(Adopted at the 1504th meeting of the Judicial Committee of the Supreme People's Court on December 6, 2010)
(2010年12月6日最高人民法院審判委員會(huì)第1504次會(huì)議通過)
In order to correctly apply the Company Law of the People's Republic of China, by taking into consideration the judicial practice, we hereby make the following provisions on the application of law by people's courts in trial of cases involving disputes over the establishment, capital contribution, equity affirmation, etc., of companies.
為正確適用《中華人民共和國(guó)公司法》,結(jié)合審判實(shí)踐,就人民法院審理公司設(shè)立、出資、股權(quán)確認(rèn)等糾紛案件適用法律問題作出如下規(guī)定。
Article 1 A person who, for the purpose of setting up a company, signs the articles of association, contributes capital to or subscribe the shares of the company, and performs the duties relating to incorporation, shall be recognized as the promoter of the company. Promoters shall include shareholders of a limited liability company at the time of its incorporation.
第一條 為設(shè)立公司而簽署公司章程、向公司認(rèn)購(gòu)出資或者股份并履行公司設(shè)立職責(zé)的人,應(yīng)當(dāng)認(rèn)定為公司的發(fā)起人,包括有限責(zé)任公司設(shè)立時(shí)的股東。
Article 2 Where a promoter, for the purpose of setting up a company, signs in his/her own name a contract with an external party, and the external party requests the promoter to bear the contractual liabilities, the people's court shall uphold such a request.
Where a company recognizes the contract specified in the preceding Paragraph after incorporation, or has actually enjoyed the contractual rights or performed the contractual obligations, and the external party requests the company to bear the contractual liabilities, the people's court shall uphold such a request.
Where a company recognizes the contract specified in the preceding Paragraph after incorporation, or has actually enjoyed the contractual rights or performed the contractual obligations, and the external party requests the company to bear the contractual liabilities, the people's court shall uphold such a request.
第二條 發(fā)起人為設(shè)立公司以自己名義對(duì)外簽訂合同,合同相對(duì)人請(qǐng)求該發(fā)起人承擔(dān)合同責(zé)任的,人民法院應(yīng)予支持。
公司成立后對(duì)前款規(guī)定的合同予以確認(rèn),或者已經(jīng)實(shí)際享有合同權(quán)利或者履行合同義務(wù),合同相對(duì)人請(qǐng)求公司承擔(dān)合同責(zé)任的,人民法院應(yīng)予支持。
Article 3 Where a promoter signs a contract with an external party in the name of the company pending incorporation, the people's court shall uphold the claim made, after the establishment of the company, by the external party requiring the company to bear the contractual liabilities.
Where after incorporation, the company requests to be exempted from the said contractual liabilities on the ground that there is evidence proving its promoter has signed the contract with the counterpart for his/her own interests by using the name of the company then in the incorporation process, the people's court shall uphold the claim, unless the counterpart is a bona fide party.
Where after incorporation, the company requests to be exempted from the said contractual liabilities on the ground that there is evidence proving its promoter has signed the contract with the counterpart for his/her own interests by using the name of the company then in the incorporation process, the people's court shall uphold the claim, unless the counterpart is a bona fide party.
第三條 發(fā)起人以設(shè)立中公司名義對(duì)外簽訂合同,公司成立后合同相對(duì)人請(qǐng)求公司承擔(dān)合同責(zé)任的,人民法院應(yīng)予支持。
公司成立后有證據(jù)證明發(fā)起人利用設(shè)立中公司的名義為自己的利益與相對(duì)人簽訂合同,公司以此為由主張不承擔(dān)合同責(zé)任的,人民法院應(yīng)予支持,但相對(duì)人為善意的除外。
Article 4 In the event of the non-incorporation of a company for any reason, the people's court shall uphold the claim made by a creditor of the company that all or certain promoters shall be severally and jointly liable for paying off the expenses and debts incurred in the incorporation process.
Where a certain promoter, after having assumed his/her liabilities in accordance with the preceding Paragraph, requests the other promoters to share the expenses and debts, the people's court shall order the other promoters to assume the liabilities according to the agreed proportion. Where no such agreement is available, the people's court shall order the other promoters to bear the liabilities in accordance with the agreed capital contribution ratio, or to bear the liabilities equally in the absence of such a ratio.
In the event that the fault on the part of a certain promoter results in the non-incorporation of the company, and that the other promoters request the promoter at fault to bear the liability for the expenses and debts arising out of the incorporation process, the people's court shall determine the scope of liabilities of the promoter at fault according to the graveness of his/her fault.
Where a certain promoter, after having assumed his/her liabilities in accordance with the preceding Paragraph, requests the other promoters to share the expenses and debts, the people's court shall order the other promoters to assume the liabilities according to the agreed proportion. Where no such agreement is available, the people's court shall order the other promoters to bear the liabilities in accordance with the agreed capital contribution ratio, or to bear the liabilities equally in the absence of such a ratio.
In the event that the fault on the part of a certain promoter results in the non-incorporation of the company, and that the other promoters request the promoter at fault to bear the liability for the expenses and debts arising out of the incorporation process, the people's court shall determine the scope of liabilities of the promoter at fault according to the graveness of his/her fault.
