Solemnly declare: Plagiarism is strictly prohibited, violators will be prosecuted!
may not be reproduced without authorization!
Author of this article: Lawyer Zhang Chunguang [Jintiancheng Law Firm]
Personal monographs: "Full Solutions for Difficult Problems in Second-hand House Purchase and Sales and Rules for Referring Special Cases", "Full Solutions for Difficult Problems in Execution and Execution Objection and Sales Rules for Referring Typical Cases"
This issue is more common in judicial practice. I have written some articles on the addition of shareholders as the person subject to execution in my WeChat public account "Practical Research on Contract Effectiveness". This article specifically shares with you the issue of transferring equity before the subscribed capital of the old shareholder has not yet been paid.
1. An old shareholder may be added, but no new shareholder may be added
1. An old shareholder may be added
"Provisions of the Supreme People's Court on Several Issues Concerning Changes and Adding Parties in Civil Execution" (hereinafter referred to as the "Regulations") Article 19: As the company subject to execution, its property is not enough to repay the debts determined by the effective legal documents, and its shareholder fails to fulfill its capital contribution obligations in accordance with the law, and the applicant for execution applies for change, add the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the provisions of the Company Law is the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it.
According to this provision, if the old shareholder fails to fulfill the capital contribution obligation in accordance with the law, the applicant for execution may apply to add the old shareholder as the person subject to execution. Even if the capital contribution period for the old shareholder has not reached when the equity is transferred, it is still considered " has not fulfilled its capital contribution obligations in accordance with the law and that the equity is transferred."
2. New shareholders cannot be added
. Article 18, paragraph 1 of the "Interpretation III of the Company Law" stipulates that if a shareholder of a limited liability company transfers its equity if it fails to perform or fully performs its capital contribution obligations, and the transfers its equity if it knows or should know about this, and the company requests the shareholder to fulfill its capital contribution obligations and the transferee bears joint and several liability for it, the people's court shall support ; if the company's creditor filed a lawsuit with the shareholder in accordance with Article 13, paragraph 2 of these Regulations and requests the aforementioned transferee to bear joint and several liability for it, the people's court shall support it.
Creditors cannot add a new shareholder as the person subject to execution in accordance with Article 18, paragraph 1 of Interpretation III of the Company Law, because the provisions do not stipulate that new shareholders can be added as the person subject to execution in this case. The legal basis for adding the person to be executed should be the enforcement provisions such as the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Adding Parties in Civil Execution", rather than other legal judicial interpretations. This is also the need to weigh the interests of all parties and prevent the unlimited expansion of the power of execution review, or this is the characteristic of written law.
However, creditors may protect their rights through litigation procedures in accordance with Article 18, paragraph 1, etc. of the "Interpretation III of the Company Law".
2. Legal analysis of old shareholders can be added
The Company Law stipulates that shareholders shall pay the amount of capital subscribed by each in full on time and in full on time; Article 3 and paragraph 2 stipulate that shareholders of a limited liability company shall be liable to the company to the extent of the capital subscribed.
Article 13, paragraph 2 of the "Interpretation of the Company Law III" stipulates that if a company's creditor requests shareholders who have not fulfilled or have not fully fulfilled their capital contribution obligations to bear supplementary compensation liability for the part of the company's debts that cannot be paid within the scope of unpaid capital interest, the people's court shall support
(I) Special debts to the company
From the perspective of the contract law, the company and shareholders are two independent civil subjects and two independent "people". The shareholder subscribes the unpaid capital contribution, that is, the shareholder's debt to the company.
The reason why this is a special debt is because this debt is the shareholder’s commitment to the company’s unspecified creditors and is the premise of shareholders’ limited liability. Therefore, this debt cannot be understood from the perspective of contract law. For example, the "relativeness" of this debt is greatly restricted: generally speaking, a company has no right to exempt shareholders from this debt or extend its performance period.
(II) Subsidized capital "accelerated" maturity
"Jiumin Minutes" Article 6 stipulates: "Under the registered capital subscription system, shareholders enjoy term benefits in accordance with the law. If the creditor requests shareholders who have not completed the capital contribution period to bear additional compensation liability for debts that cannot be paid within the scope of the uninvestment, the people's court will not support it. However, except for the following circumstances: (1) The company is the person subject to execution, the people's court is poor in the case of the company as the person subject to execution. All enforcement measures have no property available for execution, and there is a reason for bankruptcy, but no application for bankruptcy is made; (2) After the company's debt is arising, the company's shareholders' meeting resolves or extends the shareholder's capital contribution period in other ways. "
The provisions of Article 6 of the "Nine Minutes" should be understood as follows:
1. Protecting the term interests of shareholders is the principle of protecting the term interests of shareholders
0 The term interests of shareholders are the rights granted to shareholders by the judicial interpretation of laws and regulations such as the "Company Law" and shall not be easily denied.
2. Referring to the provisions of Bankruptcy Law , the period of submission of shareholders can accelerate the maturity of
"The people's court exhausted the execution measures and had no property for execution" is basically equivalent to "the corporate legal person cannot repay the due debts, and the assets are insufficient to repay all debts or obviously lack the ability to repay." "The people's court exhausted the enforcement measures and had no property available for execution" means that the person subject to execution has the conditions for bankruptcy. If the person subject to execution meets the conditions for bankruptcy but has not entered the bankruptcy procedure, the capital contribution subscribed by the shareholders of the execution shall be declared accelerated due to the accelerated maturity of the subscribed capital contribution by the shareholders of the execution in accordance with the provisions of Article 35 of the Bankruptcy Law (if the people's court accepts the bankruptcy application and the investor's capital contribution has not yet fully fulfilled its capital contribution obligations after the people's court accepts the bankruptcy application, the administrator shall require the investor to pay the subscribed capital contribution without being subject to the capital contribution period). This is in line with the law and the value orientation of the majority.
