I. Introduction
The newly revised Company Law will come into force on July 1, 2024, and the registered capital will be fully paid up within five years from the date of establishment of the company. This means:The subscription system has returned to the actual payment system, and Article 159 of the Criminal Law has come in handy again.
Article 159 of the Criminal Law [Crime of False Capital Contribution or Evasion of Capital Contribution] Where a company founder or shareholder violates the provisions of the Company Law by failing to deliver money or goods or transferring property rights, makes false capital contributions, or withdraws their capital contributions after the establishment of the company, and the amount is huge, the consequences are serious, or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not more than five years or short-term detention, and/or a fine of not less than 2% but not more than 10% of the amount of false capital contributions or the amount of capital contributions withdrawn. Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be sentenced to up to five years imprisonment or short-term detention.
60% of the people in this prison are accounting majors, and it is even jokingly called the Shangcai Branch. It is said that when the accounting students of Shanghai University of Finance and Economics start classes, the teachers will tell them to keep the bottom line of accounting, otherwise they will join the Tilanqiao Alumni Association.
2. Past and present lives
Our country is in1993 yearThe promulgated Company Law stipulates that the actual capital contribution must be made for the registration of the company, which is:Paid-in systemOrigin. Under the paid-in system, how much registered capital is written on the company's business licenseThe bank also needs to have a corresponding amount of funds on the capital verification account.
For example, I want to set up a company with a registered capital of 10 million (to demonstrate the strength of the company, some bidding projects have threshold requirements for registered capital). According to the law at that time, I had to pay the 10 million to the company's basic account from the date of the company's establishment, and the company would be officially established.
The problem is that I don't have 10 million, huh? At that time, the actual operation was to find a first-class company to do it all in one stop. Am I not short of 10 million registered capital? **The company will find 10 million to lend me, and when the company's establishment license is completed, I will return the money to the **company, and I will pay a certain amount of interest in the middle.
This is the actual payment system of that year, and it is said that it is actually paid, but in fact it is no different from false capital contribution. If the normal operation of the company is easy to say, once there is a problem with a huge debt, the creditor comes to collect the debt, and finds that the company's registered capital has been withdrawn, you can cite the aforementioned article of the criminal law, and the shareholder who commits the crime of "false capital contribution and withdrawal of capital contribution" shall be sentenced to imprisonment for up to one year, and the terrible thing is that the person directly responsible (accountant) may also face punishment.
YYYYYYYYYYYYYYYYYThe Company Law changed the original paid-in system to:Subscription system。The subscription system can be understood as a commitment that does not require the company to pay all the registered capital when it is established. Under the subscription system, the industrial and commercial department only registers the total amount of registered capital that the company undertakes to subscribeIt is not mandatory to submit a capital verification report.
At this time, the sub-shareholders are completely free to contribute, which can bring great vitality to the market, so they have entered the era of national entrepreneurship, and the market has been mixed since then.
For example, it is common for some companies to write the registered capital as 100 million yuan, and then set the subscription period as 100 years.
3. Reasons for the revision
This revision is because too many companies have gone bankrupt and closed down since the second half of 2022, and as a result, during the bankruptcy liquidation, it was found that there was not enough registered capital to pay off the debts, and the actual controller had become a lai, and the court could not enforce it, the subscription system was unreliable, and it was not good to make a one-size-fits-all system.
As of January 9, 2024, the number of judgment defaulters on the list of judgment defaulters published by the China Enforcement Information Disclosure Network is as high as 860,000. In addition to natural persons, there are also a considerable number of corporate legal persons (i.e., companies).
This revision is bound to cause widespread controversy, after all, there is a game of three interests behind it, and it is urgent to find a balance now.
One is market vitality and innovation;
One is the interest of creditors;
One is the freedom of shareholders to make capital contributions.
While the subscription system has allowed private companies to flourish like never before in the past decade, the market has also sprung up a large number of shell companies (purse companies) that use digital games to defraud investors and ordinary people.
It is extremely difficult to protect the interests of creditors, and the company with billions of registered capital, there is no money on the actual bank card, and the creditors often have to go through a lot of hard work, and can only be added to the debtor's shareholders after n lawsuits and executions, and even a firewall company, the entire debt risk will be stripped away, and the creditor will not get a penny in the end.
In the final analysis, no matter how legislation is enacted, it is actually to find a balance point in the current game of the rights and interests of all parties, and as for the effect of this balance point, it can only be tested by the market and time.
Fourth, the response plan
Continuing with the above example, in 2015, I registered a Romance of the Three Kingdoms technology company, because the target customer has requirements for the registered capital of the first business, so I wrote 10 million on the registered capital on the business license, and paid it after 50 years.
The company's main cost is personnel salary, which is an asset-light operation, in fact, I borrowed less than 1 million funds into the company's operation at that time, the market was not bad before, and the company's operation was also smooth.
Recently, the company law has been revised, according to the new law, I must complete the payment within five years from the date of subscription, and the transition period is only three months, at this time I am faced with the following choices
Scheme: Pay 10 million to put the company's basic account deposit in the bank to eat interest (foolish dream);
Solution: Capital reduction, due to the cumbersome procedures for capital reduction, I had to spend money to find someone to do it, and lost several large customers because I did not meet the storage conditions (dilemma);
Solution: advance funds to cross the bridge, find a bridge company to inject capital into the Romance of the Three Kingdoms Company, and then ask a firm to issue a capital verification report. After the capital verification, the Romance of the Three Kingdoms Company will transfer the money back to the bridge company, and pay an interest in the middle (thinking it is good).
Most people will definitely say that the three plans are good, but in fact, the biggest difficulty here is that after the capital is verified, how does the Romance of the Three Kingdoms Company legally transfer the money out?
Some people say it's not simple:
Bridge Company I Romance of the Three Kingdoms Company I Bridge Company
Spend money to buy a capital verification report, the money goes into the company's account and goes out in minutes, and then the Romance of the Three Kingdoms company hangs a personal loan and asks the accountant to do so-
Borrow: Bank deposit of 10 million yuan.
Credit: Other payables - natural person shareholders 10 million yuan.
Those who say this should not know much about finance, and the company's long-term loans to legal persons, shareholders, and executives are all tax risk points.
If a natural person shareholder borrows money from an enterprise and does not return it after the end of the tax year, and does not use it for the production and operation of the enterprise (self-certification is required), it shall be regarded as a dividend and pay 20% individual income tax.
It's not easy to operate from public to private, and some people say, that's another way-
Bridge Company, I Romance of the Three Kingdoms Company, Water Margin Company, Bridge CompanyFrom the Romance of the Three Kingdoms Company to the Water Margin Company and then to the Bridge Company, every transfer must have a reason, or a related party transaction investment to make a current payment, or the ** payment must have a contract and an invoice.
Of course, these are all face-saving, whether the state inspection is to check the face or the inside, this depends on the future direction and your luck.
As long as there is a transfer record, it will be recorded in the account, and it will be traced, and the registered capital will be transferred out soon after it comes in, and this link itself is very easy to trace. The registered capital shall be paid within 5 years