When the company's operation is in trouble and cannot continue to operate, and it is unable to pay off the debts due, the company shall apply for bankruptcy liquidation in a timely manner and deregister the company in a timely manner after the liquidation is completed. In enforcement cases, for the purpose of evading debts and transferring property, some companies cancel the company through summary procedures without liquidation or liquidation in accordance with the law when the company is involved in a large number of lawsuits, thinking that as long as the company is successfully deregistered, everything will be fine, but this move will not only fail to achieve the purpose of evading debts, but will lead to the risk of assuming the company's debts to the shareholders who made commitments when handling the company's deregistration.
The facts of the case
In the case of a labor contract dispute between Mr. Wang and Company A, the arbitration ruled that Company A should reimburse Mr. Wang for the difference in double wages totaling RMB 13,113 plus interest. After the enforcement case was filed, after several inquiries, it was not found that there was any property in the name of Company A, the person subject to enforcement, and the enforcement procedure was terminated in accordance with the law. Later, Wang found that Company A had gone through the cancellation of registration, but he had not received any notice from Company A regarding the repayment of creditor's rights, and he believed that Company A had been cancelled without liquidation in accordance with the law, so he applied to the court to add Liu and Zhang, shareholders of Company A, as the persons subject to enforcement, and jointly bear the obligations determined by the effective legal documents.
Outcome of the Trial
According to Article 21 of the Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement, if the company as the person subject to enforcement goes through the cancellation of registration without liquidation, resulting in the inability of the company to liquidate, the people's court shall support the application for the change or addition of the shareholders, directors and controlling shareholders of the limited liability company as the person subject to enforcement, and bear joint and several liability for the company's debts.
In this case, Company A, as the person subject to enforcement, had the obligation to perform monetary payment to Wang, the applicant for enforcement, but Company A cancelled the company by way of summary procedure during the enforcement process, and when applying for cancellation, it was stated that the creditor's rights and debts had been liquidated, and all shareholders issued a Letter of Commitment from All Investors, promising that the company did not have any circumstances that did not apply to the simplified deregistration of the enterprise when applying for deregistration......In this case, the judgment debtor Company A clearly knew that it had unfulfilled debts, but still chose to apply the simplified cancellation procedure in order to evade liquidation, which was a situation where the company was deregistered without liquidation, resulting in the company being unable to liquidate, and the applicant Wang's request to add Liu and Zhang, shareholders of the judgment debtor Company A, as the judgment debtors of the enforcement case, to bear joint and several liability for the company's debts is based on law and should be supported.
The judge said the law
In practice, when a company goes through the process of deregistration, the market regulatory department will only conduct a formal review of the company's liquidation status. Therefore, there are often situations where the company has been liquidated in form, but in fact has not been liquidated in accordance with the law, such as the failure to notify the known creditors in accordance with the law involved in this case, resulting in the inability to achieve the effect of liquidation in substance. At this time, if only the formal criteria are used to determine whether the liquidation has been carried out, it will not only violate the provisions of the law, but also promote the trend of fraud and formalism in the liquidation, which is not conducive to the protection of the interests of creditors, and in the long run, it is not conducive to the healthy development of the social economy. Therefore, the "cancellation of registration without liquidation" as stipulated in Article 21 of the Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement should be understood as "handling the cancellation of registration without liquidation in accordance with law".
How to add the shareholders or third parties of the deregistered company as the person subject to enforcement during the execution process:
1) Find out whether the company subject to enforcement exists through the enterprise inquiry**.
The premise that the shareholder who made the commitment at the time of the cancellation of the additional company is the person subject to enforcement is that the company has been deregistered, so if you want to add such a shareholder, you should confirm whether the company subject to enforcement exists as soon as possible. Generally, you can check whether the company subject to execution exists through Qichacha, Tianyancha, Qixinbao, etc.
2) Access to industrial and commercial files.
If after a preliminary investigation, the company subject to enforcement has been deregistered, as the applicant or the first person, it shall obtain the industrial and commercial files of the company subject to enforcement, understand the information of the shareholders of the company subject to enforcement, and find out whether the company subject to enforcement has been liquidated;If it has been liquidated, analyze whether the composition of liquidation personnel and liquidation procedures are legal through the liquidation materials.
3) Collect information on the pledgee, and preliminarily grasp the pledgee's property status.
After learning the basic information of the pledgee through the industrial and commercial archives, check the pledgee's involvement in litigation and whether it has been restricted by the court or included in the list of dishonest persons through the judgment document network, China Enforcement Information Disclosure Network, etc., to preliminarily grasp whether the pledgee has the ability to repay, so as to assess whether to subsequently add the person subject to enforcement and whether to apply for property preservation.
4) Submit an application for the addition of a person subject to enforcement.
After the analysis of the above steps, whether the pledgee is a shareholder of the company, an executive of the company, or a third party, if the pledgee meets the conditions for enforcement, it shall immediately draft an application for the addition of the person subject to enforcement and submit it to the court, requiring the additional pledgee to be the person subject to enforcement, and decide whether to take property preservation measures according to the circumstances If it is necessary to cancel the debt due to objective reasons, the shareholder shall perform the liquidation obligation in accordance with the law and then cancel it, and cannot cancel it at will in order to avoid the debt, otherwise it may bear the liability for compensation far exceeding the amount of its capital contribution.
*: Bincheng District People's Court, Binzhou City.