How to make shareholders who have not contributed capital lose their shareholder qualifications

Article 16 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) stipulates that if a shareholder fails to perform or fails to fully perform its capital contribution obligations or withdraws its capital contribution, the company makes corresponding reasonable restrictions on its shareholder rights such as the right to claim for profit distribution, the right to preemptive subscription of new shares, and the right to claim for the distribution of residual property in accordance with the articles of association or the resolution of the shareholders' meeting, and the shareholder requests that the restriction be found invalid. The people's court did not support it. 2. It is proposed to set up a clause on the loss of rights of shareholders in the articles of association of the company.

The so-called loss of shareholders' rights means that the company can urge shareholders who are negligent in fulfilling their capital contribution obligations to pay their capital contributions within a certain period of time, and if they still fail to do so within the time limit, they will lose their shareholder rights.

After the promulgation and implementation of the new "Company Law", the requirements for registered capital were relaxed, and the authorized capital system was replaced by the authorized capital system, which greatly prospered the market economy. Although the registered capital of the company is no longer verified when the company is registered, and there is no need for shareholders to actually pay capital contributions, it does not mean that shareholders' capital contributions can always be in place. When establishing a company, the shareholders may clearly stipulate in the articles of association the time and amount of capital contributions and the liability for compensation to the company if they fail to pay the full amount on time, but it is inevitable that there will be unfair phenomena such as shareholders of the company who have not paid their capital contributions, and they can enjoy the rights of shareholders who have not paid their capital contributions in full.

How to make shareholders who have not contributed capital lose their shareholder qualifications

1. It is proposed to set up a clause in the articles of association to restrict the rights of shareholders who have contributed capital with defects.

Article 16 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) stipulates that "if a shareholder fails to perform or fails to fully perform its capital contribution obligations or withdraws its capital contribution, and the company makes corresponding reasonable restrictions on its shareholder rights such as the right to claim profit distribution, the right to preemptively subscribe for new shares, and the right to claim for the distribution of residual property in accordance with the articles of association or the resolution of the shareholders' meeting, the people's court shall not support the shareholder's request to find the restriction invalid." ”

Therefore, the articles of association of the company may set up a clause restricting the rights of shareholders who have contributed capital with defects, stipulating that shareholders who fail to perform their capital contribution obligations in accordance with the law shall only have the right to vote and the right to claim profit distribution according to their paid-in capital contributions, and shall not enjoy the right of first refusal to subscribe for new shares and the right to distribute the remaining property until they have fulfilled their capital contribution obligations in accordance with the articles of association.

2. It is proposed to set up a clause on the loss of rights of shareholders in the articles of association of the company.

The so-called loss of shareholders' rights means that the company can urge shareholders who are negligent in fulfilling their capital contribution obligations to pay their capital contributions within a certain period of time, and if they still fail to do so within the time limit, they will lose their shareholder rights.

Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) stipulates that "if a shareholder of a limited liability company fails to perform its obligation to make capital contributions or withdraws all of its capital contributions, and fails to pay or return the capital contributions within a reasonable period of time after being urged to do so by the company, the company dissolves the shareholder's shareholder qualification by resolution of the shareholders' meeting, and the shareholder's request for confirmation that the termination is invalid, shall not be supported by the people's court." In the circumstances provided for in the preceding paragraph, the people's court shall explain at the time of judgment that the company shall promptly go through the statutory capital reduction procedures or have other shareholders or third parties pay the corresponding capital contributions. Where the company's creditors request the relevant parties to bear the corresponding liabilities in accordance with Articles 13 or 14 of these Provisions before going through the statutory capital reduction procedures or other shareholders or third parties pay the corresponding capital contributions, the people's court shall support it.

Therefore, the articles of association of the company may provide a clause of "shareholders lose their rights", according to the above provisions, shareholders shall be disqualified through the reminder procedure and the resolution procedure of the shareholders' meeting, and attention should be paid to the proportion of voting rights of the resolution of the shareholders' meeting to disqualify shareholders and the voting rights of shareholders who have contributed capital without defects.

