Is it possible to hold a shareholding on behalf of the shareholders?Beijing Third Intermediate People's Court notified the case of the case of shareholders' liability for the trial and typical cases of the case

"Do you also have to bear the responsibility of shareholders on behalf of the shares of others?"

As the company's right holder and investor, the law stipulates that shareholders enjoy the rights of asset income, participate in major decisions and select managers in accordance with the law. At the same time, they also stipulate the investment, liquidation, not abusing the rights of shareholders, etc. Civil legal liability has set up "traffic lights" for equity investment. In order to make the public more objectively and comprehensively understand the legal responsibilities that may bear as a shareholder, and prevent legal risks, on August 30, the Beijing Third Intermediate People's Court held a report on the trial and typical case notification of shareholders' liability for shareholders. The trial of the case and the characteristics of the case, analyzed the reasons for the responsibility of the shareholders, gave prompts and suggestions, and issued relevant cases.

According to Xue Qiang, deputy dean of the Beijing Third Intermediate People's Court, with the development of the market economy, more and more people have the status of shareholders through investment. In recent years The scope, type, and complexity are increasing. In addition to traditional corporate cases, the number of cases that are required to add shareholders to the execution of the executed person's execution also have a significant growth trend. In the past five years, the Beijing Third Intermediate People's Court has concluded 559 corporate cases involving the legal responsibility of shareholders, and the conclusion requires 364 cases of complaint cases for the enforcement of shareholders as the execution of the executed person.

According to analysis, the causes of shareholders 'responsibility are caused by active improper behaviors, such as the abuse of shareholders' rights to harm the interests of the company or the company's creditors, the mix of shareholders and the company's personality, and one -person limited company shareholders cannot prove independence with the company's property, and if they are not liquidated according to law, they will not liquidate the company. Logging out, escape capital, and assist other shareholders to escape capital, major shareholders damage the interests of the company and other shareholders. At the same time, the causes of shareholders' responsibility also have negative inaction of negative performance of obligations. For example, if the obligations have not fulfilled and fail to fulfill the liquidation obligations in time, the company's main property, account book, and important documents cannot be liquidated. Perform the obligations of notifying the creditors and damage the interests of the creditors. In addition, there is a situation based on legal provisions that shareholders are responsible for accelerating their due obligations.

Beijing Third Intermediate People's Court reminds the company's shareholders to avoid other legal liabilities other than limited liability, and the legal risks of the company's establishment, operation, liquidation, cancellation, and equity transfer must be rationally identified to prevent:

01

Arrange registered capital reasonably

Perform the obligations of capital contribution in accordance with the law

After the "Company Law" was revised at the end of 2013, in addition to individual special industries, the company law no longer limits the company's registered capital, and at the same time changed the real -capital payment system to the subscription system, which reduced the company's threshold. Essence However, the subscription does not mean not paying. Under the condition of accelerating the expiration of shareholders' capital capital, the higher the shareholders of shareholders, the greater the responsibility, and the greater the risk. Therefore, shareholders should treat the capital subscription system rationally, and rationally subscribe to registered capital according to the actual business needs of the company to prevent the risk of capital contribution. After the obligation of capital contribution is determined, the shareholders shall pay the fund in time in accordance with the company's articles of association. If you need to modify the company's registered capital, it must be carried out in accordance with the legal procedures, and the corresponding resolutions, notifications, and announcements must be performed in accordance with legal procedures to avoid the responsibility for escape capital and illegal capital reduction.

02

Regulate corporate governance structure

Exercise shareholders' rights in accordance with the law

Establish a standardized financial system to maintain the company's property and shareholder property independence; establish a standardized management system, and maintain the company's personality and shareholder personality independence; establish a standardized legal person governance structure, and clear the division of division of work to ensure the efficient operation of the company. If one -person company is operated, it should establish a sound and legal financial system, conduct annual financial accounting audit in accordance with the law, and strictly distinguish between the company's personal property of the company and shareholders. The perfect corporate governance structure is conducive to establishing an effective firewall between the company and individuals, and avoid shareholders' responsibility for the company's debt due to personality mixed. Shareholders, especially major shareholders and controlling shareholders, should abide by the provisions of legal and corporate articles of association, exercise shareholders 'rights in accordance with the law, shall not use the interests of shareholders' rights to harm the interests of the company or other shareholders and the interests of the company's creditors, and shall not use affiliate transactions to harm the interests of the company.

