Provisions on Several Issues Concerning the Application of the «PRC Company Law» (3) (Revised)
关于适用《中华人民共和国公司法》若干问题的规定 (三) (修正)
Provisions revised according to the amendments of the PRC Company Law.
(Promulgated by the Supreme People's Court on February 20 2014 and effective as of March 1 2014.)
(最高人民法院于二零一四年二月二十日发布，自二零一四年三月一日起施行。)
Judicial Interpretation [2014] No.2
法释〔2014〕2号
为正确适用《中华人民共和国公司法》，结合审判实践，就人民法院审理公司设立、出资、股权确认等纠纷案件适用法律问题作出如下规定。
第一条 为设立公司而签署公司章程、向公司认购出资或者股份并履行公司设立职责的人，应当认定为公司的发起人，包括有限责任公司设立时的股东。
第二条 发起人为设立公司以自己名义对外签订合同，合同相对人请求该发起人承担合同责任的，人民法院应予支持。
公司成立后对前款规定的合同予以确认，或者已经实际享有合同权利或者履行合同义务，合同相对人请求公司承担合同责任的，人民法院应予支持。
第三条 发起人以设立中公司名义对外签订合同，公司成立后合同相对人请求公司承担合同责任的，人民法院应予支持。
公司成立后有证据证明发起人利用设立中公司的名义为自己的利益与相对人签订合同，公司以此为由主张不承担合同责任的，人民法院应予支持，但相对人为善意的除外。
第四条 公司因故未成立，债权人请求全体或者部分发起人对设立公司行为所产生的费用和债务承担连带清偿责任的，人民法院应予支持。
部分发起人依照前款规定承担责任后，请求其他发起人分担的，人民法院应当判令其他发起人按照约定的责任承担比例分担责任；没有约定责任承担比例的，按照约定的出资比例分担责任；没有约定出资比例的，按照均等份额分担责任。
因部分发起人的过错导致公司未成立，其他发起人主张其承担设立行为所产生的费用和债务的，人民法院应当根据过错情况，确定过错一方的责任范围。
第五条 发起人因履行公司设立职责造成他人损害，公司成立后受害人请求公司承担侵权赔偿责任的，人民法院应予支持；公司未成立，受害人请求全体发起人承担连带赔偿责任的，人民法院应予支持。
公司或者无过错的发起人承担赔偿责任后，可以向有过错的发起人追偿。
第六条 股份有限公司的认股人未按期缴纳所认股份的股款，经公司发起人催缴后在合理期间内仍未缴纳，公司发起人对该股份另行募集的，人民法院应当认定该募集行为有效。认股人延期缴纳股款给公司造成损失，公司请求该认股人承担赔偿责任的，人民法院应予支持。
第七条 出资人以不享有处分权的财产出资，当事人之间对于出资行为效力产生争议的，人民法院可以参照物权法第一百零六条的规定予以认定。
以贪污、受贿、侵占、挪用等违法犯罪所得的货币出资后取得股权的，对违法犯罪行为予以追究、处罚时，应当采取拍卖或者变卖的方式处置其股权。
第八条 出资人以划拨土地使用权出资，或者以设定权利负担的土地使用权出资，公司、其他股东或者公司债权人主张认定出资人未履行出资义务的，人民法院应当责令当事人在指定的合理期间内办理土地变更手续或者解除权利负担；逾期未办理或者未解除的，人民法院应当认定出资人未依法全面履行出资义务。
第九条 出资人以非货币财产出资，未依法评估作价，公司、其他股东或者公司债权人请求认定出资人未履行出资义务的，人民法院应当委托具有合法资格的评估机构对该财产评估作价。评估确定的价额显著低于公司章程所定价额的，人民法院应当认定出资人未依法全面履行出资义务。
第十条 出资人以房屋、土地使用权或者需要办理权属登记的知识产权等财产出资，已经交付公司使用但未办理权属变更手续，公司、其他股东或者公司债权人主张认定出资人未履行出资义务的，人民法院应当责令当事人在指定的合理期间内办理权属变更手续；在前述期间内办理了权属变更手续的，人民法院应当认定其已经履行了出资义务；出资人主张自其实际交付财产给公司使用时享有相应股东权利的，人民法院应予支持。
