Author: Liu Jianhai, Zhang Zilin
** AllBright Law Offices Xun Hailiang team
Foreword
In response to the problem of shareholders failing to pay their capital contributions on time, Article 52 of the new Company Law sets up a "reminder system", that is, if a shareholder of a limited liability company fails to pay his capital contribution on time and fails to pay it after being called, he or she will lose the equity corresponding to the unpaid capital contribution. This system is of great significance to enrich the registered capital of the company and safeguard the interests of the company and its creditors. This article intends to analyze the application and consequences of the system of collection of loss of rights in combination with relevant legal provisions, so as to facilitate the guidance of practical operation.
1. Legal provisions
Article 52 of the new Company Law stipulates that if a shareholder fails to pay the capital contribution on the date of capital contribution stipulated in the articles of association, and the company issues a written reminder to call for the payment of capital contribution in accordance with the provisions of the first paragraph of the preceding article, the grace period for payment of capital contribution may be specified; The grace period shall not be less than 60 days from the date on which the company issues the reminder. If the grace period expires and the shareholder still fails to fulfill the obligation to make capital contributions, the company may, by resolution of the board of directors, issue a notice of loss of rights to the shareholder, and the notice shall be issued in writing. From the date of issuance of the notice, the shareholder loses his equity in the unpaid capital contribution.
The equity lost in accordance with the provisions of the preceding paragraph shall be transferred in accordance with the law, or the registered capital shall be reduced accordingly and the equity shall be cancelled; If it is not transferred or cancelled within six months, the other shareholders of the company shall pay the corresponding capital contribution in full according to the proportion of their capital contribution.
If a shareholder has any objection to the loss of rights, he or she shall file a lawsuit with the people's court within 30 days from the date of receipt of the notice of loss of rights.
II. Applicable Circumstances
(1) Shareholders fail to pay their capital contributions on time
The capital contribution period for shareholders to subscribe for capital contributions shall be subject to the provisions of the articles of association of the company, and the maximum period shall be 5 years from the date of establishment of the company. Shareholders shall pay the capital contribution in full according to the date of capital contribution stipulated in the articles of association.
(2) Written call for capital contributions
1.Calling Entity.
According to Article 51 of the new Company Law, after the establishment of a company, the board of directors shall verify the capital contribution of the shareholder, and if it is found that the shareholder has failed to pay the capital contribution stipulated in the articles of association on time, the company shall issue a written reminder to the shareholder to call for the capital contribution.
2.Grace period.
When the company issues a written reminder, it may specify the grace period for the payment of capital contributions; The grace period shall not be less than 60 days from the date on which the company issues the reminder.
Assuming that the company does not specify a grace period when issuing a written reminder, does the shareholder who fails to pay the capital contribution on time have the right to a "grace period"? We believe that, from the perspective of the legislative spirit, in order to protect the rights and interests of shareholders who intend to "lose their rights", the "grace period" is a rigid provision, and shareholders who fail to pay their capital contributions on time are entitled to a grace period of not less than 60 days, regardless of whether it is stated in the written reminder.
(3) Failure to make capital contributions after the expiration of the grace period
If the grace period expires and the shareholder who fails to pay the capital contribution on time still fails to fulfill the obligation of capital contribution, the company may, by resolution of the board of directors, issue a notice of loss of rights to the shareholder, and the shareholder will lose the equity corresponding to the unpaid capital contribution.
To sum up, the circumstances applicable to the shareholder's capital contribution recall loss system are that the shareholder fails to pay the capital contribution on the date of capital contribution stipulated in the articles of association, and the company fails to perform the capital contribution obligation after the expiration of the grace period after the written reminder.
Third, the implementation process
(1) Resolution of the Board of Directors
For shareholders who have not fulfilled their capital contribution obligations after being called, a notice of loss of rights may be issued to them by resolution of the board of directors of the company.
The shareholders' capital contribution has been recorded in the articles of association of the company with the consent of all shareholders, and the shareholders shall perform their capital contribution obligations in accordance with the provisions of the articles of association; The board of directors of the company has the obligation to verify and call for the shareholders' capital contributions, otherwise it shall bear the corresponding liability for compensation, so the board of directors of the company does not need to be resolved by the shareholders' meeting to make a resolution on the loss of shareholders' rights.
