The second-instance civil judgment of a bankruptcy-related dispute between a company in Zhejiang and Yu
Cause of action: Disputes related to bankruptcy
Case No.: (2024) Zhe 03 Min Zhong No. 1708
Published: 2024-06-27
Intermediate People's Court of Wenzhou City, Zhejiang Province
Civil Judgments
(2024) Zhe 03 Min Zhong No. 1708
Appellant (plaintiff in the original trial): Zhejiang XX Complete Electrical Appliance Co., Ltd.
Legal representative: Zhu XX, general manager of the company.
Entrusted litigation agent: Zhang Jianyi, lawyer of Zhejiang Tianjing Law Firm.
Entrusted litigation agent: Hu Xiangjie, lawyer of Zhejiang Tianjing Law Firm.
Appellee (defendant in the original trial): Yu X A.
Appellee (defendant in the original trial): Yu Mouyi.
Appellee (defendant in the original trial): Yu X C.
Entrusted litigation agent: Wei Binghai, lawyer of Zhejiang Chiming Law Firm.
Appellee (defendant in the original trial): Cai XX.
The third party of the original trial: the manager of a company A in Yueqing City.
Person in charge: Jiang XX.
Entrusted litigation agent: Lin Da, lawyer of Beijing Deheng (Wenzhou) Law Firm.
In the case of bankruptcy-related disputes between the appellant Zhejiang XX Complete Electrical Appliance Co., Ltd. (hereinafter referred to as XX Company) and the appellees Yu X A, Yu X B, Yu X C, Cai XX and the administrator of a company A in Yueqing City, the third party of the original trial, they were dissatisfied with the civil judgment of the People's Court of Yueqing City, Zhejiang Province (2023) Zhe 0382 Min Chu No. 9245 and appealed to this court. After the case was filed on March 25, 2024, this court formed a collegial panel in accordance with the law, and heard the case in open court on April 17, 2024. Zhang Jianyi, the entrusted agent ad litem of XX Company, Wei Binghai, the entrusted agent ad litem of Yu X C, and Lin Da, the entrusted agent ad litem of the manager of a company A in Yueqing City, participated in the litigation in court, and Yu X A, Yu X B, and Cai XX refused to appear in court without a legitimate reason after being summoned by this court in accordance with law, and this court tried the case in absentia in accordance with law. The case is now closed.
XX Company's appeal request: 1. Change the judgment to Yu X A, Yu X B, and Yu X C to pay the administrator of a company A in Yueqing City 36,884,401.45 yuan in compensation;2. Change the judgment that Yu X A is liable for the above amount within the limit of 3,977,200 yuan, Yu X C is liable for the above amount within the limit of 3,011,400 yuan, and Cai XX is liable for the above amount within the limit of 3,011,400 yuan. Facts and Reasons: The trial court found that the facts were unclear and the law was improperly applied. 1. Yu X A, Yu X B, and Yu X C shall be liable for the debts of a company A in Yueqing City. According to the Civil Ruling, No. 7 No. 1 of the Court of First Instance (2017) Zhe 0382 Po No. 7, on July 20, 2017, the administrator of a company A in Yueqing City filed an application with the court of first instance, claiming that a company A in Yueqing City had not submitted account books, and the debtor had no property to pay off bankruptcy expenses and common debts, nor did it provide enterprise account books, resulting in the inability to liquidate. Accordingly, the Yueqing court ruled to declare a company A in Yueqing City bankrupt and terminate the bankruptcy procedure. Yu is a shareholder, executive director and legal representative of a company in Yueqing City; Yu X C is a supervisor and business manager of a company A in Yueqing City, and Yu X B is one of the only two shareholders of a company A in Yueqing City, and is the management personnel of a company A in Yueqing City, and they all have the obligation to hand over the company's financial account books to the manager and cooperate with the manager to liquidate the company; Yu X A, Yu X C, and Yu X B also failed to hand over the financial account books to the administrator before the administrator's notice, the creditors' meeting was convened, and the company's bankruptcy was terminated, and there was a causal relationship between their negligence in handing over the financial account books to the administrator and the inability to ascertain the debtor's property status, and their behavior had obviously damaged the interests of the creditors of a company A in Yueqing City. Article 118 of the Minutes of the National Conference on the Trial of Civil and Commercial Cases by Courts stipulates that if the debtor's relevant personnel do not cooperate with the liquidation and the debtor's property status is unclear, the debtor shall bear the corresponding civil liability. 