出资人以前款规定的财产出资，已经办理权属变更手续但未交付给公司使用，公司或者其他股东主张其向公司交付、并在实际交付之前不享有相应股东权利的，人民法院应予支持。
第十一条 出资人以其他公司股权出资，符合下列条件的，人民法院应当认定出资人已履行出资义务：
（一）出资的股权由出资人合法持有并依法可以转让；
（二）出资的股权无权利瑕疵或者权利负担；
（三）出资人已履行关于股权转让的法定手续；
（四）出资的股权已依法进行了价值评估。
股权出资不符合前款第（一）、（二）、（三）项的规定，公司、其他股东或者公司债权人请求认定出资人未履行出资义务的，人民法院应当责令该出资人在指定的合理期间内采取补正措施，以符合上述条件；逾期未补正的，人民法院应当认定其未依法全面履行出资义务。
股权出资不符合本条第一款第（四）项的规定，公司、其他股东或者公司债权人请求认定出资人未履行出资义务的，人民法院应当按照本规定第九条的规定处理。
第十二条 公司成立后，公司、股东或者公司债权人以相关股东的行为符合下列情形之一且损害公司权益为由，请求认定该股东抽逃出资的，人民法院应予支持：
（一）制作虚假财务会计报表虚增利润进行分配；
（二）通过虚构债权债务关系将其出资转出；
（三）利用关联交易将出资转出；
（四）其他未经法定程序将出资抽回的行为。
第十三条 股东未履行或者未全面履行出资义务，公司或者其他股东请求其向公司依法全面履行出资义务的，人民法院应予支持。
公司债权人请求未履行或者未全面履行出资义务的股东在未出资本息范围内对公司债务不能清偿的部分承担补充赔偿责任的，人民法院应予支持；未履行或者未全面履行出资义务的股东已经承担上述责任，其他债权人提出相同请求的，人民法院不予支持。
股东在公司设立时未履行或者未全面履行出资义务，依照本条第一款或者第二款提起诉讼的原告，请求公司的发起人与被告股东承担连带责任的，人民法院应予支持；公司的发起人承担责任后，可以向被告股东追偿。
股东在公司增资时未履行或者未全面履行出资义务，依照本条第一款或者第二款提起诉讼的原告，请求未尽公司法第一百四十七条第一款规定的义务而使出资未缴足的董事、高级管理人员承担相应责任的，人民法院应予支持；董事、高级管理人员承担责任后，可以向被告股东追偿。
第十四条 股东抽逃出资，公司或者其他股东请求其向公司返还出资本息、协助抽逃出资的其他股东、董事、高级管理人员或者实际控制人对此承担连带责任的，人民法院应予支持。
公司债权人请求抽逃出资的股东在抽逃出资本息范围内对公司债务不能清偿的部分承担补充赔偿责任、协助抽逃出资的其他股东、董事、高级管理人员或者实际控制人对此承担连带责任的，人民法院应予支持；抽逃出资的股东已经承担上述责任，其他债权人提出相同请求的，人民法院不予支持。
第十五条 出资人以符合法定条件的非货币财产出资后，因市场变化或者其他客观因素导致出资财产贬值，公司、其他股东或者公司债权人请求该出资人承担补足出资责任的，人民法院不予支持。但是，当事人另有约定的除外。
第十六条 股东未履行或者未全面履行出资义务或者抽逃出资，公司根据公司章程或者股东会决议对其利润分配请求权、新股优先认购权、剩余财产分配请求权等股东权利作出相应的合理限制，该股东请求认定该限制无效的，人民法院不予支持。
第十七条 有限责任公司的股东未履行出资义务或者抽逃全部出资，经公司催告缴纳或者返还，其在合理期间内仍未缴纳或者返还出资，公司以股东会决议解除该股东的股东资格，该股东请求确认该解除行为无效的，人民法院不予支持。
在前款规定的情形下，人民法院在判决时应当释明，公司应当及时办理法定减资程序或者由其他股东或者第三人缴纳相应的出资。在办理法定减资程序或者其他股东或者第三人缴纳相应的出资之前，公司债权人依照本规定第十三条或者第十四条请求相关当事人承担相应责任的，人民法院应予支持。
第十八条 有限责任公司的股东未履行或者未全面履行出资义务即转让股权，受让人对此知道或者应当知道，公司请求该股东履行出资义务、受让人对此承担连带责任的，人民法院应予支持；公司债权人依照本规定第十三条第二款向该股东提起诉讼，同时请求前述受让人对此承担连带责任的，人民法院应予支持。
受让人根据前款规定承担责任后，向该未履行或者未全面履行出资义务的股东追偿的，人民法院应予支持。但是，当事人另有约定的除外。
