Government Legal Services Team: Huaicheng lawyer
Edit | July
Author | Huaicheng lawyer Wen Bo
Wen Bo
Liaoning Huaicheng Law Firm
Founding Partner
After July 1st, you will find a magical sight:
The market suddenly became bright and clear, the sun and the moon were shining, and it was peaceful and clear.
Those who do business try not to owe money, and if they really can't owe money, they are busy dragging creditors to discuss solutions.
All of a sudden, society has become credit-oriented and harmonious.
Is it too strong to push the back, and we can't go back, we will never go back...
To a certain extent, the new company law may single-handedly push the world to the realm of civilization that abides by contracts and is honest and trustworthy.
All this is because after July 1st, the new company law came into force!
The legislators of the new company law have created a sword in the company law, and this sword hangs over the heads of the company's directors, supervisors and senior executives at all times.
There are gods above three feet, and gods are buried under three feet.
The original Company Law stipulates that the company owes money to the company, and in principle, it has nothing to do with the directors, supervisors and senior executives who have the power to govern and operate the company.
Shareholders can rely on KPIs, BSC (balanced scorecard) and other performance appraisals to stimulate directors, supervisors and senior executives, and use the company's articles of association and management system to restrain directors, supervisors and senior executives.
The purpose is one, to bundle the interests of the company with the personal interests of directors, supervisors and senior executives.
However, the company's debts are still the company's business, and the directors, supervisors and senior executives are not liable for compensation, joint and several liability, or anything.
After July 1, if the company has a dispute over debts, there is a high probability that directors, supervisors and senior executives will be jointly and severally liable or liable for compensation.
Photo: @水曰皿
Then the directors, supervisors and senior executives will not do it, why should a worker, at most be regarded as a senior worker, why should he go bankrupt and compensate his wife and children and take responsibility for the shareholders?
After 30 years of vicissitudes, the new Company Law, which has been turned upside down, refines the joint and several liability of shareholders, directors, supervisors and senior executives, strengthens the protection of the interests of creditors, and provides more ways for creditors to realize their creditor's rights.
There are at least 12 ways to realize creditors through litigation to make their wishes come true, and the bosses who owe debts are miserable.
1. Sue the parent company and bear joint and several liability for the company's debts.
Paragraph 1 of Article 23 of the new Company Law stipulates that if a shareholder of a company abuses the independent status of the company as a legal person and the limited liability of shareholders to evade debts and seriously damage the interests of the company's creditors, he shall be jointly and severally liable for the company's debts, that is, the "vertical negation" of the company's personality.
Paragraph 3 of Article 23 of the New Company Law stipulates that a company with only one shareholder shall be jointly and severally liable for the company's debts if the shareholders cannot prove that the company's property is independent of the shareholder's own property.
Among them, a wholly state-owned company belongs to this kind of company with only one shareholder, and the creditor can file a lawsuit with the parent company as a co-defendant.
Moreover, in trial practice, the principle of reversal of the burden of proof is applied, and the judge will assign the burden of proof to prove that "the property of the subsidiary is independent of the shareholder's own property" to the parent company.
If it cannot be proved, it will be jointly and severally liable for the debts of the subsidiary.
2. Sue the brother company and bear joint and several liability for the company's debts.
Paragraph 2 of Article 23 of the new Company Law stipulates that if a shareholder uses two or more companies under its control to carry out the acts specified in the preceding paragraph, each company shall be jointly and severally liable for the debts of either company.
If the preceding paragraphs 1 and 3 of Article 23 are the longitude line of the "vertical negation" of the company's personality that was originally stipulated in the old company law, the shareholders are jointly and severally liable for the company's debts.
Paragraph 2 of Article 23 adds horizontal joint and several liability between companies, i.e., the "horizontal legal person" personality denial system, which is the latitude line for shareholders to bear joint and several liability for corporate debts.
Is there a sense of déjà vu that is inescapable, which instantly reminds people of the magnificent Skynet that is negligent but not leaky.
Article 23 broadens the path for creditors to protect their rights, that is, "two or more companies controlled by shareholders" includes not only horizontal affiliated companies (brother companies), but also vertically affiliated companies (parent and subsidiary).
As long as there is a de facto confusion of personality between the companies and is used by shareholders to evade debts, under the provisions of the new Company Law, the related companies are jointly and severally liable to creditors.
This trick is bound to be applied by the majority of creditors in trial practice, and this system will become a "star-absorbing law" trick for creditors to realize their creditor's rights.
3. Sue the shareholder and request the court to order the shareholder to pay in the capital contribution and pay off the creditor directly.
According to Article 47 of the new Company Law, the registered capital of a limited liability company shall be the amount of capital contribution subscribed by all shareholders registered with the company registration authority.
The amount of capital contribution subscribed by all shareholders shall be paid in full by the shareholders within 5 years from the date of establishment of the company in accordance with the provisions of the articles of association.
Before recovering the debt, the creditor shall first make a prescribed action and log in to the national enterprise credit information publicity system network to determine whether the shareholders of the debtor company have actually paid their capital contributions in accordance with the provisions of the articles of association, or whether the actual value of the non-monetary assets actually contributed is significantly lower than the amount of capital contributions subscribed.
