Today, I would like to share with you a case about a case in which a nominee shareholder is jointly and severally liable for repayment of a private loan case. The cause of the incident was that Mr. Wang took a judgment for legal consultation, I read the judgment and asked Mr. Wang to tell the story of the matter, and Mr. Wang slowly recalled what happened at that time.
Five years ago, the boss of Mr. Wang's company wanted to set up a new company, so he found Mr. Wang, because the identity of the boss is a foreigner, and it is more troublesome to register a domestic company by himself, and the boss asked Mr. Wang to hold 1 million yuan of shares on behalf of him, and the company's total registered capital is 5 million yuan. Because the boss usually treats himself well, Mr. Wang agreed to the boss's request. The two parties have also not signed an equity holding agreement (the failure to sign the holding agreement is not the point). One year after the company was incorporated, because Mr. Wang was going to leave the company where he worked, he asked for the equity transfer of the newly registered company, and the boss also helped Mr. Wang transfer the equity to a third party. Mr. Wang believes that the equity has been transferred, and the newly registered company has nothing to do with him.
Unexpectedly, five years later, after receiving a summons from the court, the bankruptcy administrator sued on behalf of the company to demand that Mr. Wang, as a shareholder of the original company, bear joint and several liability for the company's debts within the scope of his capital contribution of 1 million yuan. Because the company borrowed 5 million yuan during the period of Mr. Wang's shareholding, the company was unable to repay 5 million yuan, and the creditor applied to the court for bankruptcy of the company. At this time, the bankruptcy administrator, on behalf of the company, added the company's shareholders as defendants in accordance with the law, and demanded that Mr. Wang be held liable for the loan. Mr. Wang believes that the equity has been transferred, and he is the equity held by the boss on behalf of him, so this case should have nothing to do with him. However, the court ruled that the company's debts were formed during the period when Mr. Wang held shares on behalf of Mr. Wang, and Mr. Wang did not fulfill the obligation to make capital contributions, but transferred the defective equity to a third party for the purpose of malicious debt evasion, and even if the equity was transferred, he should be jointly and severally liable for the capital contribution obligation attached to the equity. Mr. Wang's defense that he did not submit evidence for the nominee shareholding did not affect his joint and several liability for the company's capital contribution obligations.
After listening to Mr. Wang's narration, combined with the court's judgment, I analyzed this case for Mr. Wang from a legal perspective. First of all, because the company in which Mr. Wang holds shares has been filed for bankruptcy by creditors, the obligation of shareholders to make capital contributions is no longer limited by the time limit of capital contribution, and the bankruptcy administrator can require the shareholders of the company to perform their capital contribution obligationsSecondly, because the creditor's loan was formed during the period when Mr. Wang held the equity on behalf of Mr. Wang, and Mr. Wang did not pay the capital contribution and transferred the equity, the court found that he had maliciously evaded debts, and should bear joint and several liability within the scope of his capital contributionFinally, according to the judicial interpretation of the Company Law, if a creditor requests a shareholder to bear supplementary liability for the company's debts, and the shareholder makes a defense on the ground that the shareholder is the nominal shareholder rather than the actual contributor, the people's court will not support it. Even if Mr. Wang holds shares on behalf of the shareholder, it does not affect the joint and several liability for the shareholders' capital contribution obligations. At the same time, I also mentioned that according to Mr. Wang's statement of the facts, in fact, there was a breakthrough in the case at that time, but because Mr. Wang did not hire a lawyer, he clearly recognized that the equity was held on behalf of him, which eventually led to the irreparable outcome of the case.
In the end, I told Mr. Wang that according to the law, Mr. Wang could recover from the original boss. However, the identity of the boss is a foreigner, and the two parties have not been in contact for many years, so the 1 million yuan is basically irretrievable. In this case, Mr. Wang served as a nominee shareholder based on his trust in the boss, and finally left the pain to himself, which was really painful. Through this case, I would like to tell you that you must be cautious, cautious, and cautious as a nominee shareholder.
Lawyer Wang Juping.
Beijing Jingshi (Xiamen) Law Firm.
December 29, 2023.