These "subscription traps", you know?

Preface: As we all know, it is "easy" to open a company as a boss now, you set the registered capital, the subscription period is still set by you, our "Company Law" fully respects your freedom of will, but as the saying goes, there is no free lunch in the world, while enjoying these freedoms, have you noticed the "trap" in this?

Misunderstanding 1: The higher the registered capital, the larger the company's card, anyway, there is no need to pay for the time being, and shareholders can set a higher registered capital at will

Brother Xiang: Lawyer Li, I have to ask you a question, I originally opened the company to make the company look taller, make the company's share capital bigger, first the whole small target of 100 million or something, anyway, the share capital is subscribed, don't need to pay now, if you can't pay the money, you have to say two things. The articles of association were templated on the Internet, and the company was opened in three or two clicks, which is really cost-saving and efficient, and the pressing qualification is high enough.

In the days that followed, the company did not operate well and owed a lot of debt. Debt is a matter for the company, and it can't hurt the wife and children shareholders, hehe.

Who knows that there are unforeseen storms in the sky, the debts owed by the company, the creditors also sued our shareholders, saying that our company's articles of association write that the share capital was paid in full when the company was established, we didn't pay it, we have to give money! In the end, we still lost, we have to give money!! What kind of reason is this, isn't our company a limited company, who got this charter?! It's really unfavorable to die, Yu Ji Yu Ji is helpless?!

Lawyer Li: The higher the amount of registered capital, the bigger the muscles you show to the outside world, but the greater the risks and responsibilities you bear, and the registered capital of the company needs to be determined according to the actual operating needs of the company and the personal strength of the shareholders, rather than the higher the better. Otherwise, for a shareholder who, like Brother Xiang, is unable to pay the registered capital when due, not only the creditors of the company can chase him to give money, but the company or other shareholders can ask him to pay it back.

The law stipulates: Article 13 of the Judicial Interpretation of the Company Law: ... Where a creditor of a company requests a shareholder who fails to perform or does not fully perform its capital contribution obligation to bear supplementary compensation for the part of the company's debts that cannot be repaid within the scope of the unpaid capital interest, the people's court shall support it; ...... If a shareholder fails to perform or fails to fully perform its capital contribution obligation at the time of the establishment of the company, and the plaintiff initiates a lawsuit in accordance with the first or second paragraph of this article, and requests the founders of the company and the defendant shareholders to bear joint and several liability, the people's court shall support it; After the promoter of the company assumes responsibility, it can recover from the defendant shareholders.

Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Modification and Addition of Parties in Civil Enforcement: If an enterprise legal person that is the subject of enforcement has insufficient assets to settle the debts determined in the effective legal documents, and the applicant for enforcement applies to change or add a shareholder or capital contributor who has not paid or has not paid the capital contribution in full, or the promoter who bears joint and several liability for the capital contribution in accordance with the provisions of the Company Law, and assumes responsibility according to law within the scope of the capital contribution that has not yet been paid, the people's court shall support it.

Misunderstanding 2: Before the expiration of the subscription period of the company's registered capital, shareholders have absolute protection and can not contribute capital

Xiao Han: Lawyer Li, like Brother Xiang, I randomly got a charter when I opened the company, and I wrote that I would pay up the share capital when the company was established. Later, don't I owe Lao Wang money? I changed the articles of association, wrote the share capital to be paid in full after 30 years, and thought that it was safe now, right? But later, Lao Wang still sued me, I still lost, I have to give money!

Lawyer Li: Shareholders can use the company's registered capital subscription period to fend off the company's creditors, but this is not a universal shield. If the company is executed but there is no money to give, or your original articles of association write that the share capital was paid up yesterday, and you owe Lao Wang money today, and tomorrow you change the subscription period, this shield is useless.

Lao Liu: Small items are fierce! That's too rough, isn't it? Xiao Han is also hindsight, do you think it is so easy to make up for the dead? You see, our articles of association at the beginning of the company write that the company has paid up the share capital for 30 years after its establishment, isn't it safe? Our company also owes Lao Wang no money to give, I will tell Lao Wang, anyway, the company has no money, you love to sue the company, if you lose, you will execute!

Lawyer Li: Lao Liu, you are too naïve, first of all, if the company cannot pay back the money, it can be enforced for shareholders who have not fully contributed capital when due; Secondly, even if the share capital should be paid in full after 30 years, Lao Wang can let you contribute capital to repay the debt in advance.

The law stipulates: Article 6 of the [Minutes of the Nine People]: Under the registered capital subscription system, shareholders enjoy term benefits according to law. The people's court will not support a creditor's request that a shareholder who has not expired the capital contribution period bear supplementary liability for the company's debts that cannot be paid within the scope of the unpaid capital contribution on the grounds that the company cannot pay off its debts when due. However, the following circumstances are excluded: (1) in cases where the company is the subject of enforcement, the people's court exhausts the enforcement measures and has no property to enforce, and the reasons for bankruptcy are met, but it does not apply for bankruptcy; (2) After the company's debts are incurred, the shareholders of the company (general) will resolve or extend the period of capital contribution by shareholders in other ways.

