【 Referee’s gist 】
According to Article 17 of the Provisions of the Supreme People’s Court on Several Issues Concerning Alteration and Addition of Parties in Civil Execution, "As an enterprise legal person subject to execution, the property is insufficient to pay off the debts determined by the effective legal documents, and the shareholders, investors or promoters who are jointly and severally liable for the capital contribution in accordance with the provisions of the Company Law who apply for the executor to change or add the capital contribution that has not been paid or fully paid are the executors, and they are within the scope of unpaid capital contribution.abide by the lawThe people’s court shall support those who bear the responsibility. "and Article 32 states that" if the respondent or the applicant is not satisfied with the change, additional ruling or rejection of the application made by the enforcement court in accordance with the provisions of Article 14, paragraph 2, and Articles 17 to 21 of these Provisions, he may bring a suit of execution objection to the enforcement court within 15 days from the date when the ruling is served. " In this case, the applicant has the right to file a lawsuit against execution objection.
Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Company Law of People’s Republic of China (PRC) (III) Article 19, paragraph 2, "Creditors of the company"The creditor’s rights have not passed the limitation period [According to this judicial interpretation, the standard should be that the creditor’s right itself has not passed the limitation period.. Because the creditor’s rights should be rejected after the limitation of action, the creditor’s rights entering the execution procedure do not belong to it. Therefore, in a certain sense, it is not necessary to consider this issue in the trial of the case in which the outsider objects.】In accordance with the provisions of Paragraph 2 of Article 13 and Paragraph 2 of Article 14 of these Provisions, it requests the shareholders who fail to perform or fully perform their capital contribution obligations or withdraw their capital contribution to bear the liability for compensation, and the defendantThe people’s court shall not support the shareholders’ defense on the grounds that the obligation of capital contribution or the obligation of returning capital contribution exceeds the limitation period of action.. "The executor of this case has filed a lawsuit within the limitation of action, and his creditor’s rights have not exceeded the limitation of action. The shareholders who have not fully fulfilled their capital contribution obligations can’t claim that this case has already exceeded the limitation of action for retrial.
[judgment document]
The Supreme People’s Court, People’s Republic of China (PRC)
Civil ruling
(2019) Supreme People’s Application4450number
Applicant for retrial (defendant in the first instance and appellee in the second instance): Zhang Rong, male, born on October 13th, 1961, Han nationality, living in Xifeng District, Qingyang City, Gansu Province.
Applicant for retrial (defendant in the first instance and appellee in the second instance): Gansu Zhonghui Real Estate Development Co., Ltd. Domicile: Room 405, Unit 2, Building 5, Xihuayuan, Mars Street, Qilihe District, Lanzhou City, Gansu Province.
Legal Representative: Dong Yang, general manager of this company.
Agent ad litem: Feng Jiangji, male, employee of this company.
Respondent (plaintiff of first instance and appellant of second instance): Lanzhou Chengguan Sub-branch of China Construction Bank Co., Ltd. Domicile: No.59 Jinchang North Road, Chengguan District, Lanzhou City, Gansu Province.
Person in charge: Li Wei, president of this branch.
Authorized Agent: Huang Guoyi, lawyer of Gansu Xicheng Law Firm.
Defendant in the original trial: Zhang Yi, male, born on May 5, 1960, Han nationality, living in Luohu District, Shenzhen City, Guangdong Province.
The retrial applicants Zhang Rong and Gansu Zhonghui Real Estate Development Co., Ltd. (hereinafter referred to as Zhonghui Real Estate Company) refused to accept the civil judgment (2019) Gan Minzhong No.86 made by the Higher People’s Court of Gansu Province, and applied for retrial with the respondent Lanzhou Chengguan Sub-branch of China Construction Bank Co., Ltd. (hereinafter referred to as CCB Chengguan Sub-branch) and the defendant Zhang Yi in the original trial. Our college formed a collegial panel to review the case according to law, and the review has now ended.
