Text: Shanghai Junlan Law Firm, lawyer Yu Qiang.
Jurisprudence basis].Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Modification and Addition of Provisions on Enforcement in Civil Enforcement: Where the assets of the enterprise legal person as the person subject to enforcement are insufficient to pay off the debts determined in the effective legal documents, and the applicant for enforcement applies to change or add the shareholders or investors who have not paid or have not paid the capital contributions in full, or the initiators who are jointly and severally liable for the capital contributions in accordance with the provisions of the Company Law, and bear responsibility in accordance with the law to the extent that the capital contributions have not been paid, the people's court shall support them.
Paragraph 2 of Article 13 of Judicial Interpretation III of the Company LawWhere the creditors of the company request that the shareholders who have not fulfilled or have not fully performed their capital contribution obligations bear supplementary liability for the part of the company's debts that cannot be paid off within the scope of the unpaid capital and interest, the people's court shall support it; Where shareholders who have not fulfilled or have not fully performed their capital contribution obligations have already borne the above-mentioned liabilities, and other creditors make the same request, the people's court will not support it.
Article 80 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of the People's Courts (Provisional)".If the person subject to enforcement has no property to pay off the debts, if the registered capital invested by the start-up unit is false or the registered capital is evaded, it may rule to change or add the start-up unit as the person subject to enforcement, and the applicant for enforcement shall be liable to the extent that the registered capital is false or the registered capital is evaded.
Legal Analysis] The registered capital subscription system lowers the threshold for the establishment of the company, and the shareholders have greater autonomy in the company's capital contribution, and can not only freely agree on the method of capital contribution, the amount of capital contribution and the time of capital contribution, but also freely transfer equity. However, the independent personality of the legal person, the limited liability of shareholders, and the term benefits under the subscription system are also easy to be improperly used by shareholders, which in turn affects the interests of creditors.
If the assets of the company as the person subject to enforcement are insufficient to pay off the debts determined in the effective legal documents, and its original shareholder transfers its equity without performing its capital contribution obligations in accordance with the law, and the applicant for enforcement applies to change or add the original shareholder as the person subject to enforcement, and requires it to bear responsibility within the scope of the failure to make capital contributions in accordance with the law, the people's court shall support it. If the transferee knows or should know that the original shareholder has not fulfilled the obligation of full capital contribution, but still accepts the equity of the original shareholder, it shall be jointly and severally liable with the promoter of the company for the company's debts.
In practice, it is not uncommon to hold a judgment in favor of the lawsuit, but the enforcement has not been enforced for a long time, and the difficulties and solutions that will be encountered in the procedure of adding the company's shareholders as the person subject to enforcement in the enforcement procedure are complex, and it is necessary to make a specific judgment based on the specific circumstances of the case.