(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第1504次會議通過）
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《中華人民共和國公司法》，結合審判實踐，就人民法院審理公司設立、出資、股權確認等糾紛案件適用法律問題作出如下規定。
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 為設立公司而簽署公司章程、向公司認購出資或者股份并履行公司設立職責的人,應當認定為公司的發起人,包括有限責任公司設立時的股東。
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 發起人為設立公司以自己名義對外簽訂合同,合同相對人請求該發起人承擔合同責任的,人民法院應予支持。
公司成立后對前款規定的合同予以確認,或者已經實際享有合同權利或者履行合同義務,合同相對人請求公司承擔合同責任的,人民法院應予支持。
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 發起人以設立中公司名義對外簽訂合同,公司成立后合同相對人請求公司承擔合同責任的,人民法院應予支持。
公司成立后有證據證明發起人利用設立中公司的名義為自己的利益與相對人簽訂合同,公司以此為由主張不承擔合同責任的,人民法院應予支持,但相對人為善意的除外。
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,債權人請求全體或者部分發起人對設立公司行為所產生的費用和債務承擔連帶清償責任的,人民法院應予支持。
部分發起人依照前款規定承擔責任后,請求其他發起人分擔的,人民法院應當判令其他發起人按照約定的責任承擔比例分擔責任;沒有約定責任承擔比例的,按照約定的出資比例分擔責任;沒有約定出資比例的,按照均等份額分擔責任。
因部分發起人的過錯導致公司未成立,其他發起人主張其承擔設立行為所產生的費用和債務的,人民法院應當根據過錯情況,確定過錯一方的責任范圍。
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 發起人因履行公司設立職責造成他人損害,公司成立后受害人請求公司承擔侵權賠償責任的,人民法院應予支持;公司未成立,受害人請求全體發起人承擔連帶賠償責任的,人民法院應予支持。
公司或者無過錯的發起人承擔賠償責任后,可以向有過錯的發起人追償。
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 股份有限公司的認股人未按期繳納所認股份的股款,經公司發起人催繳后在合理期間內仍未繳納,公司發起人對該股份另行募集的,人民法院應當認定該募集行為有效。認股人延期繳納股款給公司造成損失,公司請求該認股人承擔賠償責任的,人民法院應予支持。
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的財產出資,當事人之間對于出資行為效力產生爭議的,人民法院可以參照物權法第一百零六條的規定予以認定。
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的,對違法犯罪行為予以追究、處罰時,應當采取拍賣或者變賣的方式處置其股權。
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出資,或者以設定權利負擔的土地使用權出資,公司、其他股東或者公司債權人主張認定出資人未履行出資義務的,人民法院應當責令當事人在指定的合理期間內辦理土地變更手續或者解除權利負擔;逾期未辦理或者未解除的,人民法院應當認定出資人未依法全面履行出資義務。
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 出資人以非貨幣財產出資,未依法評估作價,公司、其他股東或者公司債權人請求認定出資人未履行出資義務的,人民法院應當委托具有合法資格的評估機構對該財產評估作價。評估確定的價額顯著低于公司章程所定價額的,人民法院應當認定出資人未依法全面履行出資義務。
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、土地使用權或者需要辦理權屬登記的知識產權等財產出資,已經交付公司使用但未辦理權屬變更手續,公司、其他股東或者公司債權人主張認定出資人未履行出資義務的,人民法院應當責令當事人在指定的合理期間內辦理權屬變更手續;在前述期間內辦理了權屬變更手續的,人民法院應當認定其已經履行了出資義務;出資人主張自其實際交付財產給公司使用時享有相應股東權利的,人民法院應予支持。
出資人以前款規定的財產出資,已經辦理權屬變更手續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、并在實際交付之前不享有相應股東權利的,人民法院應予支持。
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出資,符合下列條件的,人民法院應當認定出資人已履行出資義務:
(一)出資的股權由出資人合法持有并依法可以轉讓;
(二)出資的股權無權利瑕疵或者權利負擔;
(三)出資人已履行關于股權轉讓的法定手續;
(四)出資的股權已依法進行了價值評估。
股權出資不符合前款第(一)、(二)、(三)項的規定,公司、其他股東或者公司債權人請求認定出資人未履行出資義務的,人民法院應當責令該出資人在指定的合理期間內采取補正措施,以符合上述條件;逾期未補正的,人民法院應當認定其未依法全面履行出資義務。