第四條 公司因故未成立,債權(quán)人請(qǐng)求全體或者部分發(fā)起人對(duì)設(shè)立公司行為所產(chǎn)生的費(fèi)用和債務(wù)承擔(dān)連帶清償責(zé)任的,人民法院應(yīng)予支持。
部分發(fā)起人依照前款規(guī)定承擔(dān)責(zé)任后,請(qǐng)求其他發(fā)起人分擔(dān)的,人民法院應(yīng)當(dāng)判令其他發(fā)起人按照約定的責(zé)任承擔(dān)比例分擔(dān)責(zé)任;沒有約定責(zé)任承擔(dān)比例的,按照約定的出資比例分擔(dān)責(zé)任;沒有約定出資比例的,按照均等份額分擔(dān)責(zé)任。
因部分發(fā)起人的過錯(cuò)導(dǎo)致公司未成立,其他發(fā)起人主張其承擔(dān)設(shè)立行為所產(chǎn)生的費(fèi)用和債務(wù)的,人民法院應(yīng)當(dāng)根據(jù)過錯(cuò)情況,確定過錯(cuò)一方的責(zé)任范圍。
Article 5 Where a promoter, for the purpose of performing the duties relating to company establishment, damages the interests of another party, the people's court shall uphold the claim made, after company establishment, by the infringed party requesting the company to bear the liability for compensation. In the event that the company is not set up, the people's court shall uphold the claim made by the infringed party requesting all the promoters to bear joint and several liability for compensation.
After bearing the liabilities for compensation, the company or the promoter that is not at fault may institute recourse against the promoter at fault.
After bearing the liabilities for compensation, the company or the promoter that is not at fault may institute recourse against the promoter at fault.
第五條 發(fā)起人因履行公司設(shè)立職責(zé)造成他人損害,公司成立后受害人請(qǐng)求公司承擔(dān)侵權(quán)賠償責(zé)任的,人民法院應(yīng)予支持;公司未成立,受害人請(qǐng)求全體發(fā)起人承擔(dān)連帶賠償責(zé)任的,人民法院應(yīng)予支持。
公司或者無過錯(cuò)的發(fā)起人承擔(dān)賠償責(zé)任后,可以向有過錯(cuò)的發(fā)起人追償。
Article 6 Where a subscriber to a joint stock company fails to pay for the shares subscribed as scheduled, and still fails to make the payment within a reasonable period after being urged by the promoter of the company, as a result of which the promoter calls for another round of subscription to the shares in question, the people's court shall determine the new subscription as valid, and uphold the claim made by the company requesting the subscriber who fails to pay on time to bear the liability for compensating the losses, if any, suffered by the company due to the delayed payment.
第六條 股份有限公司的認(rèn)股人未按期繳納所認(rèn)股份的股款,經(jīng)公司發(fā)起人催繳后在合理期間內(nèi)仍未繳納,公司發(fā)起人對(duì)該股份另行募集的,人民法院應(yīng)當(dāng)認(rèn)定該募集行為有效。認(rèn)股人延期繳納股款給公司造成損失,公司請(qǐng)求該認(rèn)股人承擔(dān)賠償責(zé)任的,人民法院應(yīng)予支持。
Article 7 Where an investor makes capital contribution with the asset of which he/she is not entitled to dispose, leading the parties concerned to dispute over the validity of the capital contribution, the people's court may determine such validity with reference to Article 106 of the Property Law.
Where an investor acquires equities for the capital contribution made with the money obtained from criminal offenses such as corruption, accepting bribes, embezzlement or misappropriation, the equities shall be disposed of by auction or sale when the investor is being investigated and punished for his/her criminal offenses.
Where an investor acquires equities for the capital contribution made with the money obtained from criminal offenses such as corruption, accepting bribes, embezzlement or misappropriation, the equities shall be disposed of by auction or sale when the investor is being investigated and punished for his/her criminal offenses.
第七條 出資人以不享有處分權(quán)的財(cái)產(chǎn)出資,當(dāng)事人之間對(duì)于出資行為效力產(chǎn)生爭(zhēng)議的,人民法院可以參照物權(quán)法第一百零六條的規(guī)定予以認(rèn)定。
以貪污、受賄、侵占、挪用等違法犯罪所得的貨幣出資后取得股權(quán)的,對(duì)違法犯罪行為予以追究、處罰時(shí),應(yīng)當(dāng)采取拍賣或者變賣的方式處置其股權(quán)。
Article 8 Where an investor makes capital contribution with the right to use allocated land or the right to use land with encumbrance, and the company, other shareholders or a creditor of the company makes a claim requesting the people's court to determine that the investor has not fulfilled the capital contribution obligation, the people's court shall order the investor to complete the formalities for land changes or relieve the land from the encumbrance within a reasonable period specified. If the investor fails to complete such formalities or relieve the land from encumbrance within the prescribe time period, the people's court shall determine that the investor has failed to fully fulfill his/her capital contribution obligation pursuant to the law.
第八條 出資人以劃撥土地使用權(quán)出資,或者以設(shè)定權(quán)利負(fù)擔(dān)的土地使用權(quán)出資,公司、其他股東或者公司債權(quán)人主張認(rèn)定出資人未履行出資義務(wù)的,人民法院應(yīng)當(dāng)責(zé)令當(dāng)事人在指定的合理期間內(nèi)辦理土地變更手續(xù)或者解除權(quán)利負(fù)擔(dān);逾期未辦理或者未解除的,人民法院應(yīng)當(dāng)認(rèn)定出資人未依法全面履行出資義務(wù)。
Article 9 Where an investor makes capital contribution with non-monetary assets that have not been lawfully valued and priced, and the company, other shareholders or a creditor of the company makes a claim requesting the people's court to determine that the investor has not fulfilled the capital contribution obligation, the people's court shall entrust a lawfully qualified valuation agency to value and price the asset, and shall determine that the investor has failed to fully fulfill his/her capital contribution obligation pursuant to the law if the amount determined after valuation is significantly lower than the amount specified in the articles of association of the company.