第十九条 公司股东未履行或者未全面履行出资义务或者抽逃出资，公司或者其他股东请求其向公司全面履行出资义务或者返还出资，被告股东以诉讼时效为由进行抗辩的，人民法院不予支持。
公司债权人的债权未过诉讼时效期间，其依照本规定第十三条第二款、第十四条第二款的规定请求未履行或者未全面履行出资义务或者抽逃出资的股东承担赔偿责任，被告股东以出资义务或者返还出资义务超过诉讼时效期间为由进行抗辩的，人民法院不予支持。
第二十条 当事人之间对是否已履行出资义务发生争议，原告提供对股东履行出资义务产生合理怀疑证据的，被告股东应当就其已履行出资义务承担举证责任。
第二十一条 当事人向人民法院起诉请求确认其股东资格的，应当以公司为被告，与案件争议股权有利害关系的人作为第三人参加诉讼。
第二十二条 当事人之间对股权归属发生争议，一方请求人民法院确认其享有股权的，应当证明以下事实之一：
（一）已经依法向公司出资或者认缴出资，且不违反法律法规强制性规定；
（二）已经受让或者以其他形式继受公司股权，且不违反法律法规强制性规定。
第二十三条 当事人依法履行出资义务或者依法继受取得股权后，公司未根据公司法第三十一条、第三十二条的规定签发出资证明书、记载于股东名册并办理公司登记机关登记，当事人请求公司履行上述义务的，人民法院应予支持。
第二十四条 有限责任公司的实际出资人与名义出资人订立合同，约定由实际出资人出资并享有投资权益，以名义出资人为名义股东，实际出资人与名义股东对该合同效力发生争议的，如无合同法第五十二条规定的情形，人民法院应当认定该合同有效。
前款规定的实际出资人与名义股东因投资权益的归属发生争议，实际出资人以其实际履行了出资义务为由向名义股东主张权利的，人民法院应予支持。名义股东以公司股东名册记载、公司登记机关登记为由否认实际出资人权利的，人民法院不予支持。
实际出资人未经公司其他股东半数以上同意，请求公司变更股东、签发出资证明书、记载于股东名册、记载于公司章程并办理公司登记机关登记的，人民法院不予支持。
第二十五条 名义股东将登记于其名下的股权转让、质押或者以其他方式处分，实际出资人以其对于股权享有实际权利为由，请求认定处分股权行为无效的，人民法院可以参照物权法第一百零六条的规定处理。
名义股东处分股权造成实际出资人损失，实际出资人请求名义股东承担赔偿责任的，人民法院应予支持。
第二十六条 公司债权人以登记于公司登记机关的股东未履行出资义务为由，请求其对公司债务不能清偿的部分在未出资本息范围内承担补充赔偿责任，股东以其仅为名义股东而非实际出资人为由进行抗辩的，人民法院不予支持。
名义股东根据前款规定承担赔偿责任后，向实际出资人追偿的，人民法院应予支持。
第二十七条 股权转让后尚未向公司登记机关办理变更登记，原股东将仍登记于其名下的股权转让、质押或者以其他方式处分，受让股东以其对于股权享有实际权利为由，请求认定处分股权行为无效的，人民法院可以参照物权法第一百零六条的规定处理。
原股东处分股权造成受让股东损失，受让股东请求原股东承担赔偿责任、对于未及时办理变更登记有过错的董事、高级管理人员或者实际控制人承担相应责任的，人民法院应予支持；受让股东对于未及时办理变更登记也有过错的，可以适当减轻上述董事、高级管理人员或者实际控制人的责任。
第二十八条 冒用他人名义出资并将该他人作为股东在公司登记机关登记的，冒名登记行为人应当承担相应责任；公司、其他股东或者公司债权人以未履行出资义务为由，请求被冒名登记为股东的承担补足出资责任或者对公司债务不能清偿部分的赔偿责任的，人民法院不予支持。
The following provisions have been formulated in respect of issues concerning the application of the law by people's courts in the trial of disputes involving the establishment of companies, capital contributions, confirmation of equity interests, etc., in light of trial practice, in order to correctly apply the PRC Company Law.