3. The resolution of the company shareholders (large) meeting that extends the period of shareholders' capital contribution is "invalid"
. Protecting the term interests of shareholders is a basic principle of the Company Law. In addition to the above provisions of the Bankruptcy Law, the provisions of the Company Law and its judicial interpretation on the accelerated maturity of shareholder submission of shareholders are only Article 22, paragraph 1 of the "Company Law Interpretation II" (When the company is dissolved, the capital contributions that the shareholder has not paid yet should be used as liquidation property. The capital contributions that the shareholder has not paid yet, including the capital contributions that the due should not be paid at the maturity, and the capital contributions that have not yet expired in installments in accordance with Articles 26 and 80 of the Company Law.) From this, it can also be seen that the breakthrough of the "shareholder's term interests" must be in extremely special circumstances.
After the company's debt is arising, if the company's shareholders' meeting resolves or extends the shareholder's capital contribution period in other ways, the creditor has the right to request shareholders who have not completed the capital contribution period to bear additional compensation liability for the company's debts that cannot be paid within the scope of the uninvestment on the grounds that the company cannot repay the due debts. This sentence should be understood as follows: the original articles of association stipulate that the period for shareholders to subscribe capital contributions to A. If the company's shareholders (major) meeting decides to extend the period for shareholders to B in other ways after the company's debts arise, the creditor has the right to request that the company fail to repay the due debts, but the shareholders who have reached A have been subscribed for additional compensation for the debts that the company cannot repay within the scope of their subscribed capital contributions.
The legal source of the above understanding is: referring to the right of revocation stipulated in Article 74 of the Contract Law (if the debtor waives his due debt or transfers property free of charge, causing damage to the creditor, the creditor may request the people's court to revoke the debtor's behavior.) That is, the applicant for execution is the creditor, the person subject to execution (company) is the debtor, and the shareholder is the debtor's debtor. Although the company has not waived its claims against shareholders, it has extended its payment time and harmed the interests of creditors. The creditor has the right to revoke the act of extending the period, but the creditor has no right to revoke the period interests originally enjoyed by the debtor's debtor.
(III) Regarding the legal consequences of this article:
Old shareholders are not exempted from the obligation to continue to pay the subscribed capital due to the transfer of equity, that is, the old shareholders shall bear additional compensation liability for the company's debts within the scope of their subscribed but have not paid the capital contribution
On the one hand, the obligation of the old shareholders to subscribe to the capital contribution can be understood as a legal obligation, which is not transferable and cannot be exempted (except for special circumstances).
On the other hand, it can also be understood as this: the debts subscribed by the old shareholders, the corresponding creditors are the company and an unspecified third party. The old shareholders cannot obtain the consent of the unspecified third party, so when they transfer the equity, they cannot transfer the debts subscribed by the capital.
3. Case
From the cases of judicial practice, most cases support shareholders who transfer their equity before the expiration of the subscription period are the subject of execution, especially in the context of the provisions on the accelerated maturity of shareholder subscribed capital, this view has become the mainstream view. Of course, there are different views in judicial precedents.
1. The old shareholder may be added as the person subject to execution
(1) The Civil Judgment of Guizhou Higher People's Court (2019) Qianminzhong No. 658 holds that according to Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution": "As the company subject to execution, its property is not enough to repay the debts determined by the effective legal documents. If its shareholder fails to perform its capital contribution obligations in accordance with the law, it will transfer equity. If the applicant for execution applies for change, add the original shareholder or bears joint and several liability for the capital contribution in accordance with the Company Law, the people's court shall support it." According to this provision, it is still necessary to review whether Wen Kunshan has fulfilled the capital contribution obligations. In both the first and second instance appeal requests, Wen Kunshan claimed that he had actually fulfilled his capital contribution obligations, but according to Article 90 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China": "The parties shall provide evidence to prove the facts on which the litigation request is based or the facts on which the other party's litigation request is based, except as otherwise provided by law. If the parties fail to provide evidence or the evidence is insufficient to prove their facts before making a judgment, the parties with the burden of proof shall bear the adverse consequences." Wen Kunshan should provide evidence to prove that he has fulfilled his capital contribution obligations, but in the first and second instances of this case, Wen Kunshan did not provide valid evidence to prove it, and neither submitted a certificate of capital contribution, capital verification report, capital contribution status recorded in the company's financial account book, nor provided transfer certificates for fulfilling capital contribution obligations. Based on the evidence submitted by Wen Kunshan, this court cannot determine that he has fulfilled his capital contribution obligations as agreed. According to the provisions, it was not improper to add Wen Kunshan as the person subject to execution and it was maintained.
(2) Tianjin High Court (2018) Civil Judgment No. 423 held that Article 3, paragraph 2 of the " of the Company Law of the People's Republic of China" stipulates that "the shareholders of a limited liability company shall be liable to the company to the limit of the amount of capital contribution they subscribed." Article 28, paragraph 1 stipulates that "shareholders shall pay the amount of capital subscribed by each of them as stipulated in the company's articles of association in full" and "if shareholders contribute capital in full, they shall deposit the amount of capital contribution in full into the account opened by the limited liability company in the bank." In accordance with the above provisions, the establishment of a limited liability company shall implement the registered capital subscription system. Although shareholders may decide on how to pay the capital contribution in accordance with the company's articles of association, they shall pay in full and on time, whether it is paid in one lump sum or installment payment. As a shareholder at the time of establishment of Los Angeles, Lego Group has the obligation to pay the capital contribution in full. ...When Loss Company, as the person subject to execution, has no property available for execution, as a shareholder of the company, transfers equity if it fails to fulfill its capital contribution obligations in accordance with the law, and shall bear corresponding responsibilities in accordance with the law. In the execution case, the first instance court added Lego group as the person subject to execution in accordance with Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Addition of Parties in Civil Execution".
