Is the withdrawal of capital by a corporate legal person a withdrawal of capital?

The withdrawal of capital by the legal person of the company is not a withdrawal of capital, but a reasonable and legal method should be adopted.

The newly implemented Company Law in March 2014 implemented the capital injection method of the subscription system, and deleted the act of "shareholders transferring capital contributions into the company's account and then transferring them out" from the provisions on the withdrawal of capital contributions, but in practice, such acts will still be recognized as "other acts of withdrawing capital contributions without legal procedures" and belong to the withdrawal of capital contributions. In the reply of the Supreme People's Court (2014) Min Er Ta Zi No. 19, the Supreme People's Court stated:

The Provisions on Several Issues Concerning the Application of the Company Law (III) issued by the Supreme People's Court on February 20, 2014 no longer regard the transfer of capital contributions to the company's account and then transfer out after capital verification is no longer a typical act of shareholders withdrawing capital contributions as expressly stipulated, but it should still fall within the category of "other acts of withdrawing capital contributions without legal procedures" as stipulated in Article 12, Paragraph 4 of the above-mentioned judicial interpretation, and still constitute a withdrawal of capital contributions.

In fact, there has been a clear explanation in the company law whether the company can withdraw its capital during the operation period, and the shareholders of the company cannot withdraw the capital contribution at will. If a shareholder withdraws capital without authorization, and if the registered capital is withdrawn after the establishment of the company, the company, shareholders and creditors shall bear the corresponding legal responsibility. Therefore, shareholders are not allowed to withdraw their capital at will.

The reason why the Company Law makes such a provision is actually a kind of protection for the legal operation and active operation of the company and the debtor of the company. After the establishment of the company, if the shareholders are allowed to withdraw their capital at will, it is easy to cause instability in the company's operation and will also damage the legitimate interests of the debtor.

The way we use to withdraw is legal, and we can do it in the following 3 ways:

1.Equity Transfer.

2.Reduce the registered capital of the company and cancel the shares.

3.Ask the company to buy back the shares.

To sum up:1Once the shareholders of the company invest the funds in the company, the invested funds belong to the company's assets.

If a shareholder wants to withdraw from the company, he must go through certain procedures, and the company's assets must be liquidated, and the equity ratio will be distributed according to the results of the liquidation. For the act of withdrawing capital contributions, not only must bear the corresponding civil liability and administrative liability, but may also be punished by criminal liability.

2.There is no difference in accounting for equity transfer. However, in terms of tax treatment, the tax implications of natural shareholders and corporate shareholders are different.

Both parties need to pay stamp duty according to 5/10,000 of the amount recorded in the contract.

Divestment is possible, but it is subject to certain legal procedures. This involves the change of legal person and the change of shareholders, and it is necessary to go through the formalities with the industrial and commercial and tax departments, and if necessary, it may also be necessary to issue an audit report. Therefore, it is illegal for you to give money directly from the company's registered capital, which will bury hidden dangers for the company's future development.

In order to do business safely in the future, don't be afraid of trouble, and go through the legal procedures clearly, otherwise there will be endless troubles!

You can't transfer it directly, you must follow the normal procedures for withdrawal! And at the same time, we will change the legal person and shareholders! This has to go to your local industrial and commercial bureau, tax, and organization to change!

If you have opened an account and the person you are withdrawing is a legal person, you will also need to change your bank details and seal. In fact, to put it bluntly, almost all of them have to change, and if you don't go through the normal procedures, you will be very troublesome! If the annual inspection of industry and commerce, people will say that you are evading funds!

Hurry up and change

The withdrawal of capital by the legal person of the company is a legitimate act, and the new capital verification report issued by your accounting firm can go to the industrial and commercial department to go through the change procedures.