Article 1: Persons that, for the purposes of establishing a company, execute the company's articles of association, subscribe for the capital contributions to, or shares in, the company and perform the duties involved in the establishment of the company shall be deemed the promoters of the company; such promoters include the shareholders of a limited liability company at the time of its establishment.
Article 2: Where a promoter, for the purpose of establishing a company, executes a contract with a third party in its own name and the counterparty to the contract requests that the promoter assume the liability under such contract, the people's court shall uphold such request.
Where, after its establishment, the company acknowledges the contract specified in the preceding paragraph, or has actually enjoyed the rights or performed the obligations under such contract, and the counterparty to the contract requests that the company assume the liability under such contract, the people's court shall uphold such request.
Article 3: If a promoter executes a contract with a third party in the name of a company that is being established and, after the establishment of the company, the counterparty to the contract requests that the company assume the liability under such contract, the people's court shall uphold such request.
If, after its establishment, the company has evidence showing that the promoter used the company's name while it was being established to execute the contract with the counterparty in the promoter's own interest, and the company claims on such grounds that it is not liable under such contract, the people's court shall uphold such claim, unless the counterparty entered into such contract in good faith.
Article 4: If the establishment of a company is not successful for any reason and a creditor requests that all or some of the promoters bear joint and several liability for repayment of the expenses and debts incurred in the course of the effort to establish the company, the people's court shall uphold such request.
If some of the promoters, after bearing the liability in accordance with the preceding paragraph, request that the other promoters share such liability, the people's court shall render a judgment ordering the other promoters to share the liability in proportion to the liability bearing percentages agreed upon. If no liability-bearing percentages were agreed upon, they shall bear liability in proportion to their agreed upon capital contributions. If no capital contribution percentages were agreed upon, they shall bear the liability equally.
If the establishment of the company was unsuccessful due to the fault of some of the promoters, and the other promoters request that they bear the expenses and debts incurred in the course of the effort to establish the company, the people's court shall determine the scope of liability of the parties at fault based on the circumstances of the fault.
Article 5: If a promoter, in performing its duties associated with the establishment of a company, causes a third party to incur damage, and, after the establishment of the company, the injured party requests that the company bear the liability for tort compensation, the people's court shall uphold such request. If the establishment of the company was unsuccessful and the injured party requests that all of the promoters bear joint and several liability for compensation, the people's court shall uphold such request.
After it or they have borne the liability for compensation, the company or the promoters that were not at fault may seek recourse against the promoters that were at fault.
Article 6: If a subscriber of a company limited by shares fails to pay on schedule the subscription moneys for the shares for which it has subscribed, still fails to do so within a reasonable period of time after a reminder from the promoters of the company, and the promoters of the company then put such shares up for offer, the people's court shall determine such offering to be valid. If the delayed payment of subscription moneys by a subscriber causes the company to incur a loss and the company requests that such subscriber bear liability for compensation, the people's court shall uphold such request.
Article 7: If an investor makes its capital contribution in the form of property over which it does not have a right of disposal and a dispute arises between the concerned parties over the validity of the capital contribution, the people's court may render its determination with reference to Article 106 of the Property Law.
If an equity interest is secured by way of a capital contribution made in the form of money derived from an illegal or criminal act, such as embezzlement, bribery, misappropriation and diversion, such equity shall be disposed of by way of an auction or sale when the illegal or criminal act is pursued and punished.
Article 8: If an investor makes its capital contribution in the form of an allocated leasehold or leasehold over which an encumbrance has been created and the company, other shareholders or a creditor of the company request(s) that a determination to the effect that the investor has failed to perform its capital contribution obligation be rendered, the people's court shall order the concerned party to carry out the procedures for the change in the land or remove the encumbrance within the designated reasonable period of time. If the investor fails to do so, the people's court shall determine that it has not fully performed its capital contribution obligation in accordance with the law.
Article 9: If an investor makes its capital contribution in the form of non-monetary property that was not appraised and priced in accordance with the law, and the company, other shareholders or a creditor of the company request(s) that a determination to the effect that the investor has failed to perform its capital contribution obligation be rendered, the people's court shall appoint a qualified appraisal firm to appraise and price the property. If the value of the property determined in the appraisal is markedly lower than the value determined in the articles of association of the company, the people's court shall determine that the investor has not fully performed its capital contribution obligation in accordance with the law.