03

Actively participate in corporate governance

Perform the liquidation obligations according to law

Shareholders, especially small and medium shareholders, should actively participate in the shareholders 'meeting or shareholders' meeting, be good at exercising the rights of shareholders stipulated in the company law and the company's articles of association, attach importance to the right to select and appoint shareholders, and actively consider the decisions of the board of directors, the board of supervisors of the board of supervisors, and the financial accounting report. The internal supervision of the company's power operation closely pays attention to the company's operating abnormalities and effectively prevent and resolve disputes in the company's operation. If the company's poor operation causes more debt or even insufficient debt, shareholders can decide to dissolve or terminate the company and liquidate in time. Capital and liquidation are the statutory obligations of shareholders of limited liability companies. The shareholders should be liquidated in accordance with the law in accordance with the law in accordance with the legal liquidation. The liquidation of the company's debt is liable for liability.

04

Careful transfer, holding equity

Strengthen the sense of risk prevention

In the transfer of equity, for the shareholders of the transferee, the target company should do a good job of due diligence in the target company, comprehensively understand the company's investment, operation, assets and liabilities, especially the actual capital contribution of the shareholders of the transfer party, strictly review the original shareholders of the original shareholders Certificate of capital contribution, register of shareholders, and industrial and commercial registration, to avoid liability for the obligation to contribute to the original shareholders due to the flaws of the original shareholders' investment. The shareholders of the limited liability company are based on the information announced by the commercial registration book of the commercial registration authority. The commercial registration authority does not register and does not record the hidden shareholders. If shareholders transfer their equity, change registration should be processed in time. To hold equity on behalf of the equity, you should make careful decisions, clearly agreed with the actual investor to make rights and obligations, urge the actual investor to fulfill the obligations such as capital capital in a timely manner, enhance the awareness of risk prevention, and avoid legal responsibility for holding shares for others. Bleak

The case issued this time involves the responsibility of shareholders 'escalation of funds and the shareholders' failure to fulfill their contribution obligations. The shareholders do not fulfill the responsibilities of the liquidation obligations. Responsibilities should be assumed under debt. In this regard, Deputy Dean Xue Qiang said that the Beijing Third Intermediate People's Court has always attached importance to the trial of shareholders involved in the company, not only paying attention to protecting the legitimate rights and interests of the company's shareholders, especially the small and medium shareholders, and the trial of the responsibility of the shareholders in accordance with the law. Establish a trial mechanism for related cases, respond to social concerns, and timely release typical cases, give full play to the role of shareholders in improving the corporate governance structure, innovative management mechanism, and enhanced development vitality. surroundings.

Typical Case

Case number one

In August 2018, Company A was revoked by administrative penalties. Shareholders A and shareholders B did not form a liquidation team to liquidate Company A within the statutory period, resulting in a lack of account book volume and unable to liquidate. The company's creditors filed a complaint that shareholders harmed the interest liability of the company's creditors and requested that shareholders should bear joint liability for the company's unpaid debt. Shareholders B argued that their third parties held their shareholders and should not bear responsibility.

The Beijing Third Intermediate People's Court of the Court held that the shareholders of Company A had a negative act of performing the liquidation obligations, which caused Company A to be unable to liquidate and should bear the liability of Company A's debt. Even if there is an equity agency relationship, it is also the internal agreement between shareholders B and third party. The company's external creditors should enjoy publicity and benefits, and cannot be due to the statutory liquidation obligations of shareholders B due to equity on behalf of shareholders B.

Case 2

Company A was established in December 2015, with a registered capital of 1 million yuan. Among them, Li had subscribed for 600,000 yuan, and Feng subscribed for 400,000 yuan, and the capital contribution was on December 5, 2035. In the case of dispute between Guo and the company's service contract, the court made a judgment in 2018: Company A returned 300,000 yuan in Guo and compensated interest losses within 7 days from the date of effectiveness. Later, Guo applied to the court for compulsory execution. After the court filed a case, after the inquiry, the executed person had no property company for execution, and the court ruled that the execution was terminated. After the objections, Guo filed a complaint of the objection, and the person who had added Li and Feng as the executive of the previous case was requested to assume the debt that the company could not settle, and bears the liability for supplementary compensation within the scope of the non -contribution. Li and Feng argued that the contribution he had subscribed for had not yet expired and should not bear responsibility.

According to the trial of the Beijing Third Intermediate People's Court, if the people's courts have done their best to implement the measures, they have no property to implement and have the cause of bankruptcy, but if they do not apply for bankruptcy, the sharing shareholders' unprepared period of subscription will accelerate their expiration. Therefore, Li and Feng were added to the executed person of the case, and the debt of the company could not be settled.

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Supply: Beijing Third Middle School

Text: Yu Haibo

Edit: Zhao Meilan Yao Rihui

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