In judicatory practice
After company shareholder flaw is contributive
The case that transfers equity another person again is very general
Below this kind of circumstance, make over partner and suffer let partner whether need to assume contributive responsibility
And how should assume relevant responsibility?
This period law believed dried food little elder brother to comb the juridical regulation that different situation issues in practice for everybody
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The legal responsibility that contributive equity transfers the flaw
The law believes · judgment regulation
Although its equity is made over,1. did not fulfill the partner of contributive obligation in the round, also cannot absolve what its carry to company place agree to fill neat contributive civil liability -- Xie Hui and on the west partner of limited company of the trade austral Anqing is contributive issue desk
Case argument: Company shareholder has finite responsibility to define Wu to the law with contributive pay of company full specified amount. Did not fulfill contributive obligation to transfer the partner of its equity namely in the round, should assume to the company fill neat contributive civil liability, this responsibility does not make over behavior because of its equity and absolve. When bearing the contributive responsibility that lets partner know perfectly well place to suffer the equity existence that let to ought to be assumed to the company, the company has a request partner of sell one's own things, get the option that allows partner to assume implicative and contributive responsibility. Suffer let partner be in suffer when allowing equity, do not know what to accept the blemish of equity existence right that let really, but did not advocate cancel, remove equity makes over a contract, suffer let partner form what let equity right flaw to sufferring to know perfectly well, ought to assume contributive responsibility to the company.
Record date: (2017) civilian of short for Shaanxi Province explain 591
Cognizance court: Shaanxi saves senior people court
2. transfers a process in flaw equity in, new old partner all should be assumed contributive the civil liability that does not reach the designated position -- Xiamen Ai Dejin exports limited company to accuse Xiamen city gold must amount to industrial development limited company to wait for loan proposal
Case argument: Equity alienee is in know or ought to know equity to put imperfect when still suffer those who let, assume the first order by its contributive responsibility or assume liability to pay compensation to creditor; Bring about company capital empty to because alienee financial capacity is insufficient,prevent to be short of at the same time, likely caustic and company loan interest, and the case that the transferor uses equity to transfer the investment risk that escapes this agree to carry, still can ask the transferor is assumed the 2nd sequential additional duty, assume additional liability to pay compensation after new partner namely.
Record date: (2002) mansion classics eventually word the 194th
Cognizance court: Court of intermediate people of city of Fujian Province Xiamen
The not full specified amount that 3. already transferred total equity is contributive partner, still should assume contributive and disloyal law responsibility; Alienee did not use up careful obligation, assume joint liability with the transferor -- desk of contributive issue of Chen Mou and A company shareholder
Case argument: Although the partner with contributive pay of full to pressing company rules specified amount transfers all equity external, its contributive and disloyal responsibility still cannot be absolved, the respective place that partner ought to provide in rules of company of pay of full specified amount on schedule knows the contributive specified number of capture, although partner already made over his external total equity, but its contributive and disloyal responsibility should be not absolved as the cession of equity, this partner still ought to lawfully to the company complemental and contributive. Alienee all also ought to go to careful obligation in the meantime, otherwise alienee may assume joint liability with the transferor.
Record date: (2010) Shanghai one in civilian 4 (business) eventually word the 2036th
Cognizance court: Shanghai court of the first intermediate people
The debt that the alienee of 4. flaw equity already existed to the company should be in former partner assumes additional responsibility inside contributive and insufficient limits -- Inc. of Shuang He medicine, Hubei saves Inc. of industry of Beijing Shuang He drug and Inc. of pharmacy of Guizhou beneficial hundred, Hubei Hengkang
Case argument: After its as a result of the partner of contributive flaw equity transfers other and civil principal part, produced this flaw equity of contributive responsibility assume main body problem, accordingly, the true meaning that should abide by equity to make over bilateral party on processing expresses the principle that comparatives with fault responsibility. the alienee that makes over with respect to equity, check make over equity to whether exist the flaw is contributive it is the main obligation that alienee should use up. If its are known perfectly well or ought to know to suffer the equity that allow is put in the flaw and still accept make over, ought to illative the law that its know to this equity is made over is sequential.
Cognizance court: Top people court
5. partner makes over a flaw contributive equity cannot avoid complemental and contributive obligation -- shell company accuses Zhao Mou equity transfers dispute record
Case argument: The partner of finite liability company was not fulfilled or did not fulfill contributive obligation to transfer equity namely in the round, its complemental and contributive legal obligation is not made over because of equity, suffer let partner acceptance assumes responsibility and be absolved.