(3) Hunan High Court (2020) Xiangminshen No. 845 Civil Ruling held that according to Article 17 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution": "As the corporate legal person to be executed, the property is insufficient to repay the debts determined by the effective legal document. If the applicant to execute applies for change, additional shareholders or investors who have not paid or have not paid the capital in full or the sponsor who bears joint and several liability for the capital contribution in accordance with the provisions of the Company Law, the people's court shall support it." Article 19 stipulates: "As the company subject to execution, its property is insufficient to repay the debts determined by the effective legal documents, and its shareholder transfers its equity if it fails to fulfill its capital contribution obligations in accordance with the law. If the applicant for execution applies for change, adds the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and assumes responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it." According to the above provisions, although shareholders enjoy term benefits in accordance with the law under the registered capital subscription system, in cases where the company is the person subject to execution, the people's court exhausts the execution measures and has no property for execution, and has a reason for bankruptcy, and does not apply for bankruptcy. Therefore, the key to whether Zhong Moumou can be added as the person to be executed is whether Changxin Company has property for execution. After investigation, there were several civil disputes between Changxin Company as the person subject to execution. After the execution court inquired about its property information, no property available for execution was found. As the original shareholder of Changxin Company, Zhong Moumou failed to pay the registered capital in full, and it was not improper for the original court to add him as the person to be executed during the execution.
(4) Heilongjiang High Court (2020) Heimin Shen No. 786 held that according to Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" "As the company to be executed, its property is insufficient to repay the debts determined by the effective legal document, and its shareholders transfer equity if they fail to fulfill their capital contribution obligations in accordance with the law. If the applicant to execute applies for change, add the original shareholder or bear joint and several liability for the capital contribution in accordance with the Company Law, the people's court should support it." Therefore, the second instance held that Ding Jiwang, as the applicant to execute, cannot repay the debts determined by the effective legal document, and it is not improper to apply for the additional shareholder Sai Moumou as the person to execute to support it.
(5) Zhengzhou Intermediate People's Court (2020) Yu 01 Civil Final No. 1682 held that although the evidence submitted by the appellant showed that Zhang (Party A) signed a Subike Company equity transfer agreement with Fan (Party B) on May 4, 2016, and Zhang transferred the Subike Company equity in his name to Fan, but as of June 20, 2019, the private enterprise basic registration information query form of Henan Subike Catering Service Co., Ltd. still showed that the legal representative of the company was Fan, the shareholder was Fan, the registered capital was RMB 5 million and the paid-in capital was RMB 0. Moreover, according to Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution", if a shareholder transfers his equity if he fails to perform his capital contribution obligations in accordance with the law, and the applicant for execution applies to add the original shareholder as the person subject to execution and bears liability within the scope of failure to contribute in accordance with the law, the people's court shall support it; according to Article 26, paragraph 1 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)", if the company's creditor requests the shareholder registered in the company registration authority to bear supplementary compensation liability for the unpaid part of the company's unpaid capital interest on the grounds that the shareholder registered in the company registration authority fails to fulfill the capital contribution obligations, and the people's court will not support it if the shareholder defends the reason that he is only a shareholder in the name rather than an actual investor. In summary, Zhang’s reasons for appeal lack factual and legal basis, and this court does not support it.
(6) Dalian Intermediate People's Court (2020) Liao 02 Minzhong No. 1140 held that the focus of the second instance of this case is whether Zhao can add Yansi Company as the person subject to execution and require him to bear corresponding responsibilities if the equity is transferred after the subscription period of Yansi Company is not completed. First, Article 3, Paragraph 1 and Paragraph 2 of the Company Law stipulate: "A company is a corporate legal person, has independent legal person property and enjoys legal person property rights.The company shall be liable for the company's debts with its entire property. Shareholders of a limited liability company shall be liable to the company to the limit of their subscribed capital; shareholders of a joint stock company shall be liable to the company to the limit of their subscribed shares. Therefore, part of the assets not invested by the shareholders are also the property of the company, and the paid capital or unpaid capital should not be distinguished. The provisions on the capital contribution period in the company's articles of association are only specific arrangements for the shareholder's capital contribution obligations and cannot be opposed to a bona fide third party. In this case, Yansi Company, as the original shareholder of Zhihan Technology, promised in the company's articles of association The company's creditor Zhao Moumou should not be opposed. Secondly, Zhihan Technology was established in September 2016. Yansi Company, as the original sole shareholder of Zhihan Technology, subscribed capital contribution is RMB 2 million. Although Zhihan Technology promised the subscription period of the capital contribution to July 2036 in the company's articles of association, the subscription period promised by the capital contribution should be the period of existence. During this period, Yansi Company has the obligation to contribute capital. Therefore, although Yansi Company's subscription period has not yet expired, it still has a capital contribution to Zhihan Technology when transferring its equity. The obligation of capital contribution shall not be transferred or exempted due to equity transfer. Again, my country's Company Law determines the principle of capital determination, capital maintenance and capital unchange to ensure that the company has a certain scale of capital from its establishment to its existence, thus having the most basic material basis for debt assumed. In this case, after Zhihan Technology was established, Yansi Company, as the original shareholder, did not pay any capital contribution, shortly after Zhao Moumou's claim was supported by the court, it will be considered at 0 yuan soon after the debt claim claimed by Zhao Moumou was supported by the court. The transfer of equity of Zhihan Technology is actually a donation of the equity to others free of charge after the debt involved in the case arises, and after investigation by the court, no property available for execution of Zhihan Technology is found. During the first instance lawsuit in this case, the first instance court could not find Zhihan Technology after exhausting the delivery procedures and unable to find Zhihan Technology, the delivery method was delivered to Zhihan Technology. Combined with the amount of the debt claimed by Zhao Moumou, the amount of the debt was less than 20,000 yuan and the registered capital of Zhihan Technology was 2 million yuan, but the effective judgment was still not fulfilled, and the only shareholder of Zhihan Technology, Yansi Company The fact that the equity is transferred free of charge should be regarded as the expected breach of contract for the company's capital contribution liability. According to Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" "As the person subject to execution, the property of the company is insufficient to repay the debts determined by the effective legal document. If its shareholder fails to fulfill its capital contribution obligations in accordance with the law, the applicant for execution will apply for changes, additions to the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law, it will be executed. If a person bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support the provisions of "the first instance judgment is to add Yansi Company as the person subject to execution and to rule that he shall bear responsibility within the scope of RMB 2 million.
