Equity is a transferable civil right. Article 125 of the " Civil Code " stipulates: " civil subject enjoys equity and other investment rights in accordance with the law." Article 129 stipulates: "Civil rights can be obtained in accordance with civil legal acts, factual acts, events stipulated by law or other methods stipulated by law." Article 130 stipulates that "civil subjects exercise civil rights in accordance with their own wishes and are not subject to interference." According to the above legal provisions, the equity enjoyed by natural persons belongs to a private right, and the equity enjoyed by civil subjects in accordance with the law is protected by law. At the same time, citizens' transfer of their equity is also protected by law.
Article 3, Paragraph 2 of the " Company Law " stipulates that "the shareholders of Co., Ltd. shall be liable to the company to the limit of the amount of capital they subscribed; the shareholders of Co., Ltd. shall be liable to the company to the limit of the shares they subscribed."
According to this law, the amount of capital subscribed by shareholders constitutes the right to equity, and this right to enjoy the right to dividends for the company's profits, and at the same time, they shall also bear the liability for repayment of the company's external debts owed.
In addition, this law stipulates that shareholders enjoy rights and assume obligations based on the amount of capital contributions they subscribe, and "subscription" and "actual payment" are two different concepts. "Subscription" is a provision for the amount of capital contribution that has not been actually paid, that is, as long as the shareholder subscribes the company's capital contribution, he can complete the "actual payment" within the period agreed in the articles of association, and may not pay before "actual payment".依照法律规定，即使是“认缴”出资额，在未实际缴纳出资款之前，也依法享有股东权利，承担股东义务。 Under normal circumstances, the rights and obligations of shareholders who have not actually contributed the capital and shareholders who have completed the "actual payment" are the same. However, if the company owes too much external debts and encounters liquidation or bankruptcy, the shareholders who have already "actual payment" will only bear the company's debt responsibility for the amount of capital that has completed the "actual payment" and individuals do not bear joint and several liability.而没有“实缴”的股东，则须在未完成实缴的出资额内与公司承担连带责任。
Article 70 of the Company Law stipulates: "Stock shareholders of a limited liability company may transfer all or part of their equity to each other." In this legal provision, specific restrictive requirements are stipulated for the statutory requirements for shareholders to transfer equity, but it does not restrict the transfer of equity of shareholders who have not actually contributed.也就是说，没有实际出资的股东，也可以转让自己的股权。
For example, when a real estate development company in Ji'an City, Jilin Province was established, the three shareholders subscribed to 4 million yuan in capital, and the total share capital of the company was 12 million yuan. After the company was established, the company used loan funds to engage in real estate operation and development, but the three shareholders never completed their obligation to subscribe to the capital contribution.
From 2020 to 2022, one of the shareholders transferred his shares to others, and all shareholders of the company voted to agree to the transfer. When the transferee paid the subscribed capital to the company and went to the Market Supervision Bureau to handle the equity change registration, it was found that the shareholder who transferred the equity was seized by the court due to an economic dispute with his ex-wife, resulting in the inability to register the equity transfer. For this reason, the company's original shareholders and new shareholders held a shareholder meeting and decided to absorb the investors as new shareholders. Each person's equity changed from the original 33.33% to 25% of each person's equity. After signing the shareholders' meeting resolution, the new shareholders entered the company and undertake the corresponding management work.
After the new shareholder joined the company, he sued the company in the name of his wife at the end of 2021, demanding that his capital be recognized as private loans and requesting the repayment of principal and interest. The Ji'an Municipal Court ruled that private lending was established and that the company should repay and pay interest. The company was dissatisfied with the first-instance judgment and appealed to the Intermediate Court, which ruled to dismiss the shareholder's wife's lawsuit.
In 2022, the new shareholder filed a lawsuit in his own name, demanding that the capital be refunded.The reason was that "the project transfer payment was written on the capital receipt at the beginning." The Ji'an Municipal Court did not recognize the shareholder's rights and the records of the shareholder's meeting in the company, and ruled that the company refund the project transfer payment to the shareholder and pay interest.该公司不服一审判决，正在上诉。
It can be seen from this case that the shareholders did not actually contribute capital, and once they wanted to transfer the equity, many legal issues were involved.