The alienee that 6. flaw equity makes over is known perfectly well or ought to know its to suffer the equity that allow is put in the flaw and still accept make over, should fulfil complemental and contributive obligation -- limited company of development of investment of Ju Ying of · of An Daxin century and management of investment of Beijing capital international are finite liability company, assist develop limited company partner to counterpoise truly with healthy medicine industry record of compensatory dispute appeal
Case argument: The alienee that equity makes over suffers the equity that allow to exist to its qualification of contributive and disloyal, partner is imperfect ought to know perfectly well. Transfer the regulation of consultative agreement and company rules according to equity, equity alienee fulfils contributive obligation to the company, it is equity makes over the true meaning of bilateral party to express, also of not lawbreaking, code mandatory regulation, its should assume contributive and disloyal law responsibility to the company, answer to fulfil contributive obligation to the company namely, still ought to to already on schedule the partner with contributive pay of full specified amount undertakes responsibility of breach of contract.
Whether does 7. equity alienee assume joint liability to depend on to debenture Wu with not comprehensive and contributive transferor whether its know or ought to know to make over the fact with partner contributive flaw -- An Jianjian of city of Chang Juying, Pu Yang sets group limited company to build case of dispute of engineering construction contract
Case argument: The partner of finite liability company was not fulfilled or did not fulfill contributive obligation to transfer equity namely in the round, whether does equity alienee assume joint liability to the debt of the company with not comprehensive and contributive partner, depend on its are in suffer whether when allowing equity, know or ought to know equity transferor is not contributive not comprehensive perhaps contributive fact.
Record date: (2017) top magic art civilian explain 1433
Cognizance court: Top people court
The law believes · law basis
After contributive equity makes over 1. flaw of contributive responsibility assume
When partner did not use up contributive obligation, this partner place identifies capture part to exist in company capital number " empty " , this has interest of caustic company loan already, transmitted lack fidelity capital information to not specific the 3rd person again, this kind of case ought to avoid. Partner did not use up contributive obligation to transfer equity namely, the contributive obligation that transfers partner must not be made over because of equity and remove, the company still has authority to request to make over partner to fulfil contributive obligation. Enrich to make company capital as soon as possible, offset sth used to one's own advantage " empty " , " company method " the 30th, the 93rd obligation that stipulates other shareholder or initiator reply not contributive partner the 1st times assumes joint liability. So, because alienee is in,suffer when allowing equity, ought to check whether is the contributive obligation of correspondence of this equity place fulfilled, have relatively the attention with company other taller shareholder is compulsory, know perfectly well in alienee make over partner to did not use up contributive obligation to still suffer when allowing equity, its should are opposite more make over partner unexhausted contributive obligation assumes joint liability. Accordingly, when the company sues a request to make over partner to fulfil contributive obligation to people court, the alienee that can request to know or ought to know to make over partner to did not use up contributive obligation at the same time assumes joint liability.
Basis a regulation, the partner of finite liability company was not fulfilled or did not fulfill contributive obligation to transfer equity namely in the round, the company has authority to request this partner to fulfill contributive obligation, alienee to assume joint liability. To strengthen the protection of pair of company creditor, explain the 13rd the 2nd provision according to this judicatory, debenture right person ought to enjoy as same as the company appeal toing to counterpoise, should make over namely partner was not fulfilled or did not fulfill contributive obligation to transfer equity namely in the round, alienee perhaps ought to know to this, company creditor has authority to request to make over partner to be opposite inside limits of not contributive principal and interest debenture Wu cannot the part of pay off assumes additional liability to pay compensation, alienee to assume joint liability. Need to emphasize here at 2 o'clock: (1) company creditor enjoys the requirement that tells authority is was not fulfilled because of partner or did not fulfill contributive and compulsory enroach on in the round the creditor's rights of company creditor, namely company cannot debt of pay off company; (2) the amount that company creditor requests to compensate for did not give capital gold and interest limits in the limit of with partner.
Company or when creditor requests equity alienee to assume joint liability to making over the contributive obligation of partner, if be put in equity to make over case for many times, namely when alienee is most person, criterion company or all alienee that creditor can request to know or ought to know to make over partner to did not use up contributive obligation already assumes joint liability, also can request to assume joint liability to among them part alienee. Be chosen to assume the alienee of joint liability, must not with its and before hand partner or the conventional antagonism company between defensive position partner or creditor. Of course, beg countervail principle according to joint liability interior, the alienee that already assumed responsibility has authority to chase after countervail to partner of the hand before those who include to transfer partner inside is all, because be chased after countervail and by losing alienee authority continues to chase after countervail to the hand before its. But, between alienee or alienee and transfer partner between about contributive obligation assume what have an agreement additionally, agree from its.