2. Yu X A, Yu X C, and Cai XX shall be liable for compensation within the scope of the amount of the failure to perform the capital contribution obligation. 1. According to the evidence provided by XX company, it is proved that on April 27, 2010, Yu XX, the legal representative of a company B in Jiangxi, deposited RMB 10 million in the capital verification account of a company in Yueqing City at the bank counter, and on the 29th of the same month, the same person transferred 10 million yuan from the capital verification account to the account of a company in Yueqing City, and at the same time transferred the 10 million yuan to an account B in Jiangxi, proving the fact that Yu X A, Yu X C, and Cai XX evaded the registered capital. 2. Yu X C admitted that the registered capital was actually paid by a company A in Yueqing City, and he was only responsible for cooperating with the signature and handling the procedures for changing the funds, which was sufficient to prove that Yu X C obtained the company's equity without paying the corresponding consideration and made false capital contributions. Therefore, regardless of whether the behavior of Yu X A, Yu X C and Cai XX is a withdrawal of registered capital or a false capital contribution, there is a situation of failure to perform the obligation of capital contribution. According to paragraphs 1 to 3 of Article 13 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 creditor of a company requests a shareholder who has not fulfilled or has not fully performed its capital contribution obligation to bear supplementary liability for the part of the company's debts that cannot be paid off within the scope of unpaid capital and interest, the people's court shall support it; Where shareholders who have not fulfilled or have not fully performed their capital contribution obligations have already borne the above-mentioned liabilities, and other creditors make the same request, the people's court will not support it. Therefore, Yu X A, Yu X C, and Cai XX should each bear supplementary liability for the debts of a company A in Yueqing City within the limits of 3.9772 million yuan, 3.0114 million yuan, and 3.0114 million yuan for failing to fulfill their capital contribution obligations.
Yu X C argued that the first-instance judgment found that Yu X C did not belong to the "relevant personnel" as provided for in Article 15 of the Enterprise Bankruptcy Law, did not have the obligation to cooperate with the liquidation, and did not need to bear the liability for compensation, and the facts were clear and the law was correctly applied. The relevant persons referred to in Article 15 of the Enterprise Bankruptcy Law and Article 118, Paragraph 3 of the Minutes of the Ninth People's Republic of China refer to the legal representative of the enterprise, and may include the financial management personnel and other business management personnel of the enterprise upon the decision of the people's court. Although Yu Mou C served as a supervisor of the company when it was bankrupt and liquidated in Yueqing City, he did not have the responsibility of operating and managing the company, and was not the company's financial management personnel and business management personnel. Company XX did not submit any evidence to prove that Yu X C possessed and managed the property, seals, account books, important documents and other materials of a company A in Yueqing City, or actually participated in the operation and management of a company A in Yueqing City, and the people's court did not decide that it had the obligation to cooperate with the liquidation, so Yu X C was not a relevant person as prescribed by law, and did not have the obligation to cooperate with the liquidation, and did not need to bear the liability for compensation. 