(2) The company issues a written notice of loss of rights
After the board of directors makes a resolution, the company shall issue a notice of loss of rights to the shareholders in writing, and from the date of issuance of the notice, the shareholders shall lose their equity contributions that have not been paid. Since the unpaid capital contribution of shareholders may be fully subscribed capital contributions or partial subscribed capital contributions, the company needs to pay attention to the fact that the equity lost by shareholders is limited to the equity corresponding to the unpaid capital contribution when issuing a notice of loss of rights.
In summary, when the implementation of the shareholder capital contribution reminder system, the board of directors of the company shall make a resolution, and the company shall issue a notice in writing, and from the date of issuance of the notice, the shareholder shall lose the equity corresponding to the unpaid capital contribution.
4. Disposal of lost equity
(1) Transfer in accordance with law
After the shareholder loses the equity corresponding to the unpaid capital contribution, the equity is in an "ownerless" state, so how to transfer it? How to determine the subject of the transfer, the transfer price and other matters? The Company Law does not make corresponding provisions, and relatively detailed provisions are pending in subsequent judicial interpretations. Some articles have analyzed that such lawful transfers include subscriptions by other shareholders and third-party subscriptions, and such views are subject to discussion. From the perspective of maintaining the fullness and stability of the company's registered capital, the "legal transfer" of the bereavement equity should be the resubscription of the unpaid capital contribution, and other shareholders and third parties other than the original shareholders shall obtain the equity corresponding to the bereavement equity by subscribing to the company's registered capital.
(2) Capital reduction and cancellation
For the registered capital corresponding to the lost right equity, the company can go through the corresponding capital reduction procedures and cancel the equity. If the company handles the capital reduction, does it need to fulfill the resolution procedure of the shareholders' meeting? Or can you do it directly? We believe that the reduction of the company's registered capital falls within the scope of the shareholders' meeting and should be reviewed and approved by the shareholders' meeting.
(3) Other shareholders pay capital contributions
Within 6 months from the date of issuance of the notice of loss of rights, i.e., the date of loss of rights, if the equity of the lost rights has not been transferred or cancelled in accordance with the law, then the other shareholders shall pay the capital contribution in full according to the proportion of capital contribution. The time for other shareholders to pay their capital contributions shall be paid immediately after the expiration of the six-month period, and the corresponding equity shall be obtained after the other shareholders pay their capital contributions.
In summary, the lost equity shall be transferred or cancelled within 6 months from the date of loss, and if it is not completed, other shareholders shall pay the capital contribution in full according to the proportion of capital contribution.
5. Remedies for shareholders who have lost their rights
If a shareholder who has lost his rights after being called upon has any objection to the loss of rights, he or she shall file a lawsuit with the people's court within 30 days from the date of receipt of the notice of loss of rights. The 30 days belong to the period of expulsion, and if a lawsuit is not filed within 30 days, there will be no judicial remedy. How should the litigation claim be expressed in the dissenting lawsuit filed by the shareholder who has lost its rights? Tracing back to the source, the issuance of the notice of loss of rights was made by the resolution of the board of directors of the company, and the shareholders who lost their rights should sue the court to declare the resolution of the board of directors invalid, revoke or confirm that it is not established, which fundamentally confirms that the notice of loss of rights issued by the company has no legal effect.
In addition, after the losing shareholder files an objection lawsuit, should the lost equity be disposed of accordingly? If the resolution of the board of directors involved in the issuance of the final notice of loss of rights is declared invalid, revoked or confirmed by the court, then the dissenting shareholder may request the registration authority to cancel the registration or claim compensation for losses. However, if the dissenting shareholder applies to the court for property preservation of the lost equity and is supported by the court, the company shall not dispose of the lost equity.
6. Summary
Based on the principle of "reciprocity of rights and obligations", shareholders should fulfill the corresponding capital contribution obligations while enjoying the equity, otherwise they should not enjoy the equity corresponding to the unpaid capital contribution. The revision of the Company Law raises the system of shareholders' capital contribution to the legal level, which is conducive to strengthening the supervision of shareholders' capital contribution and maintaining the construction of an honest market environment. With regard to matters such as the disposal of the lost equity and the remedies for the lost shareholders, it is expected that the corresponding judicial interpretations will be issued in the future, so as to facilitate practical operation.
StatementThis article is for reference only and should not be regarded as legal advice in any sense, nor does it represent the views of the author's institution. It may not be used for other purposes without the written consent of the author.