1、 Problem background

According to the provisions of the third judicial interpretation of the company law, the company may remove the shareholders who have completely failed to fulfill their obligation of capital contribution if they meet the following requirements: (1) the shareholders have failed to fulfill their obligation of capital contribution or withdraw all their capital contributions; (2) After being urged to pay by the company, the company still fails to pay within a reasonable period; (3) The company removes the shareholder's qualification by resolution of the shareholders' meeting.

The "shareholder delisting" system stipulated in this article is only applicable to the serious defective capital contribution of shareholders?? Applicable in case of failure to fulfill the obligation of capital contribution or withdrawal of all capital contributions; When the shareholders have not fully fulfilled their capital contributions, the shareholders of the company shall not be disqualified in the form of a resolution of the shareholders' meeting in accordance with the judicial interpretation III of the company law. Of course, if the articles of association have set up corresponding disposal measures for shareholders who have not fully fulfilled their investment obligations, they can be implemented in accordance with the agreement; However, the company deadlock often occurs when the articles of association have not been agreed. In this case, how should we deal with the shareholders who have not fully fulfilled their investment obligations? We will try to discuss this issue through the analysis of a case of the Supreme Court.

2、 Summary of the case

On may23,2004, yinjiqing, wangxiaoyi, xucuiqin and Wang Feng, the shareholders of Juntai company, held a shareholders' meeting and decided to change the registered capital from 10million yuan to 31.9 million yuan. Yinjiqing's contribution increased from 1.507 million yuan to 14.507 million yuan, with a shareholding ratio of 45.48%. On May 27, 2004, yinjiqing transferred 13million yuan of capital increase to the account of Juntai company. On May 28, he transferred the capital contribution after capital verification.

On october28,2011, Juntai published the announcement of the shareholders' meeting held on November 29 in Dazhong daily. On november29,2011, Juntai company held a shareholders' meeting, which was attended by shareholders Wang Feng, Wang Xiaoyi and xucuiqin, but yinjiqing did not attend. The shareholders' meeting made a resolution:... II. With regard to the problem of RMB 13million in arrears, Wang Feng and xucuiqin shall respectively fulfill the obligation to subscribe the RMB 6.5 million in arrears and enjoy the corresponding rights... The amount of capital contribution and the corresponding equity shall be recorded in the names of Wang Feng and xucuiqin, and the industrial and commercial registration change procedures shall be handled. 3、 On the issue of restricting yinjiqing's shareholders' Rights: (1) confirm that yinjiqing has no right to enjoy and exercise the shareholders' rights related to the equity corresponding to the capital contribution of 13million yuan, including: profit distribution rights, residual property distribution rights, corresponding voting rights and other shareholders' rights related to the equity. The resolution of the shareholders' meeting was not delivered to yinjiqing. On May 20 and 21, 2013, xucuiqin and Wang Feng transferred RMB 6.5 million to Juntai, totaling RMB 13million.

1、 The court of second instance held that the above-mentioned resolutions of the shareholders' meeting were valid. Yinjiqing refused and applied to the Supreme Court for retrial.

3、 Court opinion

The court believes that this case is a dispute over the confirmation of shareholders' qualification, and the reasons for the parties' application for retrial are analyzed as follows:

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2、 On whether xucuiqin and Wang Feng enjoy the equity of Juntai company. According to the facts found out in the original trial, xucuiqin, Wang Feng and wangxiaoyi jointly signed the articles of association and subscribed for capital contributions, registered as shareholders of the company in the company registration authority according to law, and actually exercised the rights of shareholders and assumed obligations. Xucuiqin and Wang Feng transferred RMB 6.5 million to Juntai company respectively according to the resolution of the company's shareholders' meeting, and recognized the fact that Juntai company. Therefore, the original trial found that xucuiqin and Wang Feng had fulfilled their obligation of capital contribution, and had the right to require Juntai company to issue a capital contribution certificate for their respective capital contributions of 6.5 million yuan, record the amount of capital contribution and the corresponding equity in the company's register of shareholders, and order Juntai company to amend the articles of association according to the changes in equity and shareholders, and go through the change registration procedures at the company registration authority. The claim was legitimate and not inappropriate. Yinjiqing had no evidence to overturn the determination, and his corresponding claim was not supported by the court.

3、 On whether the original judgment finds that the resolution of the shareholders' meeting involved in the case is valid without evidence and legal basis. According to the provisions of the first paragraph of 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), a shareholder of a limited liability company fails to fulfill his obligation to make capital contribution or withdraws all his capital contribution, and after the company urges him to make payment or return his capital contribution, he still fails to make payment or return his capital contribution within a reasonable period of time. The company terminates the shareholder's qualification by resolution of the shareholders' meeting, and the shareholder requests to confirm that the termination is invalid, The people's court did not support it. In this case, the fact that yinjiqing withdrew the capital increase did not make up for it after the company's demand. The shareholders' meeting of the company can remove his corresponding equity. The validity of the resolution of the shareholders' meeting of the company shall be recognized. At present, Yin Jiqing has no evidence to prove that there are prohibitive provisions of laws and regulations in the procedures and resolutions of the shareholders' meeting involved in the case, so his corresponding claim is not supported by the court

4、 Borui's view

Based on the above cases, we can draw a conclusion that in the view of the Supreme Court, if a shareholder withdraws part of his capital contribution or fails to fully perform his obligation of capital contribution within the time limit, and fails to return or perform his obligation of capital contribution within a reasonable period after the company's reminder, the company may, in accordance with the principle of corporate autonomy, deprive the shareholder of the equity of the corresponding part of his capital contribution or failure to perform his obligation of capital contribution by means of a resolution of the shareholders' meeting, Even if the relevant mechanism is not clearly set up in the articles of association or other shareholders' agreements, the resolution is legal and effective in the absence of other invalid reasons because it does not violate the prohibitive provisions of the law.