股權出資不符合本條第一款第(四)項的規定,公司、其他股東或者公司債權人請求認定出資人未履行出資義務的,人民法院應當按照本規定第九條的規定處理。
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、股東或者公司債權人以相關股東的行為符合下列情形之一且損害公司權益為由,請求認定該股東抽逃出資的,人民法院應予支持:
(一)將出資款項轉入公司賬戶驗資后又轉出;
(二)通過虛構債權債務關系將其出資轉出;
(三)制作虛假財務會計報表虛增利潤進行分配;
(四)利用關聯交易將出資轉出;
(五)其他未經法定程序將出資抽回的行為。
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,公司或者其他股東請求其向公司依法全面履行出資義務的,人民法院應予支持。
公司債權人請求未履行或者未全面履行出資義務的股東在未出資本息范圍內對公司債務不能清償的部分承擔補充賠償責任的,人民法院應予支持;未履行或者未全面履行出資義務的股東已經承擔上述責任,其他債權人提出相同請求的,人民法院不予支持。
股東在公司設立時未履行或者未全面履行出資義務,依照本條第一款或者第二款提起訴訟的原告,請求公司的發起人與被告股東承擔連帶責任的,人民法院應予支持;公司的發起人承擔責任后,可以向被告股東追償。
股東在公司增資時未履行或者未全面履行出資義務,依照本條第一款或者第二款提起訴訟的原告,請求未盡公司法第一百四十八條第一款規定的義務而使出資未繳足的董事、高級管理人員承擔相應責任的,人民法院應予支持;董事、高級管理人員承擔責任后,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求其向公司返還出資本息、協助抽逃出資的其他股東、董事、高級管理人員或者實際控制人對此承擔連帶責任的,人民法院應予支持。
公司債權人請求抽逃出資的股東在抽逃出資本息范圍內對公司債務不能清償的部分承擔補充賠償責任、協助抽逃出資的其他股東、董事、高級管理人員或者實際控制人對此承擔連帶責任的,人民法院應予支持;抽逃出資的股東已經承擔上述責任,其他債權人提出相同請求的,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 第三人代墊資金協助發起人設立公司,雙方明確約定在公司驗資后或者在公司成立后將該發起人的出資抽回以償還該第三人,發起人依照前述約定抽回出資償還第三人后又不能補足出資,相關權利人請求第三人連帶承擔發起人因抽回出資而產生的相應責任的,人民法院應予支持。
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產出資后,因市場變化或者其他客觀因素導致出資財產貶值,公司、其他股東或者公司債權人請求該出資人承擔補足出資責任的,人民法院不予支持。但是,當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或者抽逃出資,公司根據公司章程或者股東會決議對其利潤分配請求權、新股優先認購權、剩余財產分配請求權等股東權利作出相應的合理限制,該股東請求認定該限制無效的,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 有限責任公司的股東未履行出資義務或者抽逃全部出資,經公司催告繳納或者返還,其在合理期間內仍未繳納或者返還出資,公司以股東會決議解除該股東的股東資格,該股東請求確認該解除行為無效的,人民法院不予支持。
在前款規定的情形下,人民法院在判決時應當釋明,公司應當及時辦理法定減資程序或者由其他股東或者第三人繳納相應的出資。在辦理法定減資程序或者其他股東或者第三人繳納相應的出資之前,公司債權人依照本規定第十三條或者第十四條請求相關當事人承擔相應責任的,人民法院應予支持。
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 有限責任公司的股東未履行或者未全面履行出資義務即轉讓股權,受讓人對此知道或者應當知道,公司請求該股東履行出資義務、受讓人對此承擔連帶責任的,人民法院應予支持;公司債權人依照本規定第十三條第二款向該股東提起訴訟,同時請求前述受讓人對此承擔連帶責任的,人民法院應予支持。
受讓人根據前款規定承擔責任后,向該未履行或者未全面履行出資義務的股東追償的,人民法院應予支持。但是,當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或者抽逃出資,公司或者其他股東請求其向公司全面履行出資義務或者返還出資,被告股東以訴訟時效為由進行抗辯的,人民法院不予支持。
公司債權人的債權未過訴訟時效期間,其依照本規定第十三條第二款、第十四條第二款的規定請求未履行或者未全面履行出資義務或者抽逃出資的股東承擔賠償責任,被告股東以出資義務或者返還出資義務超過訴訟時效期間為由進行抗辯的,人民法院不予支持。
Article 21 In the event that the parties concerned dispute over whether the capital contribution obligation has been fulfilled, if the plaintiff furnishes evidence substantiating his/her reasonable doubt over the fulfillment of the capital contribution obligation by the shareholder, the defendant shareholder shall bear the burden of proof to prove that he/she has fulfilled the obligation.