第九條 出資人以非貨幣財(cái)產(chǎn)出資,未依法評(píng)估作價(jià),公司、其他股東或者公司債權(quán)人請(qǐng)求認(rèn)定出資人未履行出資義務(wù)的,人民法院應(yīng)當(dāng)委托具有合法資格的評(píng)估機(jī)構(gòu)對(duì)該財(cái)產(chǎn)評(píng)估作價(jià)。評(píng)估確定的價(jià)額顯著低于公司章程所定價(jià)額的,人民法院應(yīng)當(dāng)認(rèn)定出資人未依法全面履行出資義務(wù)。
Article 10 Where an investor makes capital contribution with housing, the land-use right or the intellectual property right for which registration of ownership is required, and has delivered them to the company for use without completing the procedures for change of ownership, and the company, other shareholders or a creditor of the company makes a claim requesting the people's court to determine that the investor has not fulfilled the capital contribution obligation, the people's court shall order the investor to complete the formalities for change of ownership within a reasonable period specified. If the investor completes such formalities within the aforesaid time period, the people's court shall determine that the investor has fulfilled his/her capital contribution obligation, and shall uphold the claim made by the investor that he/she is entitled to the corresponding shareholders' rights as of the time when he/she actually delivered the assets to the company for use.
Where an investor making capital contribution with an asset referred to in the preceding Paragraph has handled the formalities for change of ownership but failed to deliver the asset to the company for use, the people's court shall uphold the claim made by the company or other shareholders that the investor shall deliver the assets to the company, and that the investor is not entitled to the corresponding shareholders' rights prior to the actual delivery.
Where an investor making capital contribution with an asset referred to in the preceding Paragraph has handled the formalities for change of ownership but failed to deliver the asset to the company for use, the people's court shall uphold the claim made by the company or other shareholders that the investor shall deliver the assets to the company, and that the investor is not entitled to the corresponding shareholders' rights prior to the actual delivery.
第十條 出資人以房屋、土地使用權(quán)或者需要辦理權(quán)屬登記的知識(shí)產(chǎn)權(quán)等財(cái)產(chǎn)出資,已經(jīng)交付公司使用但未辦理權(quán)屬變更手續(xù),公司、其他股東或者公司債權(quán)人主張認(rèn)定出資人未履行出資義務(wù)的,人民法院應(yīng)當(dāng)責(zé)令當(dāng)事人在指定的合理期間內(nèi)辦理權(quán)屬變更手續(xù);在前述期間內(nèi)辦理了權(quán)屬變更手續(xù)的,人民法院應(yīng)當(dāng)認(rèn)定其已經(jīng)履行了出資義務(wù);出資人主張自其實(shí)際交付財(cái)產(chǎn)給公司使用時(shí)享有相應(yīng)股東權(quán)利的,人民法院應(yīng)予支持。
出資人以前款規(guī)定的財(cái)產(chǎn)出資,已經(jīng)辦理權(quán)屬變更手續(xù)但未交付給公司使用,公司或者其他股東主張其向公司交付、并在實(shí)際交付之前不享有相應(yīng)股東權(quán)利的,人民法院應(yīng)予支持。
Article 11 Where an investor makes capital contribution with the equities of another company, the people's court shall determine that the investor has fulfilled his/her capital contribution obligation as long as the following conditions are satisfied:
(1) The equities contributed are lawfully held by the investor and are transferable pursuant to the law;
(2) The equities contributed are free from defects and encumbrances;
(3) The investor has completed the statutory procedures for equity transfer; and
(4) The equities contributed have been valued pursuant to the law.
Where the company, other shareholders or a creditor of the company makes a claim requesting the people's court to determine that the investor has not fulfilled the capital contribution obligation on the ground that Items (1), (2) or (3) of the preceding Paragraph is not complied with, the people's court shall order the investor to take corrective measures within a reasonable time period specified so as to satisfy the above conditions. If the investor fails to make corrections within the prescribed time period, the people's court shall determine that the investor has failed to fully fulfill his/her contribution obligation pursuant to the law.
Where the company, other shareholders or a creditor of the company makes a claim requesting the people's court to determine that the investor has not fulfilled the capital contribution obligation on the ground that Item (4) of Paragraph 1 of this Article is not complied with, the people's court shall handle the case in accordance with Article 9 herein.
(1) The equities contributed are lawfully held by the investor and are transferable pursuant to the law;
(2) The equities contributed are free from defects and encumbrances;
(3) The investor has completed the statutory procedures for equity transfer; and
(4) The equities contributed have been valued pursuant to the law.
Where the company, other shareholders or a creditor of the company makes a claim requesting the people's court to determine that the investor has not fulfilled the capital contribution obligation on the ground that Items (1), (2) or (3) of the preceding Paragraph is not complied with, the people's court shall order the investor to take corrective measures within a reasonable time period specified so as to satisfy the above conditions. If the investor fails to make corrections within the prescribed time period, the people's court shall determine that the investor has failed to fully fulfill his/her contribution obligation pursuant to the law.
Where the company, other shareholders or a creditor of the company makes a claim requesting the people's court to determine that the investor has not fulfilled the capital contribution obligation on the ground that Item (4) of Paragraph 1 of this Article is not complied with, the people's court shall handle the case in accordance with Article 9 herein.