(7) Jinan Intermediate People's Court (2019) Lu 01 Zhiyi No. 1292 Execution Ruling held that according to Article 19 of the "Regulations of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution", the public as the person subject to execution If the property is insufficient to repay the debts determined by the effective legal document, and its shareholder transfers its equity if it fails to fulfill its capital contribution obligations in accordance with the law, and the applicant for execution applies for changes or additions to the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. In this case, when Wanning Company increased its capital, shareholder Lu Moumou subscribed an additional capital contribution of 3.398 million yuan, but after the subscription period expired, he had not yet fulfilled the increase The equity was transferred to Chu Mouli and Chu Mouzheng under the premise of capital obligations. Therefore, the applicant Xiaoqinghe Company applied for the addition of Lu Moumou as the person subject to execution in this case, and assumed the liability for repayment of Wanning Company's debts within the scope of his unpaid capital contribution of 3.398 million yuan. It complies with the law and this court supports it.
(8) Tianjin No. 1 Intermediate People's Court (2020) Tianjin 01 Civil Final No. 2173 held that under the registered capital subscription system, shareholders enjoy term benefits in accordance with the law.If the creditor requests shareholders who have not completed the capital contribution period to bear additional compensation liability for the company's unpaid debts within the scope of the unpaid capital contribution, the People's Court will not support it, but in cases where the company is the person subject to execution, the People's Court exhausts the execution measures and has no property for execution, and has a reason for bankruptcy, and does not apply for bankruptcy. According to the facts that have been found, Ruitong Asia Company, as the obligation performer in the mediation document of Tianjin Binhai High-tech Industrial Development Zone, failed to fulfill its obligations in accordance with the mediation document. After the court exhausted the enforcement measures, there was no property available for execution, and the execution procedure has been terminated. During the trial, Ruitong Asia Company also made it clear that the company's assets cannot be repaid with foreign debts and did not apply for bankruptcy to the court. Therefore, it was not improper for the original court to add the appellants as the subjects. Since the assets of a limited liability company cannot repay external debts and have already had bankruptcy reasons, shareholders should speed up the payment of their subscribed capital contributions, so each shareholder should bear additional compensation liability for debts that the company cannot repay based on the amount of capital contributions they subscribed.
(9) Shenyang Intermediate People's Court (2020) Liao 01 Minchu No. 148 held that the additional person to be executed in the execution procedure should follow the principle of statutoryism, that is, it should be limited to the scope of changes and additions made by my country's laws and judicial interpretations. In this case, Armstrong Company, in accordance with Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" "As the company under execution, its property is insufficient to repay the debts determined by the effective legal documents, and its shareholders transfer their equity if they fail to fulfill their capital contribution obligations in accordance with the law. If the applicant applies for change, add the original shareholder or the sponsor who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution, and if the person subject to investment is not responsible for the capital contribution in accordance with the law, the people's court shall support it." The application for the addition of Guo Yang as the person subject to execution. This court believes that according to the "Shareholders' Meeting Resolution" of Jiarui Hengyang Company and the "Company Articles of Association Amendment", Jiarui Hengyang Company increased the company's registered capital, and Guo Yang's subscribed capital increased from 1 million yuan to 9 million yuan, and the capital contribution period for the increased subscribed capital of 8 million yuan is until January 10, 2014. According to Article 19 of the "Provisions on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)", if the shareholder of a limited liability company transfers its equity if it fails to perform or fully performs its capital contribution obligations, and the transferee knows or should know that the company requests the shareholder to fulfill its capital contribution obligations and the transferee bears joint and several liability for it, the people's court shall support it; if the company's creditor filed a lawsuit with the shareholder in accordance with Article 13, paragraph 2 of these Regulations and requests the aforementioned transferee to bear joint and several liability for it, the people's court shall support it. Now Armstrong Company has applied to add Guo Yang as the person subject to execution. Guo Yang should provide evidence to prove that he has paid 8 million yuan in capital on time. Otherwise, he should bear the legal consequences of inability to provide evidence and should bear the additional compensation liability for the company's debts within the scope of not fully investing 8 million yuan. Regarding the "Agreement of Actual Investors" signed by Guo Yang with Zhang and Guo Yan, this court believes that the agreement is an internal agreement between him and Zhang and does not have the effect of public disclosure, and cannot deny that Guo Yang is a shareholder of Jiarui Hengyang Company. Based on this, Guo Yang claimed that he should not bear the liability for compensation for shareholders to fail to fulfill their capital contribution obligations to the company's creditors, which cannot be established.
(10) Nanning Intermediate People's Court (2020) Gui 01 Minzhong 5553 Civil Judgment held that Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" stipulates: "As the company to be executed, its property is insufficient to repay the debts determined by the effective legal document. If its shareholder fails to fulfill its capital contribution obligations in accordance with the law, it will transfer its equity. The applicant for execution applies for change, add the original shareholder or the applicant may apply for change or add the original shareholder or The Company Law stipulates that the promoter who bears joint and several liability for the capital contribution is the person subject to execution and shall bear liability within the scope of failure to contribute in accordance with the law. "The debt in this case occurred during the period when Xie and Liu bought all the shares of Yujia Company held by Baichengtong Company by subscribed capital and became shareholders of Yujia Company. After June 21, 2019, although Xie and Liu were no longer shareholders of Yujia Company, they transferred their equity without fulfilling their capital contribution obligations.As the person subject to execution, Yujia Company has not been open since August 2018. The first instance court has exhausted the enforcement measures. Yujia Company has no property available for execution. It has a reason for bankruptcy, but it has not filed for bankruptcy. The applicant for execution applied for change on the grounds that the company could not repay the due debts, and added the original shareholders of Yujia Company Xie and Liu Moumou as the subjects to execution. The request was made to bear additional compensation liability for the debts that Yujia Company could not repay within the scope of uninvestment, and should be supported in accordance with the law.