Article 10: If an investor makes its capital contribution in the form of property such as premises or leaseholds, or in the form of intellectual property for which the carrying out of title registration is required and has delivered such property for use by the company but has not carried out the procedures for the change in title thereto, and the company, other shareholders or a creditor of the company request(s) that a determination to the effect that the investor has failed to perform its capital contribution obligation be rendered, the people's court shall order the concerned party to carry out the procedures for the change in title within the designated reasonable period of time. If it does so within the aforementioned period of time, the people's court shall determine that it has performed its capital contribution obligation; and if the investor claims that it was entitled to the relevant shareholder rights from the time it actually delivered the property for use by the company, the people's court shall uphold such claim.
If an investor makes its capital contribution in the form of the property specified in the preceding paragraph, has carried out the procedures for the change in title thereto but has not delivered the same for use by the company, and the company or other shareholders request(s) that it deliver the same to the company and that it not be eligible for the relevant shareholder rights before actual delivery, the people's court shall uphold such request.
Article 11: If an investor makes its capital contribution in the form of an equity interest in another company, the people's court shall determine that it has performed its capital contribution obligation if the following conditions are satisfied:
(1) the equity interest is lawfully owned by the investor and, in accordance with the law, may be transferred;
(2) there are no defects in the rights to the equity interest and it is free of encumbrances;
(3) the investor has carried out the statutory procedures for transfer of the equity interest; and
(4) the value of the equity interest has been appraised in accordance with the law.
If a capital contribution made in the form of an equity interest fails to satisfy one of the conditions set forth in Item (1), (2) or (3) of the preceding paragraph, and the company, other shareholders or a creditor of the company request(s) that a determination to the effect that the investor has failed to perform its capital contribution obligation be rendered, the people's court shall order the investor to take remedial measures to satisfy the foregoing conditions within the designated reasonable period of time. If it fails to do so, the people's court shall determine that the investor has not fully performed its capital contribution obligation in accordance with the law.
If a capital contribution made in the form of an equity interest does not satisfy the condition set forth in Item (4) of the first paragraph of this Article, and the company, other shareholders or a creditor of the company request(s) that a determination to the effect that the investor has failed to perform its capital contribution obligation be rendered, the people's court shall handle the matter in accordance with Article 9 hereof.
Article 12: If, after the establishment of a company, the company, shareholders or a creditor of the company, on the grounds that any of the circumstances set forth below apply to the act by the relevant shareholder and such act harms the rights and interests of the company, request(s) that a determination to the effect that the shareholder has illegally withdrawn its capital contribution be rendered, the people's court shall uphold such request:
(1) it prepares fraudulent financial accounting statements to fraudulently increase profits that are then distributed;
(2) it transfers its capital contribution out after fabricating a claim-debt relationship;
(3) it transfers its capital contribution out by way of an affiliated transaction; or
(4) it otherwise withdraws its capital contribution without carrying out the statutory procedure.
Article 13: If a shareholder fails to perform its capital contribution obligation in full or in part and the company or other shareholders request(s) that it perform such obligation in full, the people's court shall uphold such request.
If a creditor of the company requests that a shareholder that has not performed its capital contribution obligation in full or in part bear, in respect of the portion of the company's debt that cannot be repaid, liability for supplementary compensation to the extent of the principal of and interest on the capital contribution that it has failed to make, the people's court shall uphold such request. If, after the shareholder that has not performed its capital contribution obligation in full or in part has borne the aforementioned liability, another creditor makes an identical claim, the people's court shall not uphold such claim.
If a shareholder, at the time of the establishment of the company, fails to perform its capital contribution obligation in full or in part and a plaintiff that institutes a legal action pursuant to the first paragraph or the second paragraph of this Article requests that the promoters of the company and the shareholder that is the defendant in the case bear joint and several liability, the people's court shall uphold such request. Once they have borne the liability, the promoters of the company may seek recourse against the shareholder that was the defendant in the case.
If a shareholder, at the time of a capital increase by the company, fails to perform its capital contribution obligation in full or in part and a plaintiff that institutes a legal action pursuant to the first paragraph or the second paragraph of this Article requests that the directors and senior management personnel that failed to perform the obligations specified in the first paragraph of Article 147 of the Company Law, resulting in the capital contributions not being paid in full, bear the attendant liability, the people's court shall uphold such request. Once they have borne the liability, the directors and senior management personnel may seek recourse against the shareholder that was the defendant in the case.