第十一條 出資人以其他公司股權(quán)出資,符合下列條件的,人民法院應(yīng)當(dāng)認(rèn)定出資人已履行出資義務(wù):
(一)出資的股權(quán)由出資人合法持有并依法可以轉(zhuǎn)讓;
(二)出資的股權(quán)無權(quán)利瑕疵或者權(quán)利負(fù)擔(dān);
(三)出資人已履行關(guān)于股權(quán)轉(zhuǎn)讓的法定手續(xù);
(四)出資的股權(quán)已依法進(jìn)行了價(jià)值評(píng)估。
股權(quán)出資不符合前款第(一)、(二)、(三)項(xiàng)的規(guī)定,公司、其他股東或者公司債權(quán)人請(qǐng)求認(rèn)定出資人未履行出資義務(wù)的,人民法院應(yīng)當(dāng)責(zé)令該出資人在指定的合理期間內(nèi)采取補(bǔ)正措施,以符合上述條件;逾期未補(bǔ)正的,人民法院應(yīng)當(dāng)認(rèn)定其未依法全面履行出資義務(wù)。
股權(quán)出資不符合本條第一款第(四)項(xiàng)的規(guī)定,公司、其他股東或者公司債權(quán)人請(qǐng)求認(rèn)定出資人未履行出資義務(wù)的,人民法院應(yīng)當(dāng)按照本規(guī)定第九條的規(guī)定處理。
Article 12 Where, after a company is incorporated, the company, a shareholder or a creditor of the company requests the people's court to determine that the shareholder concerned has withdrawn his/her capital contribution on the ground that the acts of the shareholder fall under any of the following circumstances and are detrimental to the interests of the company, the people's court shall uphold the claim:
(1) Where the shareholder first transfers the monetary contribution to the company's account for capital verification purpose, and then takes the contribution out;
(2) Where the shareholder transfers out his/her contribution by fabricating the creditor-debtor relationship;
(3) Where the shareholder distributes profits by making false financial and accounting statements to inflate profits;
(4) Where the shareholder transfers out his/her contribution by taking advantage of associated transactions; or
(5) Where the shareholder withdraws his/her contribution by any other means without going through statutory procedures.
(1) Where the shareholder first transfers the monetary contribution to the company's account for capital verification purpose, and then takes the contribution out;
(2) Where the shareholder transfers out his/her contribution by fabricating the creditor-debtor relationship;
(3) Where the shareholder distributes profits by making false financial and accounting statements to inflate profits;
(4) Where the shareholder transfers out his/her contribution by taking advantage of associated transactions; or
(5) Where the shareholder withdraws his/her contribution by any other means without going through statutory procedures.
第十二條 公司成立后,公司、股東或者公司債權(quán)人以相關(guān)股東的行為符合下列情形之一且損害公司權(quán)益為由,請(qǐng)求認(rèn)定該股東抽逃出資的,人民法院應(yīng)予支持:
(一)將出資款項(xiàng)轉(zhuǎn)入公司賬戶驗(yàn)資后又轉(zhuǎn)出;
(二)通過虛構(gòu)債權(quán)債務(wù)關(guān)系將其出資轉(zhuǎn)出;
(三)制作虛假財(cái)務(wù)會(huì)計(jì)報(bào)表虛增利潤(rùn)進(jìn)行分配;
(四)利用關(guān)聯(lián)交易將出資轉(zhuǎn)出;
(五)其他未經(jīng)法定程序?qū)⒊鲑Y抽回的行為。
Article 13 Where a shareholder fails to perform or fully perform his/her capital contribution obligation, the people's court shall uphold the claim made by the company or other shareholders requiring the shareholder to fully perform his/her capital contribution obligation towards the company as required by law.
The people's court shall uphold the claim made by a creditor of the company requiring the shareholder who has not fulfilled or fully fulfilled his/her capital contribution obligation to bear additional liabilities, to the extent of the principal and interest not contributed by him/her, for compensating the debts of the company that are unable to be repaid. The people's court shall not uphold the same claim made by other creditors if the said shareholder has assumed the aforesaid compensation liability.
In the event that a shareholder fails to fulfill or fully fulfill his/her capital contribution obligation in the incorporation process of the company, as a result of which a plaintiff who brings a lawsuit in accordance with Paragraphs 1 or 2 of this Article requests the people's court to determine the promoter of the company to be jointly and severally liable with the defendant shareholder, the people's court shall uphold the request. The promoter of the company may institute recourse against the defendant shareholder after having assumed the liabilities.
In the event that a shareholder fails to fulfill or fully fulfill his/her capital contribution obligation when the company increases its capital, as a result of which a plaintiff who brings a lawsuit in accordance with Paragraphs 1 or 2 of this Article requests the people's court to hold a director or senior management person liable on the ground that the failure of the director or senior management person to fully perform his/her obligation under Paragraph 1 of Article 148 of the Company Law leads to the insufficient capital contribution, the people's court shall uphold the request. The director or senior management person may institute recourse against the defendant shareholder after having assumed the liabilities.
The people's court shall uphold the claim made by a creditor of the company requiring the shareholder who has not fulfilled or fully fulfilled his/her capital contribution obligation to bear additional liabilities, to the extent of the principal and interest not contributed by him/her, for compensating the debts of the company that are unable to be repaid. The people's court shall not uphold the same claim made by other creditors if the said shareholder has assumed the aforesaid compensation liability.
In the event that a shareholder fails to fulfill or fully fulfill his/her capital contribution obligation in the incorporation process of the company, as a result of which a plaintiff who brings a lawsuit in accordance with Paragraphs 1 or 2 of this Article requests the people's court to determine the promoter of the company to be jointly and severally liable with the defendant shareholder, the people's court shall uphold the request. The promoter of the company may institute recourse against the defendant shareholder after having assumed the liabilities.
In the event that a shareholder fails to fulfill or fully fulfill his/her capital contribution obligation when the company increases its capital, as a result of which a plaintiff who brings a lawsuit in accordance with Paragraphs 1 or 2 of this Article requests the people's court to hold a director or senior management person liable on the ground that the failure of the director or senior management person to fully perform his/her obligation under Paragraph 1 of Article 148 of the Company Law leads to the insufficient capital contribution, the people's court shall uphold the request. The director or senior management person may institute recourse against the defendant shareholder after having assumed the liabilities.