There is no legal provision on whether the legal person of the company withdraws capital contributions and other shareholders can request the withdrawal of shares. If a shareholder withdraws his or her capital contribution after making a capital contribution, it constitutes an infringement of the independent property rights of Gaobi Company, and the shareholder or promoter who has withdrawn the capital contribution shall bear tort liability to the company, and the shareholder or promoter who has paid the capital contribution in full may require the shareholder or promoter who has withdrawn the capital contribution to bear the liability for breach of contract and has no right to demand the withdrawal of shares.

Legal basisArticle 200 of the Company Law.

If the promoters and shareholders of the company withdraw their capital contributions after the establishment of the company, the company registration authority shall order them to make corrections and impose a fine of not less than 5% but not more than 15% of the amount of capital contributions withdrawn.

Withdrawing capital is an ineffective early game. Withdrawal of capital contributionsWithdrawal of capital contribution refers to the fact that after the company's capital verification and registration, the shareholder secretly withdraws the capital contribution, but still retains the identity of the shareholder and the original amount of capital contribution, which is a fraudulent illegal act. It not only infringes on the company's interests, but also may infringe on the interests of third parties outside the company.

In this case, the shareholder or promoter who has paid the capital contribution in full may require the shareholder or promoter who has withdrawn the capital contribution to bear the liability for breach of contract in accordance with the provisions of the company's articles of association.

Company Law of the People's Republic of China

Article 200. If the promoters or shareholders of a company withdraw their capital contributions after the establishment of the company, the company registration authority shall order them to make corrections and impose a fine of not less than 5% but not more than 15% of the amount of capital contributions withdrawn by the company.

1. What are the conditions to be met to constitute the crime of capital evasion?

To constitute this crime, one of the following circumstances must be present:

1. Withdrawing capital contributions, causing direct economic losses to the company, shareholders and creditors with a cumulative amount of 100,000 yuan to more than 500,000 yuan;

2. Although the above amount standard is not reached, there are any of the following circumstances:

1) Causing the company to become insolvent or unable to operate normally;

2) The promoters and shareholders of the company conspire to withdraw their capital contributions;

3) Having received two or more administrative penalties due to the withdrawal of capital contributions, and then withdrawing capital contributions;

4) Using the funds obtained from the withdrawal of capital contributions to carry out illegal activities.

If one of the above conditions is not met, the sentence cannot be imposed for this crime.

2. How to punish the crime of evading registered capital?

1. A natural person who commits the crime specified in this Article shall be sentenced to fixed-term imprisonment of not more than five years or, and/or a fine of not less than 2 percent but not more than 7 percent of the amount of capital contributions withdrawn.

2. Where a unit commits this crime, the unit shall be fined, and the person in charge and other directly responsible personnel who are directly responsible for it shall be sentenced to fixed-term imprisonment of not more than five years, or.

3. The legal basis for the punishment of the crime of evading capital contributions.

Chapter 12 of the Company Law of 2006 on Legal Liability.

Article 199 Whoever, in violation of this Law, falsely declares the registered capital, submits false materials, or adopts other fraudulent means to conceal important facts to obtain company registration, the company registration authority shall order it to make corrections and impose a fine of not less than 5% but not more than 15% of the amount of the falsely declared registered capital on the company that falsely declares its registered capital; Companies that submit false materials or use other fraudulent means to conceal important facts shall be fined not less than 50,000 yuan but not more than 500,000 yuan; and where the circumstances are serious, revoke the company's registration or revoke the business license.

Article 200 If the promoters or shareholders of a company make false capital contributions and fail to deliver or fail to deliver the monetary or non-monetary assets used as capital contributions on time, the company registration authorities shall order them to make corrections and impose a fine of not less than 5 percent but not more than 15 percent of the amount of the false capital contributions.

Article 201 Where the founders or shareholders of a company withdraw their capital contributions after the establishment of the company, the company registration authority shall order them to make corrections and impose a fine of not less than 5 percent but not more than 15 percent of the amount of capital contributions withdrawn.