If so, apply to the market supervision and administration bureau of the place where the debtor is registered for industry and commerce to obtain paper materials, and file a lawsuit against the shareholders of the debtor company as co-defendants, requesting the court to order the shareholders to pay in the capital contributions.
Particular attention was paid to the addition of an application requiring the shareholder to pay the creditor directly.
4. The founding shareholder of the suing limited company or the promoter of the joint-stock company, as a co-defendant, shall be jointly and severally liable for the obligation to make capital contributions.
Article 50 of the new Company Law stipulates that if a shareholder fails to make the actual capital contribution in accordance with the provisions of the articles of association at the time of the establishment of a limited liability company, or the actual value of the non-monetary property actually contributed is significantly lower than the amount of the subscribed capital contribution, the other shareholders at the time of establishment shall be jointly and severally liable with the shareholder to the extent of the insufficient capital contribution.
Under the framework of the new Company Law, the amount of capital contribution subscribed by all shareholders shall be paid in full by the shareholders within five years from the date of establishment of the company in accordance with the provisions of the articles of association.
Article 99 of the new Company Law deletes the phrase "shareholder supplementary payment" and amends it to mean that "the other promoters and the promoter" shall be directly and severally liable, indicating that if any promoter fails to fulfill the obligation of capital contribution, the other promoters will also be directly jointly and severally liable.
That is to say, on the basis of the previous third move, you can further investigate and find the shareholders at the time of the establishment of the company, if it is a joint-stock company, the promoters, and then wipe out all the founding shareholders or promoters and sue them all.
Photo: @水曰皿
5. The director who sues the responsibility is a co-defendant and bears the obligation of capital verification, reminder and compensation.
Article 51 of the new Company Law stipulates that after the establishment of a limited liability company, the board of directors shall verify the capital contribution of the shareholder, and if it is found that the shareholder has failed to pay the capital contribution stipulated in the articles of association on time, the company shall issue a written reminder to the shareholder to call for the capital contribution.
If the company fails to perform the obligations specified in the preceding paragraph in a timely manner and causes losses to the company, the responsible director shall be liable for compensation.
This provision is complementary to the shareholders' obligation to make capital contributions, and the new Company Law adds the capital call obligation of the board of directors to the directors' duty of diligence.
That is, after the establishment of a limited liability company, the board of directors has the obligation to verify the capital contribution of shareholders.
If it is found that a shareholder has failed to pay the capital contribution stipulated in the articles of association on time, the company shall issue a written reminder to the shareholder to call for the capital contribution.
If the company fails to perform the collection obligation in a timely manner and causes losses to the company, the responsible director shall be liable for compensation.
There is no doubt that the birth of this provision has opened up a new path for creditors to realize their claims.
That is to say, when the creditor pursues the capital contribution obligation of the shareholder who has not contributed capital, the director who is responsible for the collection but fails to do so can also claim its liability for compensation.
How many defendants are there from the debtor company, to the founding shareholders or promoters, to the directors?
Imagine a scenario like this, in the trial of a debt dispute, how many chairs and how many people will have to sit in the dock of the courtroom? The scene will probably be as spectacular as the case of illegal fundraising.
6. Sue shareholders, withdraw capital contributions, and sue directors, supervisors and senior executives for joint and several liability
Article 53 of the new Company Law prohibits shareholders from withdrawing capital contributions after the establishment of a company.
In case of violation of the provisions of the preceding paragraph, the shareholders shall return the capital contributions withdrawn;
If losses are caused to the company, the responsible directors, supervisors and senior managers shall be jointly and severally liable for compensation with the shareholders.
According to this provision, the creditor may require the shareholder to bear supplementary liability for the part of the debt that cannot be discharged within the scope of the principal and interest of the withdrawn capital contribution, and pursue other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution, and bear joint and several liability for this.
7. Sue the shareholder, pay the capital contribution in advance, and request the court to order the shareholder to pay off the creditor directly.
Article 54 of the new Company Law provides that if the company is unable to pay off its debts as they fall due, the company or the creditors of the due claims have the right to require the shareholders who have subscribed for capital contributions but have not yet reached the deadline for capital contributions to pay their capital contributions in advance.
That is, if the company is unable to pay off the due debts, the maturity of the capital contribution will be accelerated.
According to this article, as long as one condition is met, "the company cannot pay off the debts that fall due", it can contribute capital to accelerate the maturity.
In addition, as in the previous 3rd move, a special application needs to be filed.
The capital contribution paid in advance under Article 54 is not an individual repayment of supplementary liability to creditors, but a fulfillment of capital contribution obligations to the company, the so-called "warehousing rules".
After the implementation of the new Company Law, if the company does not claim that the shareholder should pay the capital contribution in advance, but the specific creditor claims that the capital contribution will expire at an accelerated date, the issue of whether the court can order the shareholder to repay the creditor directly to avoid the creditor facing the dilemma that the creditor's rights may be difficult to enforce even if the creditor wins the lawsuit, needs to be further clarified in subsequent trial practice.
However, it should still be mentioned that after a period of trial practice, it is likely that it will be included in the discretion of judges, and judges will make their discretion based on the original legislative intent.
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