(11) Guang'an Intermediate People's Court (2020) Sichuan 16 Minzhong No. 1002 held that during the execution of the sales contract dispute between Mingxin Hardware Business Department and Guang'an Xinhuidian Company, the first instance court found that after inquiry, it was found that there were deposits, real estate, vehicles, securities and other properties under the name of Guang'an Xinhuidian Company for execution, and Li Moumou did not provide the property that Guang'an Xinhuidian Company can execute. Guang'an Xinhuidian Company has now stopped operating, so it has become a fact that Guang'an Xinhuidian Company's property is not enough to repay the debts determined by the effective legal documents. Under the registered capital subscription system, although shareholders enjoy term benefits in accordance with the law, Guang'an Xinhuidian Company, as the person subject to execution, has exhausted the enforcement measures and no property available for execution, and has a reason for bankruptcy. However, Guang'an Xinhuidian Company has not applied for bankruptcy. Its behavior of delaying shareholders' capital contribution obligations has expired and has seriously damaged the interests of creditors. The Mingxin Hardware Operation Department requested shareholders who had not completed their capital contribution period to bear additional compensation liability for debts that the company could not repay within the scope of the capital contribution, on the grounds that Guang'an Xinhuidian Company was unable to repay the due debts, and should be supported. Before Li Moumou transferred the equity of Guang'an Xinhuidian Company to Wei Moumou on September 4, 2018, he did not fulfill his capital contribution obligations. After the equity transfer, neither Li Moumou nor Wei Moumou fulfilled his capital contribution obligations. Although Li Moumou is not a shareholder of Guang'an Xinhuidian Company, he should still bear responsibility within the scope of failure to contribute in accordance with the law. The first instance court added Li Moumou as the person subject to execution based on the application of Mingxin Hardware Business Department, and there was no inappropriateness.
(12) Shijiazhuang Intermediate Court (2020) Ji 01 Zhiyi No. 100 held that, first of all, the question is whether Yan Moumou can be added as the person to be executed in this case. Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" stipulates that if a company as the person subject to execution has a property insufficient to repay the debts determined by the effective legal document, its shareholder transfers its equity if it fails to perform its capital contribution obligations in accordance with the law, and the applicant for execution applies for change, adds the original shareholder or bears joint and several liability for the capital contribution in accordance with the Company Law as the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. In this case, Huade Hydraulic Technology Company, as the person subject to execution, its enterprise nature is a limited liability company (soonly owned by natural person). Yan Moumou, as the company's initiator and the company's original sole shareholder, subscribed the company's registered capital of 50 million yuan and the actual investment was 0 yuan. Although it was agreed that the company's registered capital would be paid before January 14, 2045, the respondent Yan Moumou and Fan Moumou signed the equity transfer agreement on Huade Hydraulic Technology Company on January 14, 2019, and transferred 100% of the equity of Huade Hydraulic Technology Company to Party B Fan Moumou at a price of 4,000 yuan. Yan Moumou has not fulfilled the capital contribution obligation in accordance with the law and transferred the equity, which is in line with the above-mentioned situation of adding the person subject to execution.
(13) Guangzhou Intermediate People's Court (2020) Guangdong 01 Zhiyi No. 189 Enforcement Ruling held that Article 17 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" stipulates: "As the legal person to be executed, the property is insufficient to repay the debts determined by the effective legal document. The applicant for execution applies for changes, additional shareholders or investors who have not paid or have not paid the capital in full or shall bear joint and several liability for the capital contribution in accordance with the provisions of the Company Law. If the person is the person subject to execution and bears responsibility in accordance with the law within the scope of the capital contribution that has not yet been paid, the people's court shall support it. "Article 19 stipulates: "As the company subject to execution, its property is insufficient to repay the debts determined by the effective legal document, and its shareholder transfers its equity if it fails to fulfill its capital contribution obligations in accordance with the law. If the applicant for execution applies for change or addition of the original shareholder or the sponsor who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and bears responsibility within the scope of the capital failure, the people's court shall support it."In this case, the shareholders of xx Company changed from Zhang xdong, Zhang x, and Zhong to Zhang xdong, Zhang xguang and Zhang x on March 30, 2016, and were changed to Zhang xdong, Zhang xguang, Li xzhi and Fu xhong on August 19, 2016, and were changed to Rong xsu on December 22, 2018. The original shareholders did not fulfill their capital contribution obligations before the above three equity transfers. Although the above shareholders have not paid their capital contributions at present because they have not completed the capital contribution period, the subscribed amount and payment period The limit is an internal agreement between the company and shareholders, and shareholders, and cannot confront creditors outside the company. Since xx company and Rong Haili are unable to repay the debts determined by the effective legal documents after compulsory execution, the applicant xx company applies for additional shareholders Zhang xdong, Zhang xguang, Zhang x, Li xzhi and Fu xhong who have transferred their equity without fulfilling their capital contribution obligations are the subjects. This court supports it. Because xx company's registered capital is 30 million yuan, so the total amount of liability for the debts of Zhang xdong, Zhang xguang, Zhang x, Li xzhi and Fu xhong for xx company's debts shall not exceed the scope of xx company's registered capital of 30 million yuan. [Note: The referee believes that in the case of multiple equity transfers, all forward shareholders except the current shareholders can be added as the person subject to execution]
(14) Lianyungang Intermediate People's Court (2020) Su 07 Minzhong No. 486 believes that "The highest Article 19 of the People's Court's Provisions on Several Issues Concerning Changes and Additions of Parties in Civil Execution stipulates that "As the company subject to execution, its property is insufficient to repay the debts determined by the effective legal documents, and its shareholders transfer equity if they fail to fulfill their capital contribution obligations in accordance with the law. If the applicant for execution applies for change, add the original shareholder or the sponsor who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. "In this case, Lin Moumou, as the original shareholder of the company, after acquiring 5% of Sun Mou's equity (400,000 yuan), Jiang Mou's company increased its capital. Lin Moumou subscribed the capital contribution amount of 1.2 million yuan, and the actual capital contribution was 400,000 yuan. He transferred the equity without fulfilling the capital contribution obligation in accordance with the law. The first instance court ruled that Lin Moumou would bear responsibility within the scope of 800,000 yuan that did not contribute in accordance with the law. In accordance with the above legal provisions, Lin Moumou's claim that his company's transfer of equity is not a legal shareholder, and this court will not support it.