Zhang Rong’s request for retrial:1. Cancel the civil judgment of Gansu Higher People’s Court (2019) Gan Minzhong No.86 according to law; 2. The case was brought to trial according to law, and the prosecution of CCB Chengguan Sub-branch was rejected; 3. The first-instance case acceptance fee, preservation fee and second-instance case acceptance fee shall be borne by CCB Chengguan Sub-branch.
Facts and reasons:The lawsuit of execution objection filed by CCB Chengguan Sub-branch does not meet the legal acceptance conditions stipulated in Article 306 of the Supreme People’s Court’s Interpretation on the Application of the Civil Procedure Law of People’s Republic of China (PRC) (hereinafter referred to as the Interpretation of Civil Procedure Law), and the lawsuit should be dismissed according to law.
Chengguan Sub-branch of CCB is the executor of the execution case in the lawsuit of execution objection in this case. It applied to the people’s court to add Zhonghui Real Estate Company (outsider) as the executor, and the people’s court has directly rejected its application. When the CCB Chengguan Sub-branch applied for the addition, Zhonghui Real Estate Company did not raise any objection to the execution, and the people’s court did not decide to suspend the execution. However, the CCB Chengguan Sub-branch directly filed a lawsuit against the execution objection based on the decision to reject the addition of the executor, which obviously did not meet the preconditions stipulated in Article 306 of the Interpretation of the Civil Procedure Law. According to the law, even if the people’s court accepts the case, it should reject its prosecution according to law, not its claim, and it should not support its claim illegally.
Zhonghui Real Estate Company’s retrial request:1. Cancel the civil judgment of Gansu Higher People’s Court (2019) Gan Minzhong No.86 according to law; 2. The case was brought to trial according to law, and the prosecution of CCB Chengguan Sub-branch was rejected; 3. The first-instance case acceptance fee, preservation fee and second-instance case acceptance fee shall be borne by CCB Chengguan Sub-branch.
Facts and reasons:The lawsuit of execution objection filed by CCB Chengguan Sub-branch does not meet the statutory acceptance conditions, so it should be dismissed according to law.
Chengguan Sub-branch of CCB is the executor of the execution case in the lawsuit of execution objection in this case. It applied to the people’s court to add Zhonghui Real Estate Company as the executor, and the people’s court has directly rejected its application. When the CCB Chengguan Sub-branch applied for the addition, Zhonghui Real Estate Company did not raise an execution objection, nor did the people’s court decide to suspend the execution. However, the lawsuit of execution objection directly filed by CCB Chengguan Sub-branch based on the decision to reject the addition of the person subjected to execution obviously did not meet the preconditions stipulated in Article 306 of the Interpretation of the Civil Procedure Law. According to the law, even if the people’s court accepts the case, it should reject its prosecution according to law, not its claim, and it should not support its claim illegally.When China Construction Bank Chengguan Sub-branch added Zhonghui Real Estate Company as the respondent for enforcement, Gansu Zhonghui Engineering Equipment and Materials Co., Ltd. (hereinafter referred to as Zhonghui Materials Company) had been liquidated and cancelled according to law, and its legal person qualification had been eliminated.China Construction Bank Chengguan Sub-branch added Zhonghui Real Estate Company as the executor, which denied the legal effect of the liquidation system in the Company Law of People’s Republic of China (PRC) (hereinafter referred to as the Company Law), and this case added Zhonghui Real Estate Company as the executor in the execution stage without trial procedure. Zhonghui Real Estate Company thought that substantive judgment should not be made on such issues in the execution procedure.