Article 14: If a shareholder illegally withdraws its capital contribution and the company or other shareholders request(s) that it return the principal of, and the interest on, its capital contribution to the company and that the other shareholders, directors, senior management personnel or de facto controller that assisted in the illegal withdrawal of the capital contribution bear joint and several liability therefor, the people's court shall uphold such request.
If a creditor of the company requests that the shareholder that has illegally withdrawn its capital contribution bear, in respect of the portion of the company's debt that cannot be repaid, liability for supplementary compensation to the extent of the principal of and interest on the illegally withdrawn capital contribution and that the other shareholders, directors, senior management personnel or de facto controller that assisted in the illegal withdrawal of the capital contribution bear joint and several liability therefor, the people's court shall uphold such request. If, after the shareholder that has illegally withdrawn its capital contribution has borne the aforementioned liability, another creditor makes an identical claim, the people's court shall not uphold such claim.
Article 15: If, after an investor makes its capital contribution in the form of non-monetary property that satisfies the statutory conditions, such property decreases in value due to changes in the market or another objective factor and the company, other shareholders or a creditor of the company request(s) that the investor bear liability for making up the difference in its capital contribution, the people's court shall not uphold such request, unless the parties had provided otherwise.
Article 16: Where a shareholder fails to perform its capital contribution obligation in full or in part or illegally withdraws its capital contribution and the company, pursuant to its articles of association or a resolution of the shareholders' meeting, places reasonable restrictions on its shareholder rights such as the right to claim a profit distribution, the preemptive right to subscribe for new shares or the right to a distribution of remaining property, if the shareholder requests that a determination to the effect that such restriction is invalid be rendered, the people's court shall not uphold such request.
Article 17: Where a shareholder of a limited liability company fails to perform its capital contribution obligation or illegally withdraws all of its capital contribution, fails to make or return such capital contribution within a reasonable period of time after being reminded to do so by the company, and the company terminates its qualifications as a shareholder by way of a resolution of the shareholders' meeting, if the shareholder requests confirmation that such termination is invalid, the people's court shall not uphold such request.
Under the circumstance described in the preceding paragraph, the people's court shall, when rendering its judgment, explain that the company is required to, in a timely manner, carry out the statutory capital reduction procedure or have the other shareholders or a third party make the relevant capital contribution. If a creditor of the company, before the statutory capital reduction procedure has been carried out or the other shareholders or a third party have/has made the relevant capital contribution, requests pursuant to Article 13 or Article 14 hereof that the relevant parties bear the attendant liability, the people's court shall uphold such request.
Article 18: If a shareholder of a limited liability company that has not performed its capital contribution obligation in full or in part transfers its equity interest and the transferee knew or ought to have known thereof, and the company requests that the shareholder perform its capital contribution obligation and that the transferee bear joint and several liability therefor, the people's court shall uphold such request. If a creditor of the company institutes an action against the shareholder pursuant to the second paragraph of Article 13 hereof and additionally requests that the aforementioned transferee bear joint and several liability therefor, the people's court shall uphold such request.
If the transferee, after bearing liability in accordance with the preceding paragraph, seeks recourse against the shareholder that failed to perform its capital contribution obligation in full or in part, the people's court shall uphold such recourse, unless the parties had provided otherwise.
Article 19: Where a shareholder of a company fails to perform its capital contribution obligation in full or in part or illegally withdraws its capital contribution and the company or other shareholders request(s) that it fully perform its capital contribution obligation toward the company or return its capital contribution, if the shareholder that is the defendant in the case mounts its defence on the grounds of the limitation of actions, the people's court shall not uphold such grounds.
Where the limitation of actions for a claim of a creditor of the company has not expired and the creditor requests, pursuant to the second paragraph of Article 13 or the second paragraph of Article 14 hereof, that the shareholder that failed to perform its capital contribution in full or in part or illegally withdrew its capital contribution bear liability for compensation, if the shareholder that is the defendant in the case mounts its defence on the grounds that the limitation of actions for its capital contribution obligation or obligation to return the capital contribution has expired, the people's court shall not uphold such grounds.
Article 20: If a dispute arises between parties over whether a capital contribution obligation has been performed, and the plaintiff provides evidence that gives rise to reasonable doubt as to whether the shareholder has performed its capital contribution obligation, the shareholder that is the defendant in the case shall bear the burden of proof in respect of its having performed its capital contribution obligation.
Article 21: When a party institutes a legal action in a people's court seeking confirmation of its status as a shareholder, it shall name the company as the defendant, and persons that have a material interest in the disputed equity in the case shall participate in the action as third parties.