1. Not actually investing does not affect the transfer of equity in accordance with the law. Although the company's shareholders have not actually contributed, because the law stipulates that the rights enjoyed by shareholders are based on "subscribed capital amount". When a shareholder without actual investing transfers the equity, as long as the transfer contract signed by the transferor and the transferee does not have the invalid circumstances stipulated by law, the shareholder's transfer contract is valid in principle. According to the Company Law, shareholder rights that have not actually contributed will be subject to certain restrictions, but will not affect the transferability of the equity. It is only after the transfer, if the transferee accepts the transferred subscribed capital, the transferee will be subject to the relevant provisions of the Company Law
2014's "Company Law" changes the company's registered capital from the actual payment system to the subscription system, which only lowers the threshold for company establishment. The registered capital subscribed by shareholders still recognizes its shareholder rights. The rights of shareholders who have not completed the "actual payment" of will not be affected in the company.股东转让股权受法律保护。
2. When the transfer of equity in "actually paid" has not been completed, the transferor and transferee must determine the person responsible for the uninstant capital contribution obligation, that is, who should pay the registered capital that is not paid.
It is the shareholder’s legal obligation to pay capital contributions based on the subscribed registered capital and will not be eliminated due to equity transfer. If the transferor fails to agree with the transferee to pay the capital contribution obligation, the company has the right to require the transferee to fulfill the capital contribution obligation, or it may require the transferee to fulfill the capital contribution obligation. If the transferor and the transferee have an agreement on the obligation of "actual payment" of , the payment will be required as agreed in the contract, but the agreement between the transferor and the recipient may not be valid.
For example, A registered company with someone else, and A subscribed a registered capital of 1 million yuan, accounting for 20% of the company's registered capital. Paying this registered capital of A is a legal obligation of A. After A transfers his equity to B, if there is no agreement on who will complete the "actual payment" obligation of , then A cannot claim that "My equity in has been transferred to B, and I will not pay the obligation of 1 million yuan to contribute." The company has the right to require A to fulfill the registered capital of 1 million yuan. If B does not pay the consideration to A when he acquires A's equity, then B is also obliged to fulfill the "actual payment" obligation of that A should have completed before transfer. 3. When there is too much foreign debt in the company or liquidation goes bankrupt, the transferee has the legal obligation to complete the "actual payment".
If the shareholder transfers the equity to evade joint and several liability for possible debts before is "in fact paid". The shareholder who transferred the equity owed a large amount of foreign debt or faced bankruptcy or liquidation. A transferred the equity to B, but B did not have the financial ability to assume the investment obligation that did not "actually paid" for . A must bear joint and several liability according to law. Because this kind of equity transfer that evades debt actually harms the public interests of other creditors, and the law does not protect this transfer. This restricts the arbitrary behavior of equity to a certain extent.
3. The company has the right to choose the obligor of "payment"
According to the provisions of the Company Law, shareholders have not completed the "payment" of the capital contribution amount within the period stipulated in the articles of association or contract, and has the right to require shareholders to pay the full registered capital. Even if the shareholders' equity transfer occurs, the company and other shareholders do not fully understand the credit status and performance capabilities of the equity transferor and transferee. Therefore, when the company only claims to make up for the capital contribution from the transferee based on the appearance of the rights, once the transferee does not have the ability to perform the contract, it will be detrimental to the company. Therefore, the company has the right to choose on the "actual payment" obligor.
4. Creditors have the right to choose the obligor of "payment"
According to the provisions of the Company Law, if the company's debt is too much or insolvent occurs, the creditor has the right to request shareholders who have not fulfilled or have not fully fulfilled their capital contribution obligations to bear additional repayment liability for the part of the company's debts that cannot be paid within the scope of the uninvested capital.
Because "paid-in" capital contribution is a legal obligation of shareholders, as long as they have obtained the identity of a company shareholder, they are obliged to contribute capital to the company. When the equity transferee is unable or unable to assume the company's debts, if the equity transferee's obligation to "pay actual" capital contribution is not fulfilled, he shall bear joint and several liability in accordance with the law.