2. The first-instance judgment found that Yu X C had fulfilled all of his capital contribution obligations, that there was no evasion of capital contributions or false capital contributions, and that he did not need to bear the relevant liability for defective capital contributions, that the facts were clear and that the law was correctly applied. In the first instance, the bank details and capital verification report of a company A in Yueqing City submitted by Yu Mou C proved that the capital contribution of 3.2764 million yuan subscribed by Yu Mou C on April 27, 2010 had been fully paid in place and had been verified by an accounting firm. Although the money used for capital verification was quickly transferred to a company B in Jiangxi after entering the account of a company A in Yueqing City, the evidence provided by the transfer records, special VAT invoices, accounting vouchers, product delivery lists, and special VAT invoice details obtained from the Yueqing Municipal Taxation Bureau is sufficient to prove that the two companies have a long-term sales contract relationship, and there were huge transactions of tens of millions of yuan in that year. XX Company is unable to provide evidence to prove that the funds involved in the case have been withdrawn and are in the possession or control of Yu X C, and shall bear the legal consequences of failing to provide evidence. The civil judgment of Wenzhou Intermediate People's Court (2022) Zhe 03 Min Zhong No. 3732 and the civil judgment of Yueqing Court (2021) Zhe 0382 Min Chu No. 3951 did not determine that Yu Mou C had withdrawn capital contributions. In addition, the balance sheet of a company in Yueqing City, which was obtained from the Yueqing Municipal Taxation Bureau in the first instance, for the period of December 2013 and December 2014, all showed that the opening balance and closing balance of the paid-in capital were both 10.88 million yuan, indicating that within one year before and after the transfer of Yu's equity in February 2014, the paid-in capital of a company in Yueqing City was 10.88 million yuan, and there was no false capital contribution, and the issue of the source of funds mentioned by XX company did not affect the effectiveness of the capital increase. It does not change the fact that a company A in Yueqing City has actually received the capital increase. Article 13 of the Judicial Interpretation III of the Company Law does not apply to this case. Therefore, Yu Mou C has fulfilled all the capital contribution obligations, and there is no evasion of capital contribution and false capital contribution, and there is no need to bear the legal responsibility for defective capital contribution. 3. Although Yu X C has no objection to the first-instance judgment's determination that he does not need to be liable, he has objections to the other individual determinations and application of law in the first-instance judgment, and requests that it be corrected in accordance with law. 1. This case is a case of additional distribution of bankruptcy property after the conclusion of bankruptcy proceedings, and the provisions of Article 123 of the Enterprise Bankruptcy Law shall apply. 2. On the issue of the statute of limitations. First of all, this case is a bankruptcy-related case, and when the three-year statute of limitations stipulated in the Civil Code conflicts with the two-year exclusion period stipulated in Article 123 of the Enterprise Bankruptcy Law, the relevant provisions of the bankruptcy procedure should be applied first, that is, the statute of limitations in this case should be two years. When Company XX filed the lawsuit on August 7, 2019, the statute of limitations had expired. Secondly, even if the statute of limitations is three years, XX Company filed a lawsuit on August 7, 2019, which only has the effect of interrupting the statute of limitations for the 4,334,598.16 yuan it has already compensated, and does not lead to the interruption of the statute of limitations of Yueqing Branch of Shanghai Pudong Development Bank and Wenzhou Light Source Electric Co., Ltd. Within three years after the conclusion of the bankruptcy proceedings, the creditors Shanghai Pudong Development Bank Yueqing Branch and Wenzhou Light Source Electric Co., Ltd. did not file a lawsuit to demand that the relevant personnel bear the liability for compensation, and the statute of limitations for the two creditors had expired. Finally, even if the statute of limitations is three years, the RMB 4,334,598.16 that has not yet expired is essentially a bankruptcy estate used for additional distribution, and is still subject to article 123 of the Enterprise Bankruptcy Law, and should still be rejected because it has not been filed within two years after the conclusion of the bankruptcy proceedings.
Yu X A, Yu X B, and Cai XX did not make a defense.
The manager of a company A in Yueqing City stated that he agreed to the appeal request of XX company.
