Serial number
Problem
Conclusions
Cluster i. System of liability of shareholders
Can shareholders be requested to supplement their contributions to the extent that the company subsequently assumes responsibility for the contribution, which is not paid in advance
The contributing shareholders shall not be liable for the replenishment of the contribution unless there is a corresponding agreement or the equity contribution is incorrect。
Can the shareholders ' failure to fulfil their financial obligations be offset by the company's claims
If insolvency is not involved, it may be set off. In the event of a company's insolvency (based on the condition of insolvency), shareholders are not supported to set off the financing obligation against the company's claims。
Financing of third-party claims
First, it is necessary to look at the transferability of financing claims, which cannot be financed. The second is to examine whether an assessment is possible and, if not, in the proceedings. The assessment may also be reassessed if it has been carried out but relevant evidence is provided to support the assessment. (assessment should be based on the status of claims at the time of financing)
Conditions for accelerated expiry of contributions
Creditors complete the burden of proof by proving that any enforcement case that is carried out by a company as a debtor cannot be executed or that the execution is terminated because there is no property available for enforcement, without the need for their own enforcement to be unenforceable or final。
Criteria for non-liability of an assignee in an assignment of equity
A transferee may be considered “not to be aware” if it proves that it has carried out the necessary reasonable verifications (e. G., access to corporate documents such as company charters, shareholders' registers, certificates of contribution, etc.) and that it has not been able to discover that the obligation to contribute has been fulfilled。
(a) multiple transfers of shares over the duration of the unsustained contribution, such as liability
The assignor and the assignee, who may make additional assignments on a one-time basis, determine the additional liability from the final assignee step by step, and implement it in accordance with the general method of enforcement of the duty of guarantee。
Is there a problem of large shareholders or other shareholders avoiding liability when shareholders who have not paid their contributions lose their rights, should their shares be reduced or transferred, and if they cannot be reduced or transferred, should the shareholders pay their respective contributions in full and receive the corresponding shares on a proportional basis
1. In the event of a reduction in the amount of the offence, on the basis of the newCorporate lawArticle 226 imposes liability on the shareholders and the responsible director of the board for the company's losses。
2. The value of an equity transfer shall be used first to cover the financing。
3. If no reduction or transfer is possible, the shareholders'shareholdings are assigned and contributions are made, at which point the shareholders bear proportional responsibility. Whether article 50 of the new company law could be applied to require joint and several liability of the initial shareholders is open。
Directors ' obligation to pay unpaid shareholders and compensation issues
The directors are required to fulfil their obligation to pay in writing and, if the shareholders do not pay after the collection, they are required to initiate a disabling procedure, otherwise the directors are liable for damages to the company. The loss is not equal to the unfunded amount and requires a specific judgement. The director who assumes that responsibility is the director responsible for the company, the non-external director or the director who does not。
Can creditors take subrogation actions on the liability of shareholders for the financing of the company and the related liability of directors require direct satisfaction of creditors? Repository vs is liquidated individually。
Disbursements may be made on an individual basis without having to enter the pool。
Group ii. Issues relating to shareholders ' rights
10
Nature of equity hosting agreement
The equity is an indirect agent, and where the company is aware of it at the time the shareholders contribute, the agreement directly binds the company directly to the hidden shareholders, who may be directly known or exercise their rights and who may be required by the company to contribute; and where the company is not aware of the surrogacy, if the company agrees (by a majority of shareholders), the hidden shareholders may be named or directly exercised their shareholders ' rights, and if the company does not agree, they cannot be so named or directly exercised。
Eleven
Consequences of the invalidity of an equity holding agreement
In cases where hidden shareholders are entitled to shareholding under laws and administrative regulations, and there are no impediments to compatibility, a prominent request by hidden shareholders should be supported, which would amount to the return of property in case of invalidity。
If the acquisition of shareholder status by an anonymous shareholder is in itself contrary to the provisions of the law (e. G. By a listed company or financial institution) or where there is an impediment to compatibility, the shareholder's well-known claim cannot be upheld, and only the assignment of equity (auction, sale, etc. To limit the terms of the competitive purchase) can be ordered to the person who has the condition of holding the equity, the hidden shareholder obtains the corresponding price, or a percentage of the nominal shareholders, hidden shareholders are distributed according to the facts。
12
Consequences of non-consensual disposition of shares by notional shareholders
Where it constitutes no right to dispose, the assignee may acquire an equity interest if it is acquired in good faith。
13
Priority purchasing rights in equity transfers
1. Agreements violating the right to preferential purchase are not invalid
2. Even if the equity interest has changed its registration, the other shareholders may exercise the right of preferential purchase up to 30 days from the date of knowledge or within one year from the date of the change in registration。
14
It's a two-pack problem
1. If the first transferee registers only shareholders ' rolls, is not registered commercially and is transferred to the second transferee, the second transferee is not a bona fide transferee (without review of the shareholders ' roll) and cannot obtain an equity interest。
2. Where an equity transfer is followed by no change in registration and pledge, the good faith standard of the subject is relatively liberal and does not require a review of internal company documents。
15
How can “equal conditions” in equity enforcement be determined
The other shareholders should exercise the right of preferential purchase in the highest possible price during the auction and not in the evaluation of the price。
16
Is it not subject to the “non-distribution of profits to shareholders for five consecutive years” condition if the controlling shareholders abuse control to the detriment of the profit distribution interest of small and medium-sized shareholders
Yes。
Group iii on corporate governance issues
17
The issue of directors ' damages to third parties
1. A director's external relationship in the exercise of his or her functions is similar to that of an agent, whose official act is that of a company, and the legal consequences thereof are also for the company. The direct liability of directors to third persons is to convert or extend their liability to the company to third persons and to fully safeguard the rights of the injured person, but only to the extent that the directors have committed wilful or gross negligence in the performance of their duties。
