Viewpoint... From the perspective of shareholder withdrawal of capital contribution analysis of shareholders damage to the interests of the company's creditors liability dispute case summary.

Withdrawal of capital contribution refers to the act of returning the capital contribution property that has been transferred to the company after the establishment of the company or after the completion of the company's capital verification, but still normally retains the identity of the shareholder and the original amount of capital contribution.

the People's Republic of China Companies Act

Article 53 After the establishment of a company, shareholders shall not withdraw their capital contributions.

In case of violation of the provisions of the preceding paragraph, the shareholder shall return the capital contribution withdrawn; if losses are caused to the company, the responsible directors, supervisors and senior managers shall bear joint and several liability with the shareholder.

The Supreme People's Court on the application<中华人民共和国公司法>(III) on Certain Issues

Article 12 After the establishment of a company, if the company, shareholders or creditors of the company request that the relevant shareholder's behavior conforms to one of the following circumstances and damages the company's rights and interests, the people's court shall support it:

(I) the production of false financial accounting statements to increase profits for distribution;

The (II) transfers its capital contribution through fictitious creditor's rights and debts;

(III) the use of related transactions to transfer capital contributions;

(IV) other acts of withdrawal of capital contributions without legal procedures.

Article 14 Where a shareholder withdraws his capital contribution, the people's court shall support the request of the company or other shareholders to return the principal and interest of the capital contribution to the company, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution shall bear joint and several liability for this.

The people's court shall support the shareholders who request the withdrawal of capital contributions to bear supplementary liability for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions shall bear joint and several liability for this. The people's court shall not support the shareholders who have already assumed the above-mentioned responsibilities and other creditors make the same request.

The focus of the dispute in this case is whether Zong, Hua, Zhang and Hua companies have evaded their capital contributions. According to the facts found out in the first instance, after Hua and Zhang, shareholders of a silver company, contributed 20 million yuan on September 23, 2009 and completed the capital verification, the company's account was transferred to the commercial and civilian accounts in four transactions (each 5 million yuan) on September 24, 2009, totaling 20 million yuan. After shareholders and Zhang contributed 30 million yuan on September 27, 2009 and completed the capital verification, on September 28, 2009, the company's account was transferred to the account of Tongmou Company in five transactions (each 4 million yuan) totaling 20 million yuan and to the account of Jianmou Company in two transactions (each 4999990 yuan) totaling 9999980 yuan. In April 2011, shareholders, Zhang, Zong and Hua transferred 50 million yuan of capital increase to the company's account for capital verification and then transferred out 5 more transactions, totaling 50 million yuan. The Court believes that it is not in line with the company's normal financial system to transfer a large amount of funds in a short period of time without justifiable reasons after the completion of capital verification and capital increase by the shareholders, and after the creditors Wu and Li raised reasonable doubts about the above transfer, shareholders Zong Mou, Hua Mou, Zhang Mou, Hua Mou company has the responsibility to provide evidence to prove that there is a legal and reasonable transfer between a company and a company, a company, a company and other payees. The audit report submitted by Zong, Hua and Hua in the first instance is an audit of their accounts and capital in part of the time period according to the financial information unilaterally provided by Yin Company. Wu and Li did not approve them. Zong, Hua, Zhang and Hua Company failed to provide evidence such as contracts, invoices, settlement documents, financial accounting vouchers, resolutions of shareholders' meeting, etc. corresponding to the transferred funds, should bear the adverse consequences of proof can not. According to the Supreme People's Court on the application<中华人民共和国公司法>According to the provisions of Article 12 of the (III) on certain issues, the above-mentioned acts of Zong, Hua, Zhang and Hua constitute the withdrawal of capital contributions. Although on December 19, 2012, the capital verification report stated that the shareholders of a silver company, zong mou, hua mou, Zhang mou and Jinan deng mou trade co., ltd., made a supplementary contribution of 50 million yuan, but on the day of supplementary payment, all the capital contribution was transferred out, zong, Hua, Zhang and Hua also failed to provide evidence to prove that the contracts, invoices, settlement documents, financial bookkeeping vouchers, resolutions of the shareholders' meeting and other evidence corresponding to the transfer of funds after the supplementary payment of capital contributions, so the capital verification report also cannot prove that the shareholders of a company in the bank did not evade capital contributions or have paid back capital contributions. Wu Mou and Li Mou, as creditors of a silver company, requested Zong Mou, Hua Mou, Zhang Mou and Hua Mou Company to bear supplementary compensation liability for the unliquidated part of the debt of Yindi Company (2017) Lu 0102 Minchu 2594 Civil Judgment within the scope of their respective capital withdrawal, which is legally justified. However, according to the equity change, capital contribution and capital increase of a company in Yinmou, the amount of capital contribution withdrawn by Hua mou is higher than that of 51 million yuan, the amount of capital contribution withdrawn by Zhang mou is 10 million yuan, the amount of capital contribution withdrawn by Zong mou is 4.5 million yuan, and the amount of capital contribution withdrawn by a company in Hua mou is 15 million yuan. Wu mou and Li mou have no evidence to prove that Zong Yong and Hua Wei company knew the fact of capital contribution when they accepted the equity, therefore, the hospital only supports Zong, Hua, Zhang and Hua to bear supplementary compensation liability for the debts involved within the scope of their respective evaded contributions of 4.5 million yuan, 51 million yuan, 10 million yuan and 15 million yuan. The shareholders withdraw the registered capital without legal procedures, resulting in the reduction of the company's liability property, the reduction of solvency, and the damage to the interests of the company's creditors.