Shareholders are individuals or units that contribute capital to a limited liability company or shares, and enjoy the right to income from assets, participate in major decision-making and select managers by virtue of their capital contributions, and are the investors of the company and the equity holders of the company. Therefore, the most basic obligation of shareholders is the obligation to make capital contributions. In practice, it may arise that a shareholder fails to pay the capital contribution on time or in full after signing the capital contribution agreement, and the situation that the shareholder does not make a capital contribution can be handled in the following ways:

1. If the shareholder fails to pay the capital contribution within a reasonable period of time after being urged by the company, the shareholder of the company may convene a shareholders' meeting to disqualify the shareholder who has not contributed capital; 2. Other shareholders who have paid their capital contributions in full as agreed may require the shareholders who do not contribute capital to bear the liability for breach of contract, and at the same time require the shareholders to perform their capital contribution obligations; 3. Reasonable restrictions shall be made on the rights of shareholders who have not contributed capital, such as the right to claim for profit distribution, the right to preemptively subscribe for new shares, and the right to request for the distribution of residual property, through the shareholders' meeting or the articles of association of the company.

[Legal basis].

Article 17 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) If a shareholder fails to perform or fails to fully perform the obligation of capital contribution or withdraws the capital contribution, and the company makes corresponding reasonable restrictions on the shareholder's rights such as the right to claim for profit distribution, the right to preemptively subscribe for new shares, and the right to request for the distribution of residual property in accordance with the company's chapter and letter bureau or the resolution of the shareholders' meeting, the people's court shall not support the shareholder's request to find the restriction invalid. Article 18 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) provides that if a shareholder of a limited liability company fails to perform its capital contribution obligation or withdraws all of its capital contribution, and fails to pay or return the capital contribution within a reasonable period of time after being urged to do so by the company, the company dissolves the shareholder's shareholder qualification by resolution of the shareholders' meeting, and the shareholder's request for confirmation that the termination is invalid, the people's court shall not support it.

Legal analysis: If the shareholder fails to pay the capital contribution within a reasonable period of time after being urged by the company to pay the capital contribution, the company's shareholders may convene a shareholders' meeting to disqualify the shareholders who have not contributed capital; Other shareholders who have paid their capital contributions in full in accordance with the agreement may require the shareholders who do not contribute capital to bear the liability for breach of contract, and at the same time require the shareholders to perform their capital contribution obligations.

Legal basis: Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China Article 17 Where a shareholder fails to perform or fails to fully perform its capital contribution obligations or withdraws its capital contribution, the company makes corresponding reasonable restrictions on its shareholder rights such as the right to claim for profit distribution, the right to preemptively subscribe for new shares, and the right to request for the distribution of residual property in accordance with the articles of association or the resolution of the shareholders' meeting, and the shareholders' request is found to be invalid, the people's court shall not support it.

Legal analysis: 1. You can first negotiate with shareholders who have not contributed capital. urging them to fulfill their obligations to contribute capital as soon as possible; 2. Other shareholders can pursue the liability for breach of contract of shareholders who have not contributed capital, and shareholders who have contributed capital can also request the shareholders to fulfill their capital contribution obligations through litigation; 3. Shareholders who have not contributed capital can be required to transfer the equity in their names internally.

According to the provisions of Chinese law, shareholders should pay the capital contribution in full and on time.

Legal basis: Article 71 of the Company Law of the People's Republic of China provides that shareholders of a limited liability company may transfer all or part of their equity to each other. Article 28 Shareholders with the obligation to make capital contributions shall pay in full and on time the amount of capital contributions subscribed by them as stipulated in the articles of association of the company.

If the shareholder makes a monetary contribution, the full amount of the monetary contribution shall be deposited into the bank account opened by the limited liability company; Where a capital contribution is made with non-monetary property, the formalities for the transfer of property rights shall be completed in accordance with law.