There is no clear legal provision on whether the legal person of the company withdraws capital contributions and other shareholders can request the withdrawal of shares. If a shareholder withdraws his or her capital contribution after making a capital contribution, it constitutes an infringement of Gaobi's independent property right of the company's legal person, and the shareholder or promoter who has withdrawn the capital contribution shall bear tort liability to the company, and the shareholder or promoter who has paid the capital contribution in full may require the shareholder or promoter who has withdrawn the capital contribution to bear the liability for breach of contract and has no right to demand the withdrawal of shares.

Legal basis] Article 200 of the Company Law.

If the promoters and shareholders of the company withdraw their capital contributions after the establishment of the company, the registration authority of Qi Jieqin Company shall order them to make corrections and impose a fine of not less than 5% but not more than 15% of the amount of capital contributions withdrawn.

According to the provisions of the relevant laws of China, shareholders cannot withdraw their capital contributions after making capital contributions, and if shareholders withdraw their capital contributions through equity transfer and other trial work after subscribing to the new capital increase agreement, it does not belong to the withdrawal of capital contributions.

Company Law of the People's Republic of China

Article 35 After the establishment of a company, shareholders are not allowed to withdraw their capital contributions.

Article 71 The shareholders of a limited liability company may transfer all or part of their equity to each other.

The transfer of equity by a shareholder to a person other than the shareholder shall be subject to the consent of more than half of the other shareholders. Shareholders shall notify other shareholders in writing to solicit consent for their equity transfer, and if other shareholders do not reply within 30 days from the date of receipt of the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the rights of the transferred shares; If you do not purchase it, you will be deemed to have agreed to the transfer.

For the equity transferred with the consent of the shareholders, under the same conditions, other shareholders have the right of first refusal. If two or more shareholders claim to exercise the right of first refusal, they shall negotiate to determine their respective purchase ratios; If the negotiation fails, the right of first refusal shall be exercised in accordance with the proportion of their respective capital contributions at the time of transfer.

Where the articles of association of the company have other provisions on the transfer of equity, such provisions shall prevail.

Article 178:When a limited liability company increases its registered capital, the capital contribution subscribed by the shareholders for the new capital shall be implemented in accordance with the relevant provisions of this Law on the payment of capital contributions for the establishment of a limited liability company.

When the shares are issued to increase the registered capital, the shareholders subscribe for the new shares, and the relevant provisions of the payment of shares are implemented in accordance with the relevant provisions of this law.

1. What are the manifestations of capital withdrawal?

Withdrawal of capital contribution refers to the behavior of the promoters and shareholders of the company who withdraw their capital contributions after the establishment of the company's capital verification, but retain the identity of the shareholders and the original amount of capital contributions. Since the new company law allows the registered capital to be paid in installments, the withdrawal of capital contribution only refers to the funds that have actually been contributed, and there is no possibility of withdrawal of the part subscribed by shareholders but not yet contributed capital. Note the difference between withdrawing capital contributions and false capital contributions, which refers to situations where shareholders have never made capital contributions.

In practice, the withdrawal of capital contributions is mainly manifested in the following ways:

1. When setting up a company, use the bridge loan as the registered capital, and after the company is incorporated, the bridge loan will be partially or fully withdrawn;

2. Falsifying false underlying transaction relationships, such as the company and shareholders in the transaction of the company, and the company transfers part of the shareholders' registered capital to the shareholders;

3. Withdraw part or all of the non-monetary part of the registered capital, such as buildings, plants, machinery and equipment, industrial property rights, professional technology, site use rights, etc., after the capital verification is completed;

4. Failing to withdraw the statutory provident fund or making false accounting statements to inflate profits, and withdrawing capital contributions in a short period of time by distributing profits;

5. Withdraw the monetary capital contribution and make up the account with other non-monetary parts that have not been audited and evaluated and the actual value is significantly lower than its declared value, so as to achieve the purpose of withdrawing the capital contribution;

6. Withdraw capital contributions in disguised form by providing mortgage guarantees to shareholders.