2. Directors ' liability to third persons applies to torts and civil legal acts (e. G. The use of contract fraud, wilful breach of contract, etc.) and it is suggested that they be followed by some typical acts。
3. Directors ' third-party liability should be understood as supplementary liability, i. E., first to the company and second to the extent that the company is not liable。
18
Does the abuse of the right of control by shareholders under articles 21 and 23 of the new companies act include the actual controlling person
An expansionary interpretation could be considered, including the actual controller. It is recommended that subsequent changes in judicial interpretation be adjusted。
19
How abuse of control is defined
For example, the exercise of the right of control does not comply with the procedures established by law or by company charters, the exercise of the right of control does not conform to the principle of proportionality, the exercise of the right of control results in the improper transfer of the company's assets, the impairment of corporate interests and other stakeholders. (the parent-to-subsidiary financial transfers cannot simply be identified as an abuse of control, further examine whether they are operational transfers and create legal relationships such as borrowing)
20
Question of the standing of the plaintiff in the representation proceedings
A representative action may be brought by the holder of the present share in respect of a prior act of damage to the company's interests. There is no restriction on the standing to bring a shareholder representative action against shareholders in a limited liability company。
21
Pre-suits for shareholders ' representation
1. In the case of an audit committee established without a supervisory board, the shareholders shall request an action from the audit committee when they initiate a representational action. An action against a member of the board of auditors shall be filed with the board。
2. In the case of audit committees that do not have supervisory or supervisory functions, eligible shareholders may initiate proceedings against directors and senior managers directly under article 189 of the new companies act, without having to perform the pre-qualification procedure for representational proceedings。
22
Scope of the shareholders ' representation action
The shareholders ' representation proceedings include torts and contractual acts committed by others. Cases involving avoidance, avoidance, etc. Of the validity of the contract, even unrelated transactions, are covered by the shareholders' representation action against “others”。
23
Problems with related transactions
A related transaction is subject to clear procedural requirements in the law or in the company's charter, and the related transaction is subject to statutory procedures, claiming that the transaction is unfair, requiring the party claiming damages to prove that the transaction in substance is prejudicial to the company's interests; and that the related transaction does not follow the procedural requirements described above, or that there is no explicit procedure in the law or in the company's charter for the related transaction, so that the party must prove the material fairness of the outcome of the transaction, otherwise it should be liable to the company for unfair transactions。
In addition, the related transaction does not per se affect the validity of the contract, which is to be judged in accordance with the general rules。
Iv. Questions on corporate liquidation
24
Liquidation of obligations
The director is the company's liquidator and the controlling shareholders of the company, the de facto controller, who is not a director of the company but actually performs the company's affairs, may be included in the liquidation obligation。
25
Stakeholders
This should include shareholders and creditors of the company, and directors。
26
Subject matter of compulsory liquidation
A breach of the obligation to liquidate may seriously harm creditors or shareholders if the obligation to liquidate fails to perform its obligation to liquidate in a timely manner, if it fails to establish a liquidation group, if it does not constitute a liquidation group or if it deliberately delays liquidation。
27
Responsibility of directors for not forming liquidation teams in a timely manner
If the liquidation obligation does not form a liquidation group in a timely manner and results in the depreciation, loss, damage or loss of property, the liquidation obligation is liable (non-joint and several) accordingly. At the same time, it is necessary to consider whether there is a causal link between the loss and the failure to form a liquidation group in a timely manner, for which the burden of proof is on the liquidation obligation。
In cases where liquidation is not possible, the director should in principle be presumed to be fully liable for the extent to which the creditor's debt cannot be liquidated, unless he provides sufficient evidence to mitigate it (e. G. If he applied to the people's court for the appointment of a liquidation group, or if he has committed acts to preserve the solvency of the company, such as guarding the company's property, keeping financial records, etc.)。
28
Liability of members of the liquidation team
The obligation to liquidate and the member of the liquidation group would, in most cases, overlap and have essentially the same liability. However, the members of the liquidation group may include intermediaries, shareholders, corporate executives and not just directors; the members of the liquidation group are primarily responsible to the company for neglecting to perform liquidation duties, and are liable to creditors for gross negligence or negligence。
29
Mandatory and summary liquidation
Article 240 of the new companies act provides for a system of summary write-off in cases where in practice a large number of zombie companies have had difficulties in writing off, long cycles, etc. A summary write-off is a write-off that does not require liquidation proceedings and is therefore not linked to the liability of the liquidator。
Article 241 of the new companies act provides for a system of compulsory cancellation, which should be liquidated without the need to be written off, so that the company may claim the liability of the original shareholder and of the debtor。
30
Forced dissolution
1. In the case of compulsory dissolution proceedings, the parties may be acquitted of their claim if it would be fair and just to hear that the impasse could be broken by the transfer of shares or shares by part of the company's shareholders, the concession of shares or shares by other shareholders, the concession of part or shares by others, the reduction of the company's assets, the separation of the company, etc. The dismissal of the claim by the other shareholders shall be inadmissible if they have brought an action on the same grounds。
An application for the appointment of a liquidation group by the parties concerned may be rejected by the director if he or she advocates liquidation by his or her own organization。
3. When the people's court ordered the company to be dissolved, the liquidation was carried out and a party was supported in rehearing, and if the liquidation was completed, the company was cancelled in order to settle the loss. An option should also be to restore the company to its original state if the company has not been liquidated or cancelled and if it is feasible to ensure restitution of property disposal (in particular, property in which the company produces and operates) or equity ownership。