第二十一條 當事人之間對是否已履行出資義務發生爭議,原告提供對股東履行出資義務產生合理懷疑證據的,被告股東應當就其已履行出資義務承擔舉證責任。
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 當事人向人民法院起訴請求確認其股東資格的,應當以公司為被告,與案件爭議股權有利害關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 當事人之間對股權歸屬發生爭議,一方請求人民法院確認其享有股權的,應當證明以下事實之一:
(一)已經依法向公司出資或者認繳出資,且不違反法律法規強制性規定;
(二)已經受讓或者以其他形式繼受公司股權,且不違反法律法規強制性規定。
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 當事人依法履行出資義務或者依法繼受取得股權后,公司未根據公司法第三十二條、第三十三條的規定簽發出資證明書、記載于股東名冊并辦理公司登記機關登記,當事人請求公司履行上述義務的,人民法院應予支持。
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 有限責任公司的實際出資人與名義出資人訂立合同,約定由實際出資人出資并享有投資權益,以名義出資人為名義股東,實際出資人與名義股東對該合同效力發生爭議的,如無合同法第五十二條規定的情形,人民法院應當認定該合同有效。
前款規定的實際出資人與名義股東因投資權益的歸屬發生爭議,實際出資人以其實際履行了出資義務為由向名義股東主張權利的,人民法院應予支持。名義股東以公司股東名冊記載、公司登記機關登記為由否認實際出資人權利的,人民法院不予支持。
實際出資人未經公司其他股東半數以上同意,請求公司變更股東、簽發出資證明書、記載于股東名冊、記載于公司章程并辦理公司登記機關登記的,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轉讓、質押或者以其他方式處分,實際出資人以其對于股權享有實際權利為由,請求認定處分股權行為無效的,人民法院可以參照物權法第一百零六條的規定處理。
名義股東處分股權造成實際出資人損失,實際出資人請求名義股東承擔賠償責任的,人民法院應予支持。
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 公司債權人以登記于公司登記機關的股東未履行出資義務為由,請求其對公司債務不能清償的部分在未出資本息范圍內承擔補充賠償責任,股東以其僅為名義股東而非實際出資人為由進行抗辯的,人民法院不予支持。
名義股東根據前款規定承擔賠償責任后,向實際出資人追償的,人民法院應予支持。
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 股權轉讓后尚未向公司登記機關辦理變更登記,原股東將仍登記于其名下的股權轉讓、質押或者以其他方式處分,受讓股東以其對于股權享有實際權利為由,請求認定處分股權行為無效的,人民法院可以參照物權法第一百零六條的規定處理。
原股東處分股權造成受讓股東損失,受讓股東請求原股東承擔賠償責任、對于未及時辦理變更登記有過錯的董事、高級管理人員或者實際控制人承擔相應責任的,人民法院應予支持;受讓股東對于未及時辦理變更登記也有過錯的,可以適當減輕上述董事、高級管理人員或者實際控制人的責任。
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關登記的,冒名登記行為人應當承擔相應責任;公司、其他股東或者公司債權人以未履行出資義務為由,請求被冒名登記為股東的承擔補足出資責任或者對公司債務不能清償部分的賠償責任的,人民法院不予支持。
