the interest on the debt during the period of delayed performance, within the scope of unpaid capital contribution; 3. The litigation costs of this case shall be borne by Cao XX and Tong XX.
The court of first instance held that, according to Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Alteration and Addition of Parties in Civil Enforcement, if the for-profit legal person as the person subject to enforcement has insufficient assets to pay off the debts determined in the effective legal documents, and the applicant for enforcement applies to change or add the shareholders or investors who have not paid or failed to pay the capital contribution in full, or the initiator who bears joint and several liability for the capital contribution in accordance with the provisions of the Company Law, is the person subject to enforcement, and is liable in accordance with the law to the extent that the capital contribution has not been paid, the people's court should support it. Paragraph 2 of Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) stipulates that if a creditor of a company requests a shareholder who has not fulfilled or has not fully performed its capital contribution obligation to bear supplementary liability for the part of the company's debts that cannot be paid off within the scope of unpaid capital and interest, the people's court shall support it; In addition, under the registered capital subscription system, shareholders enjoy term benefits in accordance with the law. Where a creditor requests a shareholder who has not yet completed the capital contribution period to bear supplementary liability for the company's unpaid debts within the scope of the unpaid capital contribution on the grounds that the company is unable to pay off its debts due to the company's inability to pay off its debts, the people's court will not support it. However, the following circumstances are excepted: (1) in the case where the company is the person subject to enforcement, the people's court has exhausted the enforcement measures and has no property to enforce, and the cause of bankruptcy has been met, but it does not apply for bankruptcy;
In this case, because Changxin Company failed to perform the content of the (2021) Min Chu No. 4482 Civil Judgment, Zhiguang Company applied to the court of first instance for compulsory enforcement, but no property was found in Changxin Company that could be used for enforcement during the enforcement, and the enforcement procedure was terminated. Although Cao XX, Tong XX, and Changxin Company claimed that they could still resume business and pay off debts after a period of time, they did not provide evidence to support it, and Cao XX, Tong XX, and Changxin Company clearly recognized that Changxin Company currently has no other property available for enforcement at present. Therefore, although Cao Moumou and Tong Moumou, as shareholders of Changxin Company, are both subscribed capital contributions, and the date of capital contribution is as of July 14, 2047, which has not yet expired, Changxin Company has no property available for execution and cannot pay off the due debts. Referring to the relevant provisions of the Enterprise Bankruptcy Law of the People's Republic of China, Changxin Company has the cause of bankruptcy, and all parties do not apply for bankruptcy of Changxin Company. Therefore, Zhiguang Company's litigation request to add Cao XX and Tong XX as the persons subject to enforcement is in accordance with the law, and the court of first instance supports it. Cao and Tong, as the current shareholders of Changxin Company, failed to submit evidence to prove that they had fulfilled their capital contribution obligations, and they should bear supplementary liability for the debts that Changxin Company could not pay off within the scope of their unpaid capital contributions.
The first-instance judgment: 1. Revoke the (2023) Zhi Yi No. 395 Enforcement Ruling;2. Add Cao XX and Tong XX as the persons subject to enforcement in the (2021) Zhi 6792 case;3. Cao XX shall bear supplementary liability for the part of the debt that cannot be paid off to Changxin New Energy Technology Co., Ltd. in the (2021) Zhi 6792 case within the scope of the unpaid capital contribution of 3,060,000 yuan; Tong Moumou bears supplementary liability for the part of the debt owed to Changxin New Energy Technology Co., Ltd. in the case (2021) Zhi No. 6792 that cannot be paid off within the scope of the unpaid capital contribution of 2,940,000 yuan;
After the first-instance judgment, Cao XX and Tong XX were dissatisfied and appealed.
The second-instance trial held that the focus of the dispute in this case was: whether Cao XX and Tong XX should be added as the persons subject to enforcement in the enforcement case.
In a case where the company is the person subject to enforcement, where the people's court has exhausted the enforcement measures and has no property to enforce, and the cause of bankruptcy is already met, but it does not apply for bankruptcy, and the creditor requests the shareholders who have not yet completed the capital contribution period to bear supplementary liability for the debts that the company cannot pay off within the scope of the unpaid capital contribution, the people's court shall support it. The existence of a cause of bankruptcy refers to the first paragraph of Article 2 of the Enterprise Bankruptcy Law of the People's Republic of China, that is, "the enterprise legal person is unable to pay off the debts due, and the assets are insufficient to pay off all debts or obviously lack solvency." "Accordingly, the cause of bankruptcy refers to one of two situations: the company is unable to pay its debts as they fall due and the company's assets are insufficient to pay all its debts, the company is unable to pay its debts as they fall due and the company is manifestly insolvent. According to Articles 2 and 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application (I), if the debtor is unable to pay off the <中华人民共和国企业破产法>debts after compulsory enforcement by the people's court, the people's court shall determine that the debtor is unable to pay off the debts due. In this case, Changxin Company failed to perform its obligations as determined in the effective legal documents after compulsory enforcement by the people's court, and there was a situation where "it was unable to pay off its debts after compulsory enforcement by the people's court", and Changxin Company failed to provide other assets that could be used for enforcement, and there was a situation of "obvious lack of solvency". Changxin Company has complied with the above-mentioned relevant laws and judicial interpretations for the determination of bankruptcy causes, and now Changxin Company has not applied for bankruptcy, and Cao and Tong Moumou, as shareholders, should no longer enjoy the benefits of the term, and should bear supplementary liability for the debts that Changxin Company cannot pay off within the scope of unpaid capital. Although Zhiguang Company required Cao XX and Tong XX to bear joint and several liability in this case in the first instance, the scope of liability for joint and several liability was greater than that of supplementary liability, and the court of first instance ordered Cao XX and Tong XX to bear supplementary liability for compensation did not exceed Zhiguang Company's claim.
Second-instance judgment: The appeal was rejected and the original judgment was upheld.