XX Company filed a lawsuit with the court of first instance and requested: 1. Order Yu X A, Yu X B, and Yu X C to pay the principal of 29,380,843.45 yuan to the manager of a company A in Yueqing City. Interest is 9,860,428.46 yuan, totaling 39,241,271.91 yuan;2. Yu X A is liable for the above amount within the limit of 3.9772 million yuan, Yu X C is liable for the above amount within the limit of 3.0114 million yuan, and Cai XX is liable for the above amount within the limit of 3.0114 million yuan.
The court of first instance found the facts: Qingtian Company C was registered and established on December 31, 1994, and the registered capital at the time of establishment was 880,000 yuan. On November 24, 2004, the name of the company was changed to a company in Yueqing City. On April 28, 2010, the registered capital of the company was changed to 10.88 million yuan, of which the capital contribution of Yu Mou A was changed from 350,000 yuan to 4.3272 million yuan, the capital contribution of Yu Mou C was changed from 265,000 yuan to 3.2764 million yuan, and the capital contribution of Cai XX was changed from 265,000 yuan to 3.2764 million yuan. According to the capital verification report, as of April 27, 2010, a company in Yueqing City has received a total of 10 million yuan of new registered capital paid by all shareholders, after the capital increase, Yu A contributed 4.3272 million yuan, accounting for 39.772% of the registered capital, Yu C contributed 3.2764 million yuan, accounting for 30.114% of the registered capital, and Cai XX contributed 3.2764 million yuan, accounting for 30.114% of the registered capital. On February 21, 2014, Yu Mou C and Yu Mou A signed the "Equity Transfer Agreement", stipulating that Yu Mou C would transfer 30.11% of the equity of a company in Yueqing City (the transfer price was 3.2764 million yuan) to Yu Mou A. On February 21, 2014, Cai XX and Yu Mouyi signed the "Equity Transfer Agreement", stipulating that Cai XX would transfer 30.11% of the equity of a company A in Yueqing City (the transfer price was 3.2764 million yuan) to Yu Mouyi. On March 13, 2014, the shareholders of a company A in Yueqing City were changed to Yu A and Yu B, of which Yu A contributed 7.6036 million yuan, accounting for 69.886% of the registered capital, and Yu B contributed 3.2764 million yuan, accounting for 30.114% of the registered capital. On April 7, 2017, the court of first instance issued the (2017) Zhe 0382 Po Shen No. 9 Civil Ruling in accordance with the law, ruling to accept the bankruptcy liquidation application of Yueqing XX Copper Co., Ltd. against a company A in Yueqing City. On April 20, 2017, the court of first instance issued the (2017) Zhe 0382 Po No. 7 Decision, appointing Beijing Deheng (Wenzhou) Law Firm as the administrator. On July 21, 2017, the court of first instance issued the (2017) Zhe 0382 Po No. 7 Civil Ruling, confirming that a company A in Yueqing City still owed a total of 39,241,271.91 yuan of ordinary claims to the Yueqing Branch of Shanghai Pudong Development Bank, Wenzhou Yueqing Branch of China Merchants Bank Co., Ltd., and Wenzhou Light Source Electric Co., Ltd. On the same day, the court of first instance rendered the (2017) Zhe 0382 Po No. 7-1 Civil Ruling, ruling that: 1. declaring a company A in Yueqing City bankrupt; 2. ending the bankruptcy proceedings of a company A in Yueqing City. On January 3, 2018, a company A in Yueqing City was approved and cancelled by the Yueqing Municipal Market Supervision and Administration Bureau. It was also ascertained that on September 17, 2015, the court of first instance rendered the (2015) Wen Le Shang Chu Zi No. 914, 915, 916, 917, 918, and 919 civil judgments, ruling that a company A in Yueqing City should repay the advance of the bank acceptance bill and the principal of the loan of the Yueqing branch of the Shanghai Pudong Development Bank totaling 17,736,540.36 yuan and the corresponding overdue interest, and ruled that XX company, a company B in Jiangxi, Zhejiang Wancheng Copper Technology Company, Yu Mou A bears joint and several liabilities for the above debts within the scope of their respective guarantees (of which XX Company is jointly and severally liable for the above debts within the maximum amount of 11 million yuan agreed in the contract number ZB9012201300000255 the "Maximum Guarantee Contract"), and after assuming responsibility, it has the right to recover from a company A in Yueqing City. The acceptance fee for the above six cases totaled 182857 yuan, and the preservation fee totaled 15,000 yuan, all of which were borne by the five defendants in the above cases. After the judgments of the above six cases take effect, they will enter