(pick from " top people court explains about company method (3) liquidation summary understanding and applicable (annotate edition) " , top people court is civil try the 2nd front courtyard to compile, people court press 2016 edition the 289th page)
After contributive equity makes over 2. flaw of corresponding and civil liability assume
The place before 1. is like is narrated, we think, after equity is made over, the civil liability with contributive flaw still ought to by former partner namely the person of sell one's own things that equity transfers a contract is assumed, and no matter whether do its have fraudulent action to alienee when transferring equity.
2. but, in if alienee is in,transferring a process or before contributive to flaw of the hand before its fact is belonged to know perfectly well, but for former flaw of be partial to contributive partner and ill will suffers those who allow equity, company and its creditor can request by the civil responsibility that bears the partner that makes partner contributive to the flaw to assume additional compensation, reason is alienee is under the case with contributive flaw of the hand before knowing perfectly well its, the equity that pays to the hand before its makes over pair of price to often transfer the value under normal equity greatly, let this kind of partner with respect to its not the congenial behavior of sincere letter pays price also is fairness.
3. is below person of sell one's own things and the case that alienee puts in extraordinary agreement, if alienee knows perfectly well the fact with contributive flaw of existence of person of sell one's own things, when its and person of sell one's own things decide equity transfers cost this flaw contributive case considers inside, when deciding inferior equity transfers cost thereby, right now equity makes over a contract to belong to the contract that makes over equity and partner obligation along with all the others namely, to the cession of civil obligation, the relevant provision from civil code general rule, ought to obtain loan agree. Ought to distinguish right now so different situation processing, company or the content that creditor makes over to contributive obligation approbates, can assume the civil responsibility with contributive flaw by alienee; Company or creditor does not approbate, this flaw is contributive and civil responsibility still is assumed by former partner, corresponding right can hold to alienee after its are assumed.
4. knows perfectly well a flaw in partner of afore-mentioned sell one's own things and alienee contributive fact and below the condition that the agreement changes this obligation, if alienee becomes a company,person of already acting sell one's own things assumed a flaw after partner of contributive and civil liability, if acting former partner is complemental contributive, can regard former partner as to had fulfilled capital to enrich responsibility, because this kind of behavior is not law or administrative regulations place prohibits.
(pick from " company suit principle and solid Wu " , chief editor of a surname Red Army, people court press 2007 edition 427~428 page)
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1. " company law of People's Republic of China " (2018 amend)
The respective place that the 28th partner ought to provide in rules of company of pay of full specified amount on schedule knows the contributive specified number of capture. Partner with the money contributive, ought to the money contributive the account that full specified amount stocks finite liability company to be opened in the bank; Produce in order to be not monetary money contributive, ought to deal with the move formalities of its money property right lawfully.
Partner not according to before the paragraph stipulates pay is contributive, divide ought to to the company outside pay of full specified amount, still ought to to already on schedule the partner with contributive pay of full specified amount undertakes responsibility of breach of contract.
2. " top people court about applicable < company law of People's Republic of China > the regulation of a certain number of problems (3) " (2014 amend)
Thirteenth partner was not fulfilled or did not fulfil contributive obligation in the round, other perhaps shareholder asks the company its fulfil contributive obligation in the round lawfully to the company, people court should grant to support.
The partner that company loan request was not fulfilled or did not fulfil contributive obligation in the round is right inside limits of not contributive principal and interest debenture Wu cannot the part of pay off assumes additional liability to pay compensation, people court should grant to support; The partner that was not fulfilled or did not fulfil contributive obligation in the round has assumed afore-mentioned responsibility, other loan puts forward identical request, people court does not grant to support.
Partner was not fulfilled when the company is established or did not fulfil contributive obligation in the round, according to this the first or the accuser of the 2nd to lodge a complaint, the initiator that asks a company and the accused partner assume joint liability, people court should grant to support; After the initiator of the company assumes responsibility, can chase after countervail to the accused partner.
Partner is added in the company endowment when was not fulfilled or did not fulfil contributive obligation in the round, according to this the first or the accuser of the 2nd to lodge a complaint, the request did not use up company method of the 147th the first section provision compulsory and exert endowment not the trustee with full pay, senior administrator assumes corresponding responsibility, people court should grant to support; After trustee, senior administrator assumes responsibility, can chase after countervail to the accused partner.
The partner of company of the 18th finite liability was not fulfilled or did not fulfill contributive obligation to transfer equity namely in the round, alienee perhaps ought to know to this, the company requests this partner to fulfill contributive obligation, alienee to assume joint liability to this, people court should grant to support; Company creditor according to sets thirteenth originally the 2nd to this partner to lodge a complaint, alienee is narrated to assume joint liability to this before requesting at the same time, people court should grant to support.
After provision of the section before alienee basis assumes responsibility, the partner that was not fulfilled to this or did not fulfil contributive obligation in the round chases after countervail, people court should grant to support. But, party has conventional except additionally.