(15) Zhengzhou The Civil Judgment of the Intermediate People's Court (2020) Yu 01 Minzhong No. 6662 believes that Article 17 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additional Parties in Civil Execution" stipulates: "As the legal person under execution, the property of the enterprise is insufficient to repay the debts determined by the effective legal document. If the applicant for execution applies for changes, additional shareholders, investors who have not paid or paid in full or have not paid the capital contribution in full, or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law is the person under execution and bears liability in accordance with the law within the scope of the capital contribution that has not yet been paid, the people's court shall support it. "Article 19 stipulates: "As the company subject to execution, its property is insufficient to repay the debts determined by the effective legal documents, and its shareholder transfers its equity if it fails to fulfill its capital contribution obligations in accordance with the law. If the applicant for execution applies for change, adds the original shareholder or bears joint and several liability for the capital contribution in accordance with the Company Law, the people's court shall support it if it is the person subject to execution and assumes responsibility within the scope of failure to contribute in accordance with the law. "In this case, the registered capital of the defendant Zijing Company is 50 million yuan. As of now, the paid-in capital of the defendant Zijing Company is 10 million yuan, of which the plaintiffs Mao and Chen subscribed 5 million yuan and 15 million yuan respectively. The subscribed capital time was changed from the original December 17, 2015 to before December 31, 2030. Although the subscribed capital time of the defendant Zijing Company's shareholders Mao and Chen did not expire, the defendant Zijing Company extended the shareholder capital time after the company's debt arising, and the defendant Zijing Company's shareholders Mao and Chen both did not contribute sufficient capital before It is proposed to transfer the equity of the Bauhinia Company (2.5 million yuan and 10 million yuan respectively) he holds. During the execution of the case, after inquiry by this court, there is no property in the name of the defendant Bauhinia Company. Combined with the corporate credit report of April 18, 2020 submitted by the defendant Duan Yulian, it can prove that the defendant Bauhinia Company is operating abnormally and has met the conditions for bankruptcy, but does not apply for bankruptcy. The above should determine the accelerated maturity of shareholders' capital contribution. The plaintiffs Mao and Chen should bear the responsibility to the applicant Duan Yulian within the range of 4 million yuan and 12 million yuan that they did not contribute in accordance with the law.
(16) The Civil Judgment of Chongqing Fifth Intermediate People's Court (2020) Yu 05 Minzhong 1438 held that whether the respondent's transfer of equity after the subsidy period is not reached is a situation where the equity is transferred without fulfilling its capital contribution obligation. Article 17 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" stipulates: "As the legal person under execution, the property of the enterprise is not sufficient to repay the debts determined by the effective legal document, and the applicant for execution applies for changes, additional shareholders, investors who have not paid or paid in full or paid the capital contribution, or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law, and bears liability in accordance with the law within the scope of the capital contribution, the people's court shall support it"; Article 19 stipulates: "As the company under execution, the property is not sufficient to repay the debts determined by the effective legal document, and its shareholders transfer equity if they fail to perform their capital contribution obligations in accordance with the law, and the promoter who has applied for changes, additional shareholders or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law is the person under execution, and bears liability within the scope of the capital contribution in accordance with the law, the people's court shall support it." The company is responsible for the company's debts with all its independent property, which also includes registered capital that has not expired in the capital contribution period under the subscription system. When the company cannot make external payments, shareholders who have not completed the capital contribution period shall fulfill their capital contribution obligations to the company, and the capital contribution obligations shall not be exempted due to equity transfer. If a company shareholder transfers equity before the subscription period is reached, it should be deemed that he clearly stated by his behavior that he will no longer fulfill his unpaid capital contribution obligations, which is a case where the equity is transferred without fulfilling the capital contribution obligations in accordance with the law. According to the applicant's application, he should be added as the person subject to execution.
2. The old shareholders cannot be added
(1) The Civil Judgment of Beijing High Court (2019) Jingmin Zhong 359 held that Beijing Zhengrun Energy Company was established on April 24, 2014. According to the company's articles of association, Gao's subscribed capital was March 27, 2017. On March 29, 2015, Gao transferred his 5 million yuan investment in Beijing Zhengrun Energy Company to Guoxin Zhixi Center, and subsequently completed industrial and commercial registration. Beijing Zhengrun Energy Company's guarantee for the debt involved in the case occurred after the aforementioned capital contribution transfer. Therefore, this court believes that because Gao's capital contribution obligations have not yet expired when he transferred his capital contribution obligations, his capital contribution obligations have been transferred. In the absence of evidence to prove that his transfer between him and Guoxin Zhixi Center violates the mandatory provisions of laws and regulations, Gao's transfer of capital contribution does not fall into the case where the capital contribution period expires and the capital contribution obligations are not fulfilled. The first instance court's determination of Bian's claim to add Gao as the person to be executed and bear responsibility within the scope of the principal and interest of the corresponding capital contribution is not improper. This court should uphold it.
(2) Beijing No. 3 Intermediate People's Court (2020) Beijing 03 Zhiyi No. 87 holds that the company as the person subject to execution has a property inadequate to repay the debts determined by the effective legal documents, and its shareholders transfer their equity if they fail to fulfill their capital contribution obligations in accordance with the law. If the applicant for execution applies for change or additional the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. In this case, according to industrial and commercial materials, Liu's subscribed capital contribution time was December 31, 2030, and has not yet expired. Therefore, the applicant for execution Yihua Life Technology Co., Ltd. now requests to add Liu as the person subject to execution on the grounds that Liu did not fulfill his capital contribution obligations in accordance with the law, and did not meet the statutory conditions for adding the person subject to execution during the execution process, so the additional request for him will not be supported by this court.
