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Partner is smoked escape although contributive phenomenon is identifying capture contributive, do not beg check endowment today, more general still. Can will contributive smoke escaping is to accuse a partner to control a person actually perhaps for certain, otherwise other shareholder has an opportunity very hard also to accomplish. Because each other are opposite between partner trustful, if other shareholder knows experience thing partner is smoked,escape contributive, whether ought not to be because smoke,its assumed escape contributive and assumed legal responsibility? Should perhaps avoid its responsibility? This case tells us the answer.
Case is summarized
Rich world car held water on June 1, 2004, tie finite liability company. The partner when the company holds water is two people, namely Fang Haitao, Wang Chunfu, the company registers capital to add up to 1 million yuan, fang Haitao and Wang Chunfu each are contributive 500 thousand yuan, the legal representative is Fang Haitao, wang Chunfu is general manager. Limited company of office of accountant of Shenzhen city Asia-Pacific those who issue is deep inferior word of meeting produce the expected result (2004) 485 " check endowment reports " the enrollment of car of indication rich world capital reachs the designated position entirely. On December 27, 2004, equity of rich world car produces change, wang Chunfu its all and contributive made over Fu Mou.
Fang Haitao divided form with cash check to take away cash to add up to from the account of rich world car 2004 800 thousand yuan, items extraction a money is poor travelling expenses, a shot in the locker. Additional, on September 28, 2004 a shot in the locker of defray of rich world car 200 thousand yuan, take a factitious Fang Mou. Afore-mentioned money add up to 1 million yuan, fang Haitao says is for promotion of electric car be away on official business and promotion expenses, but did not add the financial bill that reports Zhang cancel after verification, also prove company resolution defray without quote these charge, do not have more offer promotion to add up to coequal and other evidence.
Rich world company says to to lodge a complaint of court of first instance 1, Fang Haitao is returned to rich world company return its smoke the contributive RMB that escape 500 thousand yuan reach accrual RMB 274527.55 yuan (according to Chinese people bank a year period, ever since accrual according to Chinese people bank a year period the corresponding period borrows money the day that interest rate plan reachs to pay actually) ; 2, Wang Chunfu is returned to rich world company still its smoke the contributive RMB that escape 500 thousand yuan reach accrual RMB 274527.55 yuan (according to Chinese people bank a year period interest rate of loan of the corresponding period from October 11, 2004 plan of of short duration comes on November 1, 2013, ever since accrual according to Chinese people bank a year period the corresponding period borrows money the day that interest rate plan reachs to pay actually) ; 3, case legal cost by burden of Fang Haitao, Wang Chunfu.
Top people court (2015) civilian explain word the 1467th [rehear applicant Fang Haitao because with be chased after to close by limited company of science and technology of electron of car of world of rich of applicant Shenzhen city, Wang Chunfu smoke escape contributive dispute one case]
This academy thinks: " company law of People's Republic of China " thirtieth sets 5 times: "After the company holds water, partner must not be smoked escape contributive. " top people court " about ﹥ of applicable ﹤ company law of People's Republic of China the regulation of a certain number of problems (3) " dozenth a regulation: "After the company holds water, company, partner or company creditor accords with one of following scenario with the behavior of relevant partner and damage company rights and interests for, the request maintains this partner to smoke escape contributive, people court should grant to support: (one) make empty of forms for reporting statistics of false and financial accounting add profit to undertake allocation; (2) concern through debt of false creditor's rights its contributive turn piece; (3) use correlation to trade will contributive turn piece; (4) other without legal process will contributive take the action that answer. " the 14th the first section provision: "Partner is smoked escape contributive, other perhaps shareholder asks the company its return contributive still principal and interest, assistance to smoke to the company escape contributive other shareholder, trustee, senior administrator controls a person actually perhaps to assume joint liability to this, people court should grant to support. " according to afore-mentioned regulations, whether is partner formed smoke escape contributive, whether did the department damage the property rights and interests of the company to be cognizance standard with partner, and escape to smoking with other shareholder contributive behavior is witting have nothing to do. Accordingly, no matter king spring is rich whether witting or agree with Fang Haitao to manage 1 million yuan are taken out in account from Bo Shigong, as long as Fang Haitao is indemonstrable the production that the money that takes out uses at Bo Shigong to manage is managed, do not affect Fang Haitao to form namely smoke escape to be maintained contributively. And other shareholder is witting assist smoke escape contributive, the law that assumes generation joint liability is sequential. This case one, 2 adjudgement fail to take a paragraph to be used at Bo Shigong to manage the evidence with reasonable, sufficient adduce proves with Fang Haitao definitely for, the behavior of cognizance Fang Haitao is formed smoke escape contributive, do not have undeserved. Fang Haitao about one, 2 adjudgement maintain his to form definitely smoke escape the application rehear reason of contributive mistake cannot hold water.
Solid Wu analysis and company administer a proposal
Whether is partner of thing of Ⅰ , experience formed smoke escape contributive, although other shareholder knows or acquiesce in its to smoke escape contributive, still cannot absolve its to assume smoke escape contributive responsibility. But if experience thing partner wants to avoid responsibility, need to have quote to prove its namely from card innocence " did not smoke escape contributive extract capital to be used at the company to manage legally however " , should assume the responsibility of quote not do one's best otherwise, that is about to assume smoke escape the responsibility that contributive responsibility returns contributive still principal and interest then.
Partner of thing of Ⅱ , experience can be smoked escape contributive success, the reason is photograph of your kind effort helps someone, the company such as the trustee that is like a company, manager, financial chief inspector is in charge of high, if the company administrator of these posts helps a person, assume joint liability possibly with experience thing partner, alleged " disaster of city gate be on fire and Chi Yu " .
Law link
" company law of People's Republic of China " (2018)
After 5 companies establish thirtieth, partner must not be smoked escape contributive.
Top people court about applicable " company law of People's Republic of China " the regulation of a certain number of problems (3)
Dozenth after the company holds water, company, partner or company creditor accords with one of following scenario with the behavior of relevant partner and damage company rights and interests for, the request maintains this partner to smoke escape contributive, people court should grant to support:
(one) make empty of forms for reporting statistics of false and financial accounting add profit to undertake allocation;
(2) concern through debt of dummy creditor's rights its contributive turn piece;
(3) use correlation to trade will contributive turn piece; Be cited by 11 case
(4) other without legal process will contributive take the action that answer.
The 14th partner is smoked escape contributive, other perhaps shareholder asks the company its return contributive still principal and interest, assistance to smoke to the company escape contributive other shareholder, trustee, senior administrator controls a person actually perhaps to assume joint liability to this, people court should grant to support.
Company creditor requests to smoke escape contributive partner is being smoked escape be opposite inside limits of contributive principal and interest debenture Wu cannot the part of pay off assumes additional liability to pay compensation, assistance to smoke escape contributive other shareholder, trustee, senior administrator controls a person actually perhaps to, people court should grant to support; Smoke escape contributive partner has assumed afore-mentioned responsibility, other loan puts forward identical request, people court does not grant to support.
Author Zhang Changhe's lawyer communicates means 412176195@qq.com
