Discussion on adding shareholders as the executed party during the execution phase

Article 54 of the new Company Law stipulates: 'If a company is unable to repay its due debts, the company or the creditors of the due debts have the right to demand that shareholders who have subscribed for capital but have not yet reached the capital contribution deadline pay their capital in advance.' According to this provision, how to add shareholders as executed persons during the execution stage has attracted a lot of attention. In response, on the afternoon of July 12, 2024, in the Denghu Classroom, Lawyer Yang Wuquan from our firm brought a discussion on how to add shareholders as executed persons during the execution stage.

1、 Five basic situations and legal basis for adding company shareholders as executed persons

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situation

Provisions of the Supreme People's Court on Several Issues Concerning the Change or Addition of Parties in Civil Enforcement

one

Article 17: As a for-profit legal person subject to enforcement, if its assets are insufficient to repay the debts determined by effective legal documents, the applicant for enforcement shall apply to change or add shareholders, contributors, or initiators who have not paid or fully paid their capital contributions as the subject of enforcement in accordance with the provisions of the Company Law. If they are legally liable within the scope of unpaid capital contributions, the people's court shall support it.

two

The shareholders and contributors who have withdrawn their capital contributions are the persons subject to execution

Article 18: As a for-profit legal person subject to enforcement, if its assets are insufficient to pay off the debts determined by effective legal documents, and the applicant for enforcement applies to change or add shareholders or contributors who have withdrawn their capital as the subject of enforcement, and assumes responsibility within the scope of the withdrawn capital, the people's court shall support it.

three

The shareholder who transfers equity without fulfilling the obligation of capital contribution in accordance with the law shall be the executor

Article 19: If the assets of a company that is subject to enforcement are insufficient to repay the debts determined by effective legal documents, and its shareholders transfer their equity without fulfilling their capital contribution obligations in accordance with the law, and the applicant for enforcement applies to change or add the original shareholder or the initiator who bears joint and several liability for the capital contribution in accordance with the provisions of the Company Law as the subject of enforcement, and assumes responsibility within the scope of the failure to make capital contribution in accordance with the law, the people's court shall support it.

four

Add a shareholder of the one person company as the executed party

Article 20: If a one person limited liability company, as the executed party, has insufficient assets to repay the debts determined by effective legal documents, and the shareholders cannot prove that the company's assets are independent of their own assets, and the applicant for execution applies to change or add the shareholder as the executed party and assume joint and several liability for the company's debts, the people's court shall support it.

five

Add shareholders who have cancelled their registration without liquidation as the executed party

Article 21: If a company, as the subject of enforcement, cancels its registration without liquidation, resulting in the company being unable to carry out liquidation, and the applicant for enforcement applies to change or add shareholders of a limited liability company, directors and controlling shareholders of a joint stock limited company as the subject of enforcement, and assumes joint and several liability for the company's debts, the people's court shall support it.

2、 How to add shareholders as executed persons

1. It is recommended to communicate with the executing judge before applying for an addition, as different courts may have different handling methods;

2. After the court decides to terminate the execution procedure of the case, an application for adding the executed person shall be submitted to the court. Some courts may directly submit the application to the presiding judge of the execution case, while others may need to submit application materials to the execution filing window;

3. If submitting materials directly to the presiding judge of the execution case, it may only be necessary to submit an application for adding the executed person. If submitting application materials to the execution filing window, in addition to submitting the application for adding the executed person, it may also be necessary to submit the applicant's subject information, effective judgment documents, the final execution ruling of the execution case, and other identification materials.

4. After submitting the application, the court will conduct an examination, notify the respondent to defend, and then issue a ruling on whether to agree to the addition.

3、 Other ways to protect rights and interests

1. Consider whether to sue the shareholders together and assume joint or supplementary liability during the litigation stage;

2. If some courts do not support adding shareholders as the executed party during the execution stage, they may consider filing a separate lawsuit to demand that shareholders bear responsibility.

After listening to Lawyer Yang Wuquan's interpretation, every colleague felt that they had benefited greatly. Thank you very much for Lawyer Yang Wuquan's sharing today. We look forward to learning more useful knowledge through Denghu Classroom!