第十三條 股東未履行或者未全面履行出資義務(wù),公司或者其他股東請(qǐng)求其向公司依法全面履行出資義務(wù)的,人民法院應(yīng)予支持。
公司債權(quán)人請(qǐng)求未履行或者未全面履行出資義務(wù)的股東在未出資本息范圍內(nèi)對(duì)公司債務(wù)不能清償?shù)牟糠殖袚?dān)補(bǔ)充賠償責(zé)任的,人民法院應(yīng)予支持;未履行或者未全面履行出資義務(wù)的股東已經(jīng)承擔(dān)上述責(zé)任,其他債權(quán)人提出相同請(qǐng)求的,人民法院不予支持。
股東在公司設(shè)立時(shí)未履行或者未全面履行出資義務(wù),依照本條第一款或者第二款提起訴訟的原告,請(qǐng)求公司的發(fā)起人與被告股東承擔(dān)連帶責(zé)任的,人民法院應(yīng)予支持;公司的發(fā)起人承擔(dān)責(zé)任后,可以向被告股東追償。
股東在公司增資時(shí)未履行或者未全面履行出資義務(wù),依照本條第一款或者第二款提起訴訟的原告,請(qǐng)求未盡公司法第一百四十八條第一款規(guī)定的義務(wù)而使出資未繳足的董事、高級(jí)管理人員承擔(dān)相應(yīng)責(zé)任的,人民法院應(yīng)予支持;董事、高級(jí)管理人員承擔(dān)責(zé)任后,可以向被告股東追償。
Article 14 Where a shareholder withdraws his/her capital contribution, the people's court shall uphold the claim made by the company or other shareholders that the shareholder shall return to the company the principal and interest of the contribution, and that other shareholders, directors, senior management personnel or the actual controller who renders assistance in the withdrawal shall be jointly and severally liable.
The people's court shall uphold the claim made by a creditor of the company requiring that the shareholder who has withdrawn his/her capital contribution be additionally liable, to the extent of the principal and interest of the contribution withdrawn, for compensating the debts of the company that are unable to be repaid, and that other shareholders, directors, senior management personnel or the actual controller who renders assistance in the withdrawal be jointly and severally liable therefor. The people's court shall not uphold the same claim made by other creditors if the shareholder who withdraws the contribution has assumed the aforesaid liability.
The people's court shall uphold the claim made by a creditor of the company requiring that the shareholder who has withdrawn his/her capital contribution be additionally liable, to the extent of the principal and interest of the contribution withdrawn, for compensating the debts of the company that are unable to be repaid, and that other shareholders, directors, senior management personnel or the actual controller who renders assistance in the withdrawal be jointly and severally liable therefor. The people's court shall not uphold the same claim made by other creditors if the shareholder who withdraws the contribution has assumed the aforesaid liability.
第十四條 股東抽逃出資,公司或者其他股東請(qǐng)求其向公司返還出資本息、協(xié)助抽逃出資的其他股東、董事、高級(jí)管理人員或者實(shí)際控制人對(duì)此承擔(dān)連帶責(zé)任的,人民法院應(yīng)予支持。
公司債權(quán)人請(qǐng)求抽逃出資的股東在抽逃出資本息范圍內(nèi)對(duì)公司債務(wù)不能清償?shù)牟糠殖袚?dān)補(bǔ)充賠償責(zé)任、協(xié)助抽逃出資的其他股東、董事、高級(jí)管理人員或者實(shí)際控制人對(duì)此承擔(dān)連帶責(zé)任的,人民法院應(yīng)予支持;抽逃出資的股東已經(jīng)承擔(dān)上述責(zé)任,其他債權(quán)人提出相同請(qǐng)求的,人民法院不予支持。
Article 15 Where a third party has lent money to the promoter to assist him/her establish a company and the two parties have expressly agreed that the promoter will withdraw the contribution to repay the third party after capital verification or incorporation of the company, while the promoter has withdrawn the contribution as agreed to repay the third party but fails to make good the contribution to the company, therefore the relevant right owner requests the third party to be jointly and severally liable for the liabilities arising out of the withdrawal of contribution by the promoter, the people's court shall uphold such a request.
第十五條 第三人代墊資金協(xié)助發(fā)起人設(shè)立公司,雙方明確約定在公司驗(yàn)資后或者在公司成立后將該發(fā)起人的出資抽回以償還該第三人,發(fā)起人依照前述約定抽回出資償還第三人后又不能補(bǔ)足出資,相關(guān)權(quán)利人請(qǐng)求第三人連帶承擔(dān)發(fā)起人因抽回出資而產(chǎn)生的相應(yīng)責(zé)任的,人民法院應(yīng)予支持。
Article 16 Unless otherwise agreed upon by the parties concerned, the people's court shall not uphold a claim made by a company, other shareholders or a creditor of the company requesting an investor to make good the capital contribution on the ground that the non-monetary assets that meet the statutory requirements and are made as contribution have depreciated due to changes in the market or other objective factors.
第十六條 出資人以符合法定條件的非貨幣財(cái)產(chǎn)出資后,因市場(chǎng)變化或者其他客觀因素導(dǎo)致出資財(cái)產(chǎn)貶值,公司、其他股東或者公司債權(quán)人請(qǐng)求該出資人承擔(dān)補(bǔ)足出資責(zé)任的,人民法院不予支持。但是,當(dāng)事人另有約定的除外。
Article 17 Where, due to the failure to perform or fully perform his/her capital contribution obligation or the withdrawal of his/her contribution by a shareholder, the company, pursuant to its articles of association or the resolution of its shareholders' meeting, imposes appropriate and reasonable restrictions on the shareholder's right to request for profit distribution, the preemptive right of new share subscription, the right to request for distribution of remaining property, etc., the people's court shall not uphold the claim made by the shareholder requesting the court to determine the restrictions as invalid.