(3) The Civil Judgment of Leshan Intermediate People's Court of Sichuan Province (2019) Sichuan 11 Minzhong 1540 believes that the additional person to be executed should be strictly carried out in accordance with the provisions of the law and judicial interpretation. If the statutory additional circumstances are in compliance with the statutory additional circumstances, the additional person to be executed can be ruled to be issued and compulsory enforcement measures will be taken during execution. Although, according to the facts ascertained, the People's Court executed twice and exhausted the execution measures, Guangda Company had no property available for execution and met the conditions for bankruptcy, neither the creditor nor the debt company applied for bankruptcy. The current shareholders of Guangda Company should expedite the maturity and bear responsibility for the company's debts within the uninvestment limit.However, according to Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution", if a company as the person subject to execution is not sufficient to repay the debts determined by the effective legal documents, and its shareholder transfers its equity if it fails to fulfill its capital contribution obligations in accordance with the law, and the applicant for execution applies for change, adds the original shareholder or bears joint and several liability for the capital contribution in accordance with the Company Law as the person subject to execution and assumes responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. According to the provisions of Article 18, paragraph 1 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)", if the company's creditor requests the original shareholder who fails to fulfill or fails to fully fulfill the capital contribution obligations to bear supplementary compensation liability for the part of the company's debts that cannot be paid within the scope of unpaid capital interest, the people's court shall approve it. It can be seen from this that the original shareholder who transfers the equity can only be added as the person subject to execution if he fails to fulfill his capital contribution obligations, fails to pay or fails to fully pay the capital contribution, and he will bear responsibility within the scope of the capital contribution in accordance with the law. At the same time, the Company Law of the People's Republic of China clearly stipulates that shareholders enjoy the term of capital contribution, and the amount of capital subscribed by shareholders can be paid in installments. In this case, the person subject to execution, Guangda Company, changed its registered capital to RMB 50,000,000.00 on July 2, 2014, and its original shareholder Zhang Moumou subscribed 30,000,000.00 on capital, and revised the company's articles of association to pay the full amount before April 17, 2028. When Zhang transfers equity, the term of subscribed capital contribution has not yet expired. Zhang's failure to pay the increased capital contribution does not violate the provisions of the law and the company's articles of association. It should not be deemed as "failed to perform in accordance with the law" and "failed to perform or fully perform" capital contribution obligations, and does not comply with the provisions of Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" and the circumstances in which they should be added as the person subject to execution and the provisions of Article 18, Paragraph 1 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)" shall be added as the person subject to execution and the provisions of Article 18, paragraph 1 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)".
(4)Xi'an Intermediate People's Court (2020) Shaanxi 01 Zhiyi No. 607 holds that the focus of the dispute in this case is that the property of the company to be executed is that the property of the company to be executed is insufficient to repay the debts determined by the effective legal documents. The original shareholder transfers the equity when the subscription period has not yet expired. At this time, whether the original shareholder still assumes the obligation to fulfill the capital contribution. Under the registered capital subscription system, the original shareholder transfers the equity before the term of subscribed capital contribution has expired, and the transferred shareholder inherits the capital contribution obligation when the term of subscribed capital contribution expires. Therefore, the original shareholder has no obligation to contribute, and does not have to bear joint and several liability for the claims and debts arising from the company after the transfer of the equity. Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" stipulates that if a company as the person subject to execution has a property insufficient to repay the debts determined by the effective legal document, its shareholder transfers its equity if it fails to perform its capital contribution obligations in accordance with the law, and the applicant for execution applies for change, adds the original shareholder or bears joint and several liability for the capital contribution in accordance with the Company Law as the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. Based on this, in the case of the sales contract dispute between Jingkai Company and Baifu Company executed by this court, Yin Moumou is not a shareholder of Baifu Company during the process of signing and performing the contract. He no longer assumes the capital contribution obligation after he transfers the capital contribution, nor does he have to bear the responsibility for the claims and debts arising from the company after the transfer of capital contribution. Therefore, the original shareholder of the person to be executed, Yin Moumou transfers the equity before the expiration of the capital contribution period, which does not constitute a transfer of equity without fulfilling the capital contribution obligation in accordance with the law. The applicant for execution proposed that if Yin Moumou fails to fulfill his capital contribution obligations before the expiration of the capital contribution period, he shall be added as the person subject to execution. This court will not support this reason in accordance with the law.
(5) Tianjin No. 3 Intermediate People's Court (2020) Tianjin 03 Minzhong No. 683 held that regarding whether Mao Moumou had malicious transfer of equity to Huang Moumou, Mao Moumou's transfer of equity to Huang Moumou occurred after the execution case of the sales contract dispute between the applicant Shenyang Cable Company and the person subject to execution, Hanghui Mechanical and Electrical Company, and his self-reported transfer consideration was zero.The transferee Huang Moumou is over 78 years old and has not provided evidence to prove that he has the ability to actually fulfill his capital contribution obligations. Therefore, it is not ruled out that Mao Moumou transfers equity to Huang Moumou to evade capital contribution obligations or liquidation obligations, and there is improper expansion of the creditor's risks. However, when Mao Moumou transferred his equity to Huang Moumou, his capital contribution period had not yet expired, which did not constitute a violation of the capital contribution obligations. It does not constitute a situation where the equity was transferred without fulfilling or fully fulfilling the capital contribution obligations. Moreover, Hanghui Mechanical and Electrical Company has not currently cancelled, dissolved or entered bankruptcy proceedings, so it is difficult to support the claim that Shenyang Cable Company requested to add Mao Moumou as the person to be executed under the current circumstances. However, Shenyang Cable Company may make a claim after the relevant situation is met or the conditions are met before making a claim. Or Shenyang Cable Company believes that the shareholders of Hanghui Mechanical and Electrical Company maliciously transfer the company's equity, abuse the company's independent legal status and shareholders' limited liability to evade debts and damage the interests of creditors, they may also provide relief through other legal means.
(6) Nanjing Intermediate People's Court (2020) Su 01 Minzhong No. 106 held that as the company subject to execution, its property is insufficient to repay the debts determined by the effective legal documents, and its shareholders transfer their equity if they fail to fulfill their capital contribution obligations in accordance with the law. If the applicant for execution applies for change or addition of the original shareholder or the sponsor who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. In this case, the person subject to execution, Kaban Company, failed to perform the debt in accordance with the effective legal documents. His shareholder Xu Moumou transferred part of his equity without the expiration of the capital contribution. The transfer occurred before the debt involved in the case occurred, and did not collude to evade debts, nor did it violate the law. The appellant proposed that Xu Moumou transferred part of his equity without the expiration of his capital contribution, and his investment in Kaban Company should accelerate his maturity. This court believes that under the registered capital subscription system, shareholders enjoy term benefits in accordance with the law. In case of shareholders transferring part of their equity without the expiration of their capital contribution, the shareholders' capital contribution accelerated due to law without any basis. There is no improper rule that Xu Moumou should not be added as the person subject to execution in this case.