Referee's point of view: on the question of whether Meng has withdrawn his capital contribution. The existing evidence in this case shows that on January 9, 2014, Meng, Tang and Shi paid in capital contributions of 5 million yuan, 1 million yuan and 4 million yuan respectively, and on January 15, 2014, 10 million yuan was transferred out by way of transfer. The transfer of the above funds did not go through the company's normal financial transfer procedures. Therefore, the original judgment found that it was not improper for Meng Xuan to withdraw capital contributions of 5 million yuan and Tang to withdraw capital contributions of 1 million yuan. Meng said that the transferred 10 million yuan was used for the project investment of Qianfuyuan Company and the People's Government of Supao Town, and provided the bank flow to pay for the project, but all the funds of the above-mentioned project did not pass through the company's account, and there was no details of the relevant company's financial statements. The payment time, payment amount and payee shown in the personal bank account flow provided by Meng do not correspond to the contents of the Project Contract Agreement and the counterparty of the contract, so the evidence provided by Meng is not sufficient to achieve its purpose of proof.

Referee's view: On whether a state investment company constitutes a withdrawal of capital contribution and whether it should bear supplementary liability within the scope of the withdrawal of capital contribution. According to the facts ascertained, on September 15, 2017, a state investment company transferred 0.2 billion yuan of investment funds to the account of Xin Mou Nuo Company, and on the same day Xin Mou Nuo Company will transfer 80 million yuan of investment funds to the account of a state investment company. On September 18, 2017, Xin Mou Nuo Company transferred 0.11 billion yuan from its account to the account of Guotou Company. On December 26, 2017, a national investment company transferred 99 million yuan to the account of Xin Mou Nuo Company. On January 3, 2018, Xin Mou Nuo Company transferred 0.12 billion yuan from its account to the account of China Investment Corporation. A state investment company claimed that the 0.19 billion yuan transferred by Xinnuo Company to a state investment company was a loan, but did not submit evidence to prove that it had a loan relationship with Xinnuo Company, so the defense was not established. As a shareholder of Xin Mou Nuo Company, a certain investment company in China has withdrawn its capital contribution and cannot prove that it has made up its capital contribution, it shall bear supplementary compensation liability to the company within the scope of 0.2 billion yuan and interest of the withdrawn capital.

Referee's Point of View: After examination, the court held that according to the facts found out in the original trial, a company in Shan was registered and established on October 22, 2009, and a company in Shan transferred 2 million yuan to a company in Hui on October 29, 2009. As for the reason for the 2 million yuan transfer, the shareholders of a company in Shan did not provide sufficient and effective evidence to prove that it was based on legitimate reasons, and the statements of Sun and Tan were inconsistent during the original trial, and the statements of the two were also inconsistent. The court of first instance comprehensively determined that the three shareholders of a company in Shan had evaded their capital contribution and ordered them to bear supplementary compensation liability within the scope of the evaded capital contribution, which was not improper.