第十七條 股東未履行或者未全面履行出資義務(wù)或者抽逃出資,公司根據(jù)公司章程或者股東會(huì)決議對(duì)其利潤(rùn)分配請(qǐng)求權(quán)、新股優(yōu)先認(rèn)購(gòu)權(quán)、剩余財(cái)產(chǎn)分配請(qǐng)求權(quán)等股東權(quán)利作出相應(yīng)的合理限制,該股東請(qǐng)求認(rèn)定該限制無效的,人民法院不予支持。
Article 18 Where a shareholder of a limited liability company fails to perform his/her capital contribution obligation or withdraws all the contribution made, and still fails to make or return the contribution within a reasonable time period despite being so urged by the company, as a result of which the company disqualifies the shareholder pursuant to the resolution of the shareholders' meeting, the people's court shall not uphold the claim made by the shareholder requesting the court to determine the disqualification as invalid.
Under the circumstance described in the preceding Paragraph, the people's court shall specify in the judgment that the company shall promptly undergo the statutory capital reduction procedures or have other shareholders or a third party to pay the appropriate contribution. Before the company undergoes the statutory capital reduction procedures or has other shareholders or a third party to pay the appropriate contribution, if a creditor of the company requests relevant parties to bear corresponding liabilities in accordance with Article 13 or Article 14 herein, the people's court shall uphold such a request.
Under the circumstance described in the preceding Paragraph, the people's court shall specify in the judgment that the company shall promptly undergo the statutory capital reduction procedures or have other shareholders or a third party to pay the appropriate contribution. Before the company undergoes the statutory capital reduction procedures or has other shareholders or a third party to pay the appropriate contribution, if a creditor of the company requests relevant parties to bear corresponding liabilities in accordance with Article 13 or Article 14 herein, the people's court shall uphold such a request.
第十八條 有限責(zé)任公司的股東未履行出資義務(wù)或者抽逃全部出資,經(jīng)公司催告繳納或者返還,其在合理期間內(nèi)仍未繳納或者返還出資,公司以股東會(huì)決議解除該股東的股東資格,該股東請(qǐng)求確認(rèn)該解除行為無效的,人民法院不予支持。
在前款規(guī)定的情形下,人民法院在判決時(shí)應(yīng)當(dāng)釋明,公司應(yīng)當(dāng)及時(shí)辦理法定減資程序或者由其他股東或者第三人繳納相應(yīng)的出資。在辦理法定減資程序或者其他股東或者第三人繳納相應(yīng)的出資之前,公司債權(quán)人依照本規(guī)定第十三條或者第十四條請(qǐng)求相關(guān)當(dāng)事人承擔(dān)相應(yīng)責(zé)任的,人民法院應(yīng)予支持。
Article 19 Where a shareholder of a limited liability company transfers his/her equities despite non-performance or partial performance of his/her capital contribution obligation, of which the transferee has or should have knowledge, the people's court shall uphold the claim made by the company requesting that the shareholder shall fulfill his/her capital contribution obligation and that the transferee shall be jointly and severally liable therefor. Where a creditor of the company brings a lawsuit against the shareholder in accordance with Paragraph 2 of Article 13, the people's court shall uphold the claim requesting the aforesaid transferee to be jointly and severally liable therefor.
Unless otherwise agreed upon by the parties concerned, after the transferee has assumed the liabilities under the preceding Paragraph, the people' court shall uphold the claim by the transferee for recourse against the shareholder who fails to perform or fully perform his/her capital contribution obligation.
Unless otherwise agreed upon by the parties concerned, after the transferee has assumed the liabilities under the preceding Paragraph, the people' court shall uphold the claim by the transferee for recourse against the shareholder who fails to perform or fully perform his/her capital contribution obligation.
第十九條 有限責(zé)任公司的股東未履行或者未全面履行出資義務(wù)即轉(zhuǎn)讓股權(quán),受讓人對(duì)此知道或者應(yīng)當(dāng)知道,公司請(qǐng)求該股東履行出資義務(wù)、受讓人對(duì)此承擔(dān)連帶責(zé)任的,人民法院應(yīng)予支持;公司債權(quán)人依照本規(guī)定第十三條第二款向該股東提起訴訟,同時(shí)請(qǐng)求前述受讓人對(duì)此承擔(dān)連帶責(zé)任的,人民法院應(yīng)予支持。
受讓人根據(jù)前款規(guī)定承擔(dān)責(zé)任后,向該未履行或者未全面履行出資義務(wù)的股東追償?shù)?人民法院應(yīng)予支持。但是,當(dāng)事人另有約定的除外。
Article 20 Where a shareholder of a company fails to perform or fully perform his/her capital contribution obligation or withdraws his/her contribution, and the company or other shareholders request the shareholder to make or return full contribution to the company, the people's court shall not uphold the defense made by the shareholder on the ground of limitation.
Where within the limitation of action for his/her creditor's right, a creditor of the company, in accordance with Paragraph 2 of Article 13 or Paragraph 2 of Article 14 herein, requests the shareholder who fails to perform or fully perform his/her capital contribution obligation or withdraws his/her contribution to bear the liability for compensation, the people's court shall not uphold the defense made by the defendant shareholder on the ground that the limitation of action for making or returning the contribution has lapsed.
Where within the limitation of action for his/her creditor's right, a creditor of the company, in accordance with Paragraph 2 of Article 13 or Paragraph 2 of Article 14 herein, requests the shareholder who fails to perform or fully perform his/her capital contribution obligation or withdraws his/her contribution to bear the liability for compensation, the people's court shall not uphold the defense made by the defendant shareholder on the ground that the limitation of action for making or returning the contribution has lapsed.