On December 2, 2013, Zhonghui Materials Company was liquidated and cancelled according to law, and its legal person qualification has been eliminated. According to Article 188 of the Company Law, the effect of liquidation of a company is to terminate the existing legal relations of the company at present, and the purpose of eliminating the company’s main qualification will be achieved after the liquidation is submitted for confirmation. Zhonghui Materials Company made a resolution of shareholders’ meeting on July 5, 2013, set up a liquidation group, and published a liquidation announcement in relevant newspapers. During the statutory announcement period, Zhonghui Materials Company completed the liquidation, produced a Liquidation Report, and completed relevant procedures such as company cancellation, which fully complied with the company law.Chengguan Sub-branch of China Construction Bank has given up the declaration of creditor’s rights during the announcement period, but after the main qualification of Zhonghui Materials Company was eliminated, Zhonghui Real Estate Company was added as the executor, which was unfounded in the law.. Whether Zhonghui Real Estate Company will be added as the person to be executed in this case should be determined by the court’s substantive trial, and CCB Chengguan Sub-branch should sue Zhonghui Real Estate Company to the court, instead of adding Zhonghui Real Estate Company as the person to be executed directly in the execution procedure without substantive trial.
The responsibility of CCB Chengguan Sub-branch to investigate Zhonghui Real Estate Company’s false contribution as a shareholder should be limited by the statute of limitations, and this case has already exceeded the statute of limitations.. It is not the exception of the Supreme People’s Court’s Provisions on Several Issues Concerning the Application of the Limitation of Action in the Trial of Civil Cases that the creditors of a company request the shareholders who fail to perform or fully perform their capital contribution obligations or withdraw their capital contribution to bear the liability for compensation. Therefore, the limitation of limitation of action should be applied to such lawsuits.
The addition of Zhonghui Real Estate Company as the executor in Chengguan Sub-branch of CCB does not conform to the provisions of Article 17 of the Provisions of the Supreme People’s Court on Several Issues Concerning Alteration and Addition of Parties in Civil Execution. In this case, adding Zhonghui Real Estate Company to CCB Chengguan Sub-branch as the executor should meet the following conditions: 1. The executor has no property to pay off debts; 2. The added object is the shareholder; 3. There is the fact that the capital contribution is untrue; 4. The liability assumed is limited liability. According to the liquidation report of Zhonghui Materials Company,The remaining property of Zhonghui Materials Company at the time of cancellation of registration is much larger than the amount of creditor’s rights applied for by CCB Chengguan Sub-branch. According to the above provisions, CCB Chengguan Sub-branch requires additional shareholders to bear the responsibility of false capital contribution, which does not meet the preconditions of this provision..
Zhonghui Real Estate Company is no longer a shareholder of Zhonghui Material Company since 2004, and it has no obligation to contribute when Zhonghui Material Company cancels.. Therefore, it should not be added as the enforcement respondent in the execution stage of this case.
To sum up, Zhonghui Real Estate Co., Ltd. filed a retrial application in accordance with the provisions of Item 6 of Article 200 of the Civil Procedure Law of People’s Republic of China (PRC).
After examination, our hospital believes that,According to Article 17 of the Provisions of the Supreme People’s Court on Several Issues Concerning Alteration and Addition of Parties in Civil Execution, which came into effect on December 1, 2016, "As an enterprise legal person subject to execution, the property is insufficient to pay off the debts determined by the effective legal documents, and the executor is requested to apply for alteration and addition.Shareholders, investors who have not paid or paid their capital contribution in full, or promoters who are jointly and severally liable for the capital contribution according to the provisions of the Company Law, are the persons subjected to execution.The people’s court shall support those who bear the responsibility according to law within the scope of unpaid capital contribution. "and Article 32 states that" if the respondent or the applicant is not satisfied with the change, additional ruling or rejection of the application made by the enforcement court in accordance with the provisions of Article 14, paragraph 2, and Articles 17 to 21 of these Provisions, he may bring a suit of execution objection to the enforcement court within 15 days from the date when the ruling is served. " In this case, it can be seen that the lawsuit of execution objection filed by CCB Chengguan Sub-branch as the applicant is in compliance with the law. Zhang Rong and Zhonghui Real Estate Company’s retrial application claims that the lawsuit of execution objection filed by CCB Chengguan Sub-branch does not meet the statutory acceptance conditions and has no legal basis, so their claims should not be accepted.