Referee's point of view: On the issue of Meng and Meng's responsibility. The Court believes that the focus of the issue involves Meng, whether Meng constitutes a false capital contribution or evasion of capital contribution and the scope of responsibility. First, about whether Meng or Meng constitutes a false contribution or a withdrawal of capital. The evidence involved in the case shows that Meng and Meng opened a bank account with the rural commercial bank on May 10, 2004 in order to set up a de source company, and borrowed 15 million yuan and 5 million yuan from the rural commercial bank as registered capital on the same day, which was deposited into the bank account opened for the de source company, fulfilling the obligation of capital contribution. On the day of capital contribution, a source company in Germany will complete the capital verification inquiry. The next day after the capital verification, Meng and Meng returned the loan principal of 20 million yuan and interest to the Agricultural Commercial Bank. It can be seen from this that the investment company has reason to suspect that Meng and Meng will transfer the capital contribution to the account of De Mou Yuan Company and then transfer it out. Meng and Meng have been legally summoned by the court and have not appeared in court to participate in the lawsuit without justifiable reasons. This is regarded as a waiver of their litigation rights and shall bear the adverse consequences of not being able to provide evidence according to law. Therefore, in this case, it should be determined that Meng and Meng constitute a withdrawal of capital contribution.

Referee's view: The focus of the dispute in the second instance of this case is still whether Sun has the act of withdrawing his capital contribution. In this case, Sun, as a shareholder of CLP Gongxin Company, subscribed 5 million yuan and 14.5 million yuan respectively when Zhongxin Company was established in November 2010 and when it increased its capital in February 2012. However, after the capital verification was completed, the above funds were transferred from the bank account of Zhongxin Company to an individual industrial and commercial bank in China and a supply chain firm under his actual control. Although Sun Mou issued the cover of the bookkeeping voucher submitted by him in the second trial of our hospital, the payment application form, the bookkeeping voucher and the original of two "audit reports" of the division (or company) of a letter company in China, the payment application form and the relevant bookkeeping voucher of the division (or company) of a letter company in China are all internal financial bookkeeping procedures of a letter company in China and do not have the effect of external public trust, it cannot be objectively proved that the transfer of capital contribution involved in the case is based on the fact that there are real transactions and commercial activities between a letter company in China and a supply chain firm in China. The two "audit reports" submitted by sun mou can prove the capital contribution of the shareholders of a letter company in China, but cannot prove the legality of sun mou's imminent transfer of capital contribution after the capital contribution; sun also failed to submit other conclusive and sufficient evidence to support his appeal. Therefore, the court of first instance held that "sun mou will withdraw the capital contribution soon after the establishment of a certain letter company and the company's capital increase, and his behavior constitutes withdrawal of capital contribution, which infringes on the property rights and interests of a certain letter company in China and damages the independence of the property of a certain letter company in China. the lawsuit request of a certain letter company to request sun mou to return the withdrawn capital contribution is legally based and supported.

Referee's point of view: In this case, although Xue and Yang transferred the total capital contribution of 500000 yuan to the bank account of Helian Company on December 27, 2012, the date of establishment of Helian Company, Xue and Yang completed the capital verification with Helian Company on the same day, immediately transfer the name of the previous payment of 500000 yuan from the bank account of a company in Helian to a trading account in England. Because Xue mou, yang mou and yang mou failed to submit evidence to prove that he lian mou company had entered into relevant written contracts and commercial activities with a certain trade in Britain, the first-instance judgment found that Xue mou, yang mou and yang mou immediately drew back the capital contribution after establishing he lian mou company, and their behavior constituted the withdrawal of capital contribution, which was correct.

About Qu's responsibility. According to the facts found out, Qu's 12 million yuan for capital increase and Qu's 8 million yuan for capital increase, totaling 20 million yuan, were remitted to the capital verification account on July 6, 2010. After the capital verification was completed, the industrial and commercial registration change procedures for capital increase were completed on July 8, 2010. They were transferred to Zhengmou Company and Xinmou Company on July 9, 2010, each 9.98 million yuan, totaling 19.96 million yuan, were transferred out of a machinery company in Germany. The Court believes that it is not in line with the normal financial system of the company to transfer a large amount of funds within a short period of time without justifiable reasons after the shareholders of a machinery company in Germany have completed the capital increase verification. After Ren, as a creditor, raises reasonable doubts about the above transfer, the capital increase shareholders Qu and Qu should submit relevant evidence to prove that there is a legal and reasonable reason for the transfer between a machinery company in Shide and a company in Zheng and Xin. Qu and Qu, as the only two shareholders of a German machinery company, only put forward defenses without providing relevant basis to prove the rationality of the transferred funds. The above-mentioned transferred 19.96 million yuan shall be deemed to constitute the withdrawal of capital contributions. According to the proportion of Qu's capital increase, the court of first instance found that Qu's withdrawal of capital contribution of 7.98 million yuan and the assumption of supplementary compensation liability within the scope of the withdrawal of capital contribution were legally justified, and the court should maintain it.