第二十條 公司股東未履行或者未全面履行出資義務(wù)或者抽逃出資,公司或者其他股東請(qǐng)求其向公司全面履行出資義務(wù)或者返還出資,被告股東以訴訟時(shí)效為由進(jìn)行抗辯的,人民法院不予支持。
公司債權(quán)人的債權(quán)未過訴訟時(shí)效期間,其依照本規(guī)定第十三條第二款、第十四條第二款的規(guī)定請(qǐng)求未履行或者未全面履行出資義務(wù)或者抽逃出資的股東承擔(dān)賠償責(zé)任,被告股東以出資義務(wù)或者返還出資義務(wù)超過訴訟時(shí)效期間為由進(jìn)行抗辯的,人民法院不予支持。
Article 22 A party that brings a lawsuit to the people's court for affirming his/her shareholder qualification shall list the company as the defendant. Parties with an interest in the disputed equities shall attend the proceedings as third parties.
第二十二條 當(dāng)事人向人民法院起訴請(qǐng)求確認(rèn)其股東資格的,應(yīng)當(dāng)以公司為被告,與案件爭(zhēng)議股權(quán)有利害關(guān)系的人作為第三人參加訴訟。
Article 23 Where the parties concerned dispute over the ownership of certain equities, the party requesting the people's court to affirm his/her ownership of the equities shall prove any of the following facts:
(1) That he/she has made, or subscribed to the contribution to the company, and the contribution or subscription is not in violation of the mandatory provisions of laws and regulations; or
(2) That he/she has succeeded to the equities of the company as a transferee or in other forms, and the succession is not in violation of the mandatory provisions of laws and regulations.
(1) That he/she has made, or subscribed to the contribution to the company, and the contribution or subscription is not in violation of the mandatory provisions of laws and regulations; or
(2) That he/she has succeeded to the equities of the company as a transferee or in other forms, and the succession is not in violation of the mandatory provisions of laws and regulations.
第二十三條 當(dāng)事人之間對(duì)股權(quán)歸屬發(fā)生爭(zhēng)議,一方請(qǐng)求人民法院確認(rèn)其享有股權(quán)的,應(yīng)當(dāng)證明以下事實(shí)之一:
(一)已經(jīng)依法向公司出資或者認(rèn)繳出資,且不違反法律法規(guī)強(qiáng)制性規(guī)定;
(二)已經(jīng)受讓或者以其他形式繼受公司股權(quán),且不違反法律法規(guī)強(qiáng)制性規(guī)定。
Article 24 Where, after a party concerned has performed his/her capital contribution obligation or succeeded to the equities in accordance with the law, the company fails to issue thereto the capital contribution certificate, register the party as a shareholder in the register of shareholders or register the party with the relevant company registration authority in accordance with Article 32 or Article 33 of the Company Law, the people's court shall uphold the claim made by the party requesting the company to fulfill the said obligations.
第二十四條 當(dāng)事人依法履行出資義務(wù)或者依法繼受取得股權(quán)后,公司未根據(jù)公司法第三十二條、第三十三條的規(guī)定簽發(fā)出資證明書、記載于股東名冊(cè)并辦理公司登記機(jī)關(guān)登記,當(dāng)事人請(qǐng)求公司履行上述義務(wù)的,人民法院應(yīng)予支持。
Article 25 Where the actual investor of a limited liability company has concluded a contract with the nominee investor specifying that the actual investor shall make the contribution and therefore acquire the investment equities and that the nominee investor shall be registered as the nominee shareholder, and the actual investor and the nominee shareholder now dispute over the validity of the contract, the people's court shall determine the contract as valid as long as no circumstance prescribed by Article 52 of the Contract Law exists.
In the event that the actual investor referred to in the preceding Paragraph has disputes with the nominee shareholder over the ownership of investment equities, the people's court shall uphold the claim against the nominee shareholder made by the actual investor on the ground that he/she has performed the actual capital contribution obligation. The people's court shall not uphold the defense made by the nominee shareholder denying the rights of the actual investor by replying on the record of the register of shareholders or the registration with the relevant company registration authority.
The people's court shall not uphold the claim made by the actual investor, without the consent of more than half of all other shareholders of the company, requesting the company to change its shareholders, issue the capital contribution certificate, record him/her in the register of shareholders, record him/her in the company's articles of association, and to register with the company registration authority concerned.
In the event that the actual investor referred to in the preceding Paragraph has disputes with the nominee shareholder over the ownership of investment equities, the people's court shall uphold the claim against the nominee shareholder made by the actual investor on the ground that he/she has performed the actual capital contribution obligation. The people's court shall not uphold the defense made by the nominee shareholder denying the rights of the actual investor by replying on the record of the register of shareholders or the registration with the relevant company registration authority.
The people's court shall not uphold the claim made by the actual investor, without the consent of more than half of all other shareholders of the company, requesting the company to change its shareholders, issue the capital contribution certificate, record him/her in the register of shareholders, record him/her in the company's articles of association, and to register with the company registration authority concerned.
第二十五條 有限責(zé)任公司的實(shí)際出資人與名義出資人訂立合同,約定由實(shí)際出資人出資并享有投資權(quán)益,以名義出資人為名義股東,實(shí)際出資人與名義股東對(duì)該合同效力發(fā)生爭(zhēng)議的,如無合同法第五十二條規(guī)定的情形,人民法院應(yīng)當(dāng)認(rèn)定該合同有效。
前款規(guī)定的實(shí)際出資人與名義股東因投資權(quán)益的歸屬發(fā)生爭(zhēng)議,實(shí)際出資人以其實(shí)際履行了出資義務(wù)為由向名義股東主張權(quán)利的,人民法院應(yīng)予支持。名義股東以公司股東名冊(cè)記載、公司登記機(jī)關(guān)登記為由否認(rèn)實(shí)際出資人權(quán)利的,人民法院不予支持。
實(shí)際出資人未經(jīng)公司其他股東半數(shù)以上同意,請(qǐng)求公司變更股東、簽發(fā)出資證明書、記載于股東名冊(cè)、記載于公司章程并辦理公司登記機(jī)關(guān)登記的,人民法院不予支持。
Article 26 Where a nominee shareholder transfers, pledges or otherwise disposes of the equities registered under his/her name, and the actual investor, on the ground that he/she has the actual entitlement to the equities, requests the people's court to determine the equity disposal as invalid, the people's court may handle the case with reference to Article 106 the Property Law.