Misunderstanding 3: After the shareholders transfer their shares, the capital contribution obligation is also deemed to be transferred together, and there is no need to bear any capital contribution obligation from then on

Da Zhang: Alas, I think at the beginning, our company's articles of association said that we had to pay up my 1 million share capital at the end of last year, and the company still owed Marco 500,000 yuan at that time, but where do we get money? When drinking together one night, didn't Da Biao say that he took a fancy to our company, and I sold the shares to him, not only can I get out, but I can also make a profit! Just do it! It was too late and fast, when Da Biao and I completed the procedures for transferring shares in two or three days, this kid was bold enough! But this kid not only slashed the price fiercely, but still hasn't given the money to Qi, think about it, it is estimated that this kid is so cut, even if he thinks of it, he will not fill in the 1 million share capital!

Later, Margo sued the company, normal! Debt repayment! Brother Ma also sued Da Biao, saying that he did not pay 1 million share capital, and he had to give money, understand! Who told him not to figure out that I bought shares without paying the company's share capital, and I sold them and got out! Unexpectedly, Brother Ma actually sued me later, what! Didn't I sell all the company's shares to Dabiao, I'm not even a shareholder of the company now, what does the company's debt have to do with me? As a result, I also lost!

Fan Fan: Lawyer Li, I am in a similar situation to Dazhang! I also had to pay up my share capital at the end of the year before last but had no money. The company owed Ma Ge money, but Ma Ge did not add me as a defendant when he fought the lawsuit; Later, the lawsuit was lost, my company was executed and there was no money to give, so I transferred the company's shares to my second uncle, who did not understand anything about farming in the countryside, and I should get out now, right? As a result, Margo pulled me up during the execution, and the court now makes me pay back!

Lawyer Li: Both Da Zhang and Fan Fan have not paid up their share capital according to the deadline written in the charter, so if they transfer their shares to others at this time, will they be able to get out? No! Not only can you not get out, but you may also affect others.

The law stipulates: 1. Article 18 of the Judicial Interpretation III of the Company Law: If the shareholders of a limited liability company transfer their equity if they fail to perform or fail to fully perform their capital contribution obligations, the transferee knows or should know about this, and the people's court shall support the company's request that the shareholder perform the capital contribution obligation and the transferee bear joint and several liability for it; If a creditor of a company files a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these Provisions, and at the same time requests the aforementioned transferee to bear joint and several liability for it, the people's court shall support it. ...... The people's court shall support the transferee's recovery from the shareholder who has not fulfilled or has not fully performed its capital contribution obligations after assuming responsibility in accordance with the provisions of the preceding paragraph. However, unless otherwise agreed by the parties.

2. Article 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Modification and Addition of Parties in Civil Enforcement: If a company that is the subject of enforcement has insufficient assets to pay off the debts determined in the effective legal documents, and its shareholders transfer their equity without performing their capital contribution obligations in accordance with the law, and the initiator who applies for enforcement to change or add the original shareholder or bears joint and several liability for the capital contribution in accordance with the provisions of the Company Law is the debtor, and assumes responsibility within the scope of the failure to contribute capital according to law, the people's court shall support it.

Lawyer Li suggested

1. [The company should reasonably set the amount of registered capital and the subscription time, and gradually complete the actual payment] Do not "make great achievements", not that the higher the registered capital, the more face, nor the longer the subscription period, the more safe.

2. [The basic account of registered capital can be used to pay for the daily operation of the enterprise] It is recommended that shareholders use the basic account of registered capital to pay the daily operating expenses of the enterprise, pay employee salaries, purchase goods, purchase office supplies, etc. in the daily operation of the enterprise.

3. [Shareholders need to be cautious in subscribing to the registered capital, pay attention to the amount of registered capital payment they bear] Shareholders should do what they can, although the company does not need to contribute capital at the beginning of its establishment, but it is not permanently not required to contribute, and it is too late to subscribe for high capital contributions at will, and it will be too late to regret when it is executed!

4. [Bankruptcy or dissolution of an enterprise will lead to accelerated maturity of capital contribution obligations] Shareholders should note that once an enterprise is ruled to enter bankruptcy proceedings or enter dissolution procedures, the administrator and creditors have the right to require shareholders to accelerate the maturity of capital contribution obligations.

5. [Investigate whether there are defects in the equity and whether the capital contribution is completed when transferring the equity] It is not only the original shareholder who bears the risk when transferring the equity, but also if the transferee knows or should know that the original shareholder has not performed or has not fully performed the capital contribution when receiving the equity, the company or creditors may require the transferee to bear joint and several liability.

Li Kejun is a partner at Beijing Gaopeng (Shenzhen) Law Firm

Introduction: Mr. Li Kejun has been a practicing lawyer since 2004, has rich experience in legal practice, deeply engaged in construction engineering and real estate, urban renewal, corporate mergers and acquisitions and restructuring and other professional legal fields, has been or is working for Shenzhen Qianhai Authority, China Resources Group, McDonald's China Headquarters, BOC Hong Kong, Beijing Construction Engineering, Guangzhou-Shenzhen Railway, Luen Thai Group, Shenzhen Zhongzhou Group, Shenzhen Fortune Group, Shenzhen Tianli Group, Shenzhen Jinguanghua Group, Haijxing Agricultural Products Company, Hengming Real Estate Group, See Culture, Wind and Fire Creative provides professional legal services.

Xia Mengxue

Auxiliary court lawyer of Beijing Gaopeng (Shenzhen) Law Firm

(This article is translated by software translator for reference only.)