Article 22: When a dispute over ownership of an equity interest arises between parties, and a party requests that the people's court confirm that it owns such equity interest, it shall substantiate one of the following facts:
(1) has made a capital contribution or subscribed for a capital contribution to the company in accordance with the law and the same does not violate mandatory provisions of laws or regulations; or
(2) it has acquired or otherwise succeeded to the equity interest in the company and the same does not violate mandatory provisions of laws or regulations.
Article 23: If, after a party has, in accordance with the law, performed its capital contribution obligation or succeeded to and obtained an equity interest, the company fails to issue an investment certificate, and/or record its name in the register of shareholders and carry out registration with the company registry, in accordance with Articles 31 and 32 of the Company Law, and the party requests that the company perform the foregoing obligations, the people's court shall uphold such request.
Article 24: If an actual investor and a nominal investor in a limited liability company enter into a contract providing for the capital contribution to be made and the investment rights and interests to be enjoyed by the actual investor and for the nominal investor to be the nominal shareholder, and a dispute over the validity of the contract arises between the actual investor and the nominal investor, the people's court shall determine such contract to be valid unless any of the circumstances set forth in Article 52 of the Contract Law applies.
If a dispute arises between the actual investor and the nominal shareholder specified in the preceding paragraph over vesting of the investment rights and interests, and the actual investor asserts rights against the nominal shareholder on the grounds that it was it that actually performed the capital contribution obligation, the people's court shall uphold such assertion. If the nominal shareholder denies the actual investor's rights on the grounds of the record in the company's register of shareholders and the registration with the company registry, the people's court shall not uphold such denial.
If the actual investor, without the consent of at least one half of the other shareholders of the company, requests that the company change shareholders, issue it an investment certificate, record it in the register of shareholders, record it in the articles of association of the company and carry out registration with the company registry, the people's court shall not uphold such request.
Article 25: If a nominal shareholder transfers, pledges or otherwise disposes of the equity registered under its name and the actual investor requests that a determination to the effect that such disposal is invalid be rendered on the grounds that it is it that has the actual rights in the equity, the people's court may handle the matter with reference to Article 106 of the Property Law.
If the disposal of the equity interest by the nominal shareholder causes the actual investor to incur a loss and the actual investor requests that the nominal shareholder bear liability for compensation, the people's court shall uphold such request.
Article 26: If a creditor of a company requests that a shareholder registered with the company registry bear, on the grounds that it has not performed its capital contribution obligation, in respect of the portion of the company's debt that cannot be repaid, liability for supplementary compensation to the extent of the principal of and interest on the capital contribution that it has failed to make, and the shareholder mounts its defence on the grounds that it is merely a nominal shareholder and not the actual investor, the people's court shall not uphold such grounds.
If the nominal shareholder, after bearing the liability for compensation pursuant to the preceding paragraph, seeks recourse against the actual investor, the people's court shall uphold such recourse.
Article 27: If, after an equity transfer, registration of the change is not carried out with the company registry, and the original shareholder transfers, pledges or otherwise disposes of the equity still registered under its name, and the acquiring shareholder requests that a determination to the effect that such disposal is invalid be rendered on the grounds that it is it that has the actual rights in the equity, the people's court may handle the matter with reference to Article 106 of the Property Law.
If the disposal of the equity by the original shareholder causes the acquiring shareholder to incur a loss and the acquiring shareholder requests that the original shareholder bear liability for compensation and that the directors, senior management personnel or de facto controller that are at fault for failing to carry out registration of the change in a timely manner bear the attendant liability, the people's court shall uphold such request. If the acquiring shareholder was also at fault for the failure to carry out registration of the change in a timely manner, the liability of the aforementioned directors, senior management personnel or de facto controller may be appropriately reduced.
Article 28: If a party fraudulently uses another's name to make a capital contribution and registers such third party as a shareholder with the company registry, such party shall bear the attendant liability. If the company, other shareholders or a creditor of the company request(s), on the grounds of failure to perform the capital contribution obligation, that the party whose name was fraudulently used and registered as a shareholder bear the liability for making up the difference in the capital contribution or compensation for the portion of the company's debt that cannot be repaid, the people's court shall not uphold such request.
clp reference:2330/14.02.20(3)prc reference:法释〔2014〕2号promulgated:2014-02-20effective:2014-03-01This premium content is reserved for
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