Zhonghui Real Estate Company claims that Zhonghui Materials Company does not have the situation that "the property is not enough to pay off the debts determined by the effective legal documents", so it does not meet the requirements stipulated in Article 17 of the Supreme People’s Court’s Provisions on Several Issues Concerning Alteration and Addition of Parties in Civil Execution and should not be added as the person subjected to execution. The court of second instance has found outZhonghui Material Company was deregistered according to law after liquidation in 2013. Zhonghui Real Estate Company and Zhang Yi took over the remaining property after liquidation, and Zhonghui Real Estate Company, Zhang Rong and Zhang Yi all expressed ignorance of the whereabouts of the remaining property during the trial of the second instance.. Accordingly, the court of second instance found that Zhonghui Materials Company’s propertyUnable to pay off(2006) The debt determined in the civil judgment of Lanfamin Erchuzi No.70 has factual and legal basis. Zhonghui Real Estate Company’s claim for retrial cannot be established.
Zhonghui Real Estate Company claims that the investigation of Zhonghui Real Estate Company’s responsibility for false capital contribution as a shareholder by CCB Chengguan Sub-branch has exceeded the limitation of action. We believe that the provisions of the second paragraph of Article 19 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Company Law of People’s Republic of China (PRC) (III), "Where the creditor’s rights of a company have not expired during the limitation of action, and he requests the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations or withdrawn their capital contribution to bear the liability for compensation in accordance with the provisions of Paragraph 2 of Article 13 and Paragraph 2 of Article 14 of these Provisions, the people’s court will not support the defendant’s defense on the grounds that the capital contribution obligation or the capital contribution return obligation has exceeded the limitation of action.. In this case, CCB Chengguan Sub-branch has filed a lawsuit within the limitation of action, and its creditor’s rights have not exceeded the limitation of action, so Zhonghui Real Estate Company’s claim for retrial cannot be established.
Zhonghui Real Estate Company claims that it is no longer a shareholder of Zhonghui Materials Company since 2004, and has no obligation to contribute when Zhonghui Materials Company cancels. Article 18 of the Supreme People’s Court’s Provisions on Several Issues Concerning the Application of the Company Law of People’s Republic of China (PRC) stipulates that "the shareholders of a limited liability company fail to perform or fail to fully perform their capital contribution obligations, and the transferee knows or should know about it. If the company requests the shareholder to perform his capital contribution obligations and the transferee bears joint liability for it, the people’s court shall support it; If the creditors of the company bring a lawsuit to the shareholder in accordance with the second paragraph of Article 13 of these Provisions, and at the same time request the transferee to bear joint and several liability for this, the people’s court shall support it. The people’s court shall support the transferee’s claim for compensation from the shareholder who has not fulfilled or fully fulfilled the investment obligation after assuming the responsibility according to the provisions of the preceding paragraph. However, unless otherwise agreed by the parties. " According to this regulation,Zhonghui Real Estate Company, as the initiator of Zhonghui Materials Company, has not fully fulfilled its capital contribution obligations. Whether it transfers its equity or not, it is still a shareholder of Zhonghui Materials Company, and it cannot be exempted from its capital contribution obligations.. Zhonghui Real Estate Company’s claim for retrial cannot be established.
To sum up, the retrial applications of Zhang Rong and Zhonghui Real Estate Company do not meet the requirements of Item 6 of Article 200 of the Civil Procedure Law of People’s Republic of China (PRC). According to the first paragraph of Article 204 of the Civil Procedure Law of People’s Republic of China (PRC) and the second paragraph of Article 395 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of People’s Republic of China (PRC), the ruling is as follows:
Zhang Rong and Gansu Zhonghui Real Estate Development Co., Ltd. were rejected for retrial.
Presiding judge Wang Dongmin
Judge Ren Xuefeng
Judge Liu Xiaofei
September 25th, 2019
Zhang Hao, assistant judge
Clerk Zhang Li
Source: Today’s Speech Method
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