(7) Ningbo Maritime Court (2019) Zhejiang 72 Minchu No. 1783 Civil Judgment held that Article 17 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" "As the legal person under execution, the property of the enterprise is insufficient to repay the debts determined by the effective legal document, and the applicant for execution applies for changes, additional shareholders, investors who have not paid or paid in full or have not paid the capital contribution in full or the promoter who bears joint and several liability for the capital contribution in accordance with the Company Law, and bears liability in accordance with the law within the scope of the capital contribution, the people's court shall support it." Article 19 "As the company under execution, the property of the company under execution is insufficient to repay the debts determined by the effective legal document, and its shareholders fail to perform the law in accordance with the law." Article 19 "As the company under execution, the property of the company under execution is insufficient to repay the debts determined by the effective legal document, and its shareholders fail to perform the law in accordance with the law." If the capital contribution obligation is to transfer equity, the applicant for execution applies for change or addition of the original shareholder or the sponsor who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and assumes responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. "The above judicial interpretations are all aimed at the circumstances in which the company shareholders should perform their capital contribution obligations that have expired but have not fulfilled, and do not include the capital contribution obligations of the company shareholders whose capital contribution obligations have not expired. The debts involved in the case have arisen until the dispute arises, and the capital contribution period of the four defendants has not expired, and the registration and payment time is public. As shareholders, the four defendants enjoy the term benefits in accordance with the law and do not belong to shareholders who have not paid or have not paid full amounts in the above judicial interpretations. At that time, Zhongliang Company cannot yet require the four defendants to assume the capital contribution obligations of the shareholders. Regarding the issue of Zhongliang Company's claim that the period of debt involved in the case overlaps with the period when the four defendants served as shareholders, this court has noticed that it does not coincide completely, and even if it is completely overlapping, Zhongliang Company's claim that the shareholders shall bear supplementary liability within the scope of capital contribution for the debts incurred by the company during the period, and lacks corresponding reasons. If Zhongliang Company believes that the four defendants, as shareholders, abuse the independent legal status of the company and the limited liability of shareholders to harm the interests of the company's creditors, they may claim separately.
(8) Beijing No. 3 Intermediate People's Court (2020) Beijing 03 Zhiyi No. 90 Enforcement Ruling held that as the company subject to execution, its property is insufficient to repay the debts determined by the effective legal documents, and its shareholders transfer equity if they fail to fulfill their capital contribution obligations in accordance with the law. If the applicant for execution applies for change or addition of the original shareholder or the sponsor who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. In this case, according to industrial and commercial materials, Meng Moumou's subscribed capital contribution time was December 31, 2030, and has not yet expired. Therefore, the applicant for execution Yihua Life Technology Co., Ltd. now requests Meng Moumou to be the person subject to execution on the grounds that Meng Moumou had not fulfilled his capital contribution obligations in accordance with the law, and it does not meet the statutory conditions for adding the person subject to execution during the execution process, so this court will not support his additional request.
3. New shareholders cannot be added
00. The civil judgment of Zhengzhou Intermediate People's Court (2019) Yu 01 Minchu No. 2327 holds that the 19th provisions of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution" stipulates that as the person subject to execution, the property of the company is insufficient to repay the debts determined by the effective legal document, and its shareholder transfers the equity if it fails to fulfill its capital contribution obligations in accordance with the law. If the applicant for execution applies for change, adds the original shareholder or bears joint and several liability for the capital contribution in accordance with the Company Law, the people's court shall support it if it applies for change, adds the original shareholder or bears joint and several liability for the capital contribution in accordance with the Company Law and assumes responsibility within the scope of failure to contribute in accordance with the law. This provision is a legal basis for additional defective equity transfers. Song Moumou is the transferee shareholder. Hengle Company claims to add the transferee shareholder Song Moumou as the person subject to execution in the execution procedure without any basis.
4. Old shareholders cannot be added, nor new shareholders cannot be added. The civil judgment of Guangzhou Intermediate People's Court (2020) Guangdong 01 Civil Final 3040 believes that in accordance with Article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning Changes and Additions of Parties in Civil Execution", as the company subject to execution, its property is insufficient to repay the debts determined by the effective legal documents, and its shareholder transfers its equity if it fails to perform its capital contribution obligations in accordance with the law. If the applicant for execution applies for change, addition of the original shareholder or the sponsor who bears joint and several liability for the capital contribution in accordance with the Company Law is the person subject to execution and bears responsibility within the scope of failure to contribute in accordance with the law, the people's court shall support it. In this case, the first instance court verified in accordance with the evidence presented by Ye Mouliang that Hejia Ecological Company changed from a shareholder's actual investment of 400,000 yuan to a shareholder's actual investment of 2 million yuan on June 18, 2013. The shareholders' meeting resolution and the company's articles of association stated that the shareholders had actually invested 2 million yuan, and the investment time of the remaining investment was December 30, 2030. Because Hu Mourong and Zhang Mouyang have fulfilled their first phase of capital contribution obligations, and when Hu Mourong and Zhang Mouyang transferred their equity to He Moufang, Hu Mou and others on June 23, 2016, the second phase of capital contribution agreed in the articles of association was December 2030, and both have not yet expired. Hu Mourong and Zhang Mouyang's transfer of equity will soon transfer their capital contribution obligations to He Moufang, Hu Mou and others. The evidence provided by Ye Mouliang is not enough to prove that Hu Mourong, Zhang Mouyang and Hu have not fulfilled their capital contribution obligations in accordance with the time limit stipulated in the company's articles of association. Ye Mouliang requires additional shareholders Hu Mourong, Zhang Mouyang and Hu who have not reached the time limit to pay the capital contribution in advance to repay the company's debts. There is no factual and legal basis and this court will not support it.