the enforcement stage. In August 2018, XX Company signed the "Installment Repayment Agreement" with the Yueqing Branch of Shanghai Pudong Development Bank, which stipulates that: within 3 working days of signing the agreement, the Yueqing Branch of Shanghai Pudong Development Bank shall immediately deduct the deposit deposited by XX Company in the Yueqing Branch of Shanghai Pudong Development Bank; 2. From the month of signing the agreement, XX Company shall pay 330,000 yuan to the Yueqing Branch of Shanghai Pudong Development Bank before the 25th of the end of each quarter until the maximum guarantee amount is 11 million yuan. As of December 23, 2023, XX Company has paid 7,904,975.16 yuan to the Yueqing Branch of Shanghai Pudong Development Bank in accordance with the agreement, and paid a total of 389623 yuan in court litigation fees and enforcement fees. 2. After being notified, Yu Moujia has not handed over the account books, documents and other materials of a company A in Yueqing City to the manager of a company in Yueqing City. 3. Up to now, a company A in Yueqing City has no property available for repayment. 4. On August 3, 2023, XX Company sent the "Zhejiang XX Complete Electrical Appliance Co., Ltd. on Individual Creditors on the Amount of Litigation Letter" to the Yueqing Branch of Shanghai Pudong Development Bank, Wenzhou Yueqing Branch of China Merchants Bank Co., Ltd., and Wenzhou Light Source Electrical Appliance Co., Ltd., which stated the amount of the lawsuit filed by XX Company, and informed the creditors that if they have any objections to the amount of the lawsuit filed by XX Company, they need to submit a written reply within 5 working days after receiving the letter. Shanghai Pudong Development Bank Yueqing Branch and Wenzhou Light Source Electric Co., Ltd. did not submit opinions to XX Company within the time limit specified by XX Company. China Merchants Bank Co., Ltd. Wenzhou Yueqing Sub-branch provided XX Company with the (2021) Zhe 03 Min Zhong No. 6197 Civil Judgment. 5. On October 25, 2023, the administrator of a company A in Yueqing City sent the "Letter of Consultation on the Bankruptcy Liquidation Case of a Company A in Yueqing City" to the Yueqing Branch of Shanghai Pudong Development Bank, Wenzhou Yueqing Branch of China Merchants Bank Co., Ltd., and Wenzhou Light Source Electric Co., Ltd., which stated the situation and amount of the lawsuit filed by XX Company, and informed the creditors that if they have any objection to the situation and amount of the lawsuit filed by XX Company, they need to submit it in writing within 5 days after receiving the letter, and if they do not reply within the time limit, they will be deemed to have no objection. The Yueqing Branch of Shanghai Pudong Development Bank and Wenzhou Light Source Electric Co., Ltd. did not raise an objection to the administrator within the time limit specified by the administrator of a company A in Yueqing City. On October 25, 2023, China Merchants Bank Co., Ltd. Wenzhou Yueqing Branch issued a statement to a company A in Yueqing City, which stated that in the bankruptcy liquidation case of a company A in Yueqing City, it was confirmed that the creditor's rights of Wenzhou Yueqing Branch of China Merchants Bank Co., Ltd. were 2,356,870.46 yuan (principal of 1,379,717.5 yuan and interest of 977,152.96 yuan), and the above claims have been repaid by the guarantor Yueqing XX Copper Co., Ltd. Later, the manager of a company in Yueqing City notified Yueqing XX Copper Co., Ltd. to declare its creditor's rights, but Yueqing XX Copper Co., Ltd. has not declared its claims to the manager of a company in Yueqing City. 6. On August 7, 2019, the court of first instance filed and accepted the case of a dispute over the liability of shareholders of XX Company and Yu X A, Yu X B, Yu X C and Cai XX for harming the interests of the company's creditors, and issued a civil ruling (2019) Zhe 0382 Min Chu No. 8292-1 on July 14, 2020, ruling to reject the lawsuit of XX Company. Dissatisfied, Company XX appealed. On December 23, 2020, the Wenzhou Intermediate People's Court rendered the (2020) Zhe 03 Min Zhong No. 4674 Civil Ruling, ruling to revoke the civil ruling of the court of first instance (2019) Zhe 0382 Min Chu No. 8292-1 and ordering the court of first instance to hear the case. After trial, the court of first instance rendered the (2021) Zhe 0382 Min Chu No. 3951 Civil Judgment on December 31, 2021, rejecting all the litigation claims of XX Company. Dissatisfied, Company XX appealed. On August 16, 2022, the Wenzhou Intermediate People's Court rendered the (2022) Zhe 03 Min Zhong No. 3732 Civil Judgment, rejecting the above and upholding the original judgment.