If the actual investor suffers losses because of the equity disposal by the nominee shareholder, the people's court shall uphold the claim made by the actual investor requesting the nominee shareholder to bear the liability for compensation.
If the actual investor suffers losses because of the equity disposal by the nominee shareholder, the people's court shall uphold the claim made by the actual investor requesting the nominee shareholder to bear the liability for compensation.
第二十六條 名義股東將登記于其名下的股權(quán)轉(zhuǎn)讓、質(zhì)押或者以其他方式處分,實(shí)際出資人以其對(duì)于股權(quán)享有實(shí)際權(quán)利為由,請(qǐng)求認(rèn)定處分股權(quán)行為無效的,人民法院可以參照物權(quán)法第一百零六條的規(guī)定處理。
名義股東處分股權(quán)造成實(shí)際出資人損失,實(shí)際出資人請(qǐng)求名義股東承擔(dān)賠償責(zé)任的,人民法院應(yīng)予支持。
Article 27 Where a creditor of a company, on the ground that a shareholder registered with the relevant company registration authority fails to perform his/her capital contribution obligation, requests the people's court to order the shareholder to be additionally liable, to the extent of the principal and interest not contributed, for compensating the debts of the company that are unable to be repaid, the people's court shall not uphold the defense made by the shareholder that he/she is only a nominee shareholder rather than an actual investor.
The people's court shall uphold the claim for recourse against the actual investor made by the nominee shareholder who has paid the compensation in accordance with the preceding Paragraph.
The people's court shall uphold the claim for recourse against the actual investor made by the nominee shareholder who has paid the compensation in accordance with the preceding Paragraph.
第二十七條 公司債權(quán)人以登記于公司登記機(jī)關(guān)的股東未履行出資義務(wù)為由,請(qǐng)求其對(duì)公司債務(wù)不能清償?shù)牟糠衷谖闯鲑Y本息范圍內(nèi)承擔(dān)補(bǔ)充賠償責(zé)任,股東以其僅為名義股東而非實(shí)際出資人為由進(jìn)行抗辯的,人民法院不予支持。
名義股東根據(jù)前款規(guī)定承擔(dān)賠償責(zé)任后,向?qū)嶋H出資人追償?shù)?人民法院應(yīng)予支持。
Article 28 Where, after equity transfer but before registration of changes with the relevant company registration authority, the original shareholder transfers, pledges or otherwise disposes of the equities still registered thereunder, and the transferee shareholder requests the people's court to determine the disposal as invalid on the ground that he/she has the actual entitlement to the equities, the people's court may handle the case with reference to Article 106 of the Property Law.
If the transferee shareholder suffers losses because of the equity disposal by the original shareholder, and therefore requests the people's court to order the original shareholder to bear the liability for compensation and the director, senior management person or the actual controller who is at fault for the delayed registration of changes to bear corresponding liabilities, the people's court shall uphold the request. In the event that the transferee shareholder him/herself is also at fault for the delayed registration, the people's court may appropriately consider mitigating punishments against the said director, senior management person or the actual controller.
If the transferee shareholder suffers losses because of the equity disposal by the original shareholder, and therefore requests the people's court to order the original shareholder to bear the liability for compensation and the director, senior management person or the actual controller who is at fault for the delayed registration of changes to bear corresponding liabilities, the people's court shall uphold the request. In the event that the transferee shareholder him/herself is also at fault for the delayed registration, the people's court may appropriately consider mitigating punishments against the said director, senior management person or the actual controller.
第二十八條 股權(quán)轉(zhuǎn)讓后尚未向公司登記機(jī)關(guān)辦理變更登記,原股東將仍登記于其名下的股權(quán)轉(zhuǎn)讓、質(zhì)押或者以其他方式處分,受讓股東以其對(duì)于股權(quán)享有實(shí)際權(quán)利為由,請(qǐng)求認(rèn)定處分股權(quán)行為無效的,人民法院可以參照物權(quán)法第一百零六條的規(guī)定處理。
原股東處分股權(quán)造成受讓股東損失,受讓股東請(qǐng)求原股東承擔(dān)賠償責(zé)任、對(duì)于未及時(shí)辦理變更登記有過錯(cuò)的董事、高級(jí)管理人員或者實(shí)際控制人承擔(dān)相應(yīng)責(zé)任的,人民法院應(yīng)予支持;受讓股東對(duì)于未及時(shí)辦理變更登記也有過錯(cuò)的,可以適當(dāng)減輕上述董事、高級(jí)管理人員或者實(shí)際控制人的責(zé)任。
Article 29 If a person fraudulently uses the name of another person to make contribution and registers this other person as a shareholder with a company registration authority, the first-mentioned person shall bear the corresponding liabilities. The people's court shall not uphold the claim made by the company, other shareholders or a creditor of the company requesting the person whose name is fraudulently used by the personator for registration as a shareholder to make good the contribution or be liable for compensating the debts of the company that are unable to be repaid on the ground that he/she has failed to perform the capital contribution obligation.
第二十九條 冒用他人名義出資并將該他人作為股東在公司登記機(jī)關(guān)登記的,冒名登記行為人應(yīng)當(dāng)承擔(dān)相應(yīng)責(zé)任;公司、其他股東或者公司債權(quán)人以未履行出資義務(wù)為由,請(qǐng)求被冒名登記為股東的承擔(dān)補(bǔ)足出資責(zé)任或者對(duì)公司債務(wù)不能清償部分的賠償責(zé)任的,人民法院不予支持。