Author: Lawyer Zhou Jun
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With the formal implementation of the new Company Law on July 1, 2024, shareholders' investment obligations in the establishment and operation of the company will be further clarified and strengthened.
The new "Company Law" has made important adjustments in the aspect of shareholders' responsibility for capital contributions, and has stipulated stricter legal consequences for shareholders' failure to pay their capital contributions on time.
Those who fail to pay their capital contributions on time may face the following legal consequences:
1. Liability for compensation to the company
According to the provisions of the third paragraph of Article 49 of the new Company Law, if a shareholder fails to pay his capital contribution in full on time, he shall not only pay the company in full, but also be liable for compensation for the losses caused to the company. This means that shareholders not only need to make up the unpaid capital contributions, but also need to compensate for the losses caused to the company due to the failure to make capital contributions on time.
In addition, Article 13 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 shareholder fails to pay the capital contribution when due, the company may require the shareholder to pay in full and claim the shareholder to compensate for the losses caused to the company.
2. Assume supplementary compensation liability for the company's debts
Article 54 of the new Company Law stipulates that if the company is unable to pay off its debts as they fall due, the company or its creditors with creditor's rights as they fall due have the right to require shareholders who have subscribed for the capital contribution but have not yet reached the deadline to make it in advance.
The second paragraph of Article 13 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) stipulates: "If the creditors of the company request the shareholders who fail to perform or fully perform the obligation of capital contribution to assume supplementary compensation liability for the part of the company's debts that cannot be repaid within the scope of the principal and interest of the capital contribution, the people's court shall support it; The people's court will not support the same request made by other creditors when the shareholders who have not fulfilled or have not fully fulfilled their obligation to make capital contributions have assumed the above responsibilities. " According to the provisions of this article, if a shareholder fails to pay the amount of capital contribution when due, he shall be liable for supplementary compensation for the part of the company's debts that cannot be repaid within the scope of the principal and interest of the unpaid amount of capital contribution.
Therefore, after the implementation of the new Company Law, if the company is unable to pay off its due debts, the creditors have the right to require the shareholders who have not fulfilled their obligations to make capital contributions to bear the supplementary liability for compensation, and also have the right to require the shareholders who have subscribed for capital contributions but have not yet reached the deadline to make capital contributions to make capital contributions in advance.
3. Risk of loss of equity
Article 51 of the new Company Law stipulates that after the establishment of a limited liability company, the board of directors shall check the capital contribution of shareholders. If it is found that a shareholder fails to pay the capital contribution as stipulated in the articles of association on time and in full, the company shall send a written letter of call to the shareholder to urge him to make the capital contribution.
Article 52 stipulates that if a shareholder fails to pay his capital contribution on the date specified in the articles of association and the company issues a written letter of call for capital contribution in accordance with the first paragraph of the preceding article, the grace period for capital contribution may be specified; The grace period shall not be less than 60 days from the date when the company issues the call letter. When the grace period expires, if a shareholder still fails to perform his/her obligation of capital contribution, the Company may, upon resolution of the Board of Directors, send a notice of loss of rights to the shareholder, which shall be in writing. As of the date when the notice is sent, the shareholder will lose the equity of his unpaid capital contribution.
Accordingly, after the establishment of the Company, the Board of Directors checked the contribution of shareholders and found that shareholders failed to pay their capital contributions on time.
If the capital contribution is still not paid on time after the call letter and the grace period expires, the company can send a notice of loss of rights to the shareholder through the resolution of the board of directors, and the shareholder will also lose the equity of its unpaid capital contribution from the date of sending the notice.
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