The court of first instance held that the focus of the dispute in this case was: 1. whether Yu X A, Yu X B, and Yu X C were liable for damages due to the failure to cooperate with the bankruptcy liquidation obligations of a company A in Yueqing City, resulting in the unclear property status of a company in Yueqing City; 2. Whether the subject of the litigation of XX Company is qualified; 3. Whether the qualifications of the manager of a company A in Yueqing City are qualified as the subject of litigation; 4. Whether Yu X A, Yu X C, and Cai XX have evaded capital contributions or made false capital contributions; 5. Whether the statute of limitations has expired in this case. First of all, on the issue of whether Yu X A, Yu X B, and Yu X C need to bear the liability for damages caused by the unclear property status of a company A in Yueqing City due to their failure to cooperate with the bankruptcy liquidation obligations of a company A in Yueqing City. Article 15 of the Enterprise Bankruptcy Law of the People's Republic of China stipulates that: "From the date on which the ruling of the people's court to accept the bankruptcy application is served on the debtor to the date of the conclusion of the bankruptcy proceedings, the relevant personnel of the debtor shall undertake the following obligations: (1) properly keep the property, seals, account books, documents and other materials in their possession and management; (2) Conduct work on the basis of the requirements of the people's courts and managers, and truthfully answer inquiries; (3) Attend the creditors' meeting as an observer and truthfully answer the creditors' inquiries; (4) Without the permission of the people's court, they must not leave their place of residence; (5) Shall not be newly appointed as directors, supervisors, or senior managers of other enterprises. "Relevant personnel" as used in the preceding paragraph refers to the legal representative of an enterprise; Upon the decision of the people's court, it may include the financial management personnel and other business management personnel of the enterprise. "Combined with the bankruptcy liquidation case of a company A in Yueqing City, Yu Moujia, as the legal representative of the company, has the obligation to cooperate with the liquidation in accordance with the law, but he did not perform the obligation to cooperate with the liquidation to the administrator during the bankruptcy liquidation of a company A in Yueqing City, resulting in the administrator's inability to fully ascertain the property status of a company A in Yueqing City, resulting in the inability of a company in Yueqing City to fully liquidate, and its negligence in performing its statutory obligations has damaged the legitimate rights and interests of creditors. The Reply of the Supreme People's Court on How to Deal with Cases of Creditors Applying for Bankruptcy Liquidation of Debtors whose whereabouts are unknown or whose property status is unclear stipulates that: "If the relevant personnel of the debtor fail to perform their statutory obligations, the people's court may pursue their corresponding legal liabilities in accordance with the relevant laws and regulations; Where their conduct makes it impossible to liquidate or causes losses, and the relevant rights holder sues to request that they bear corresponding civil liability, the people's court shall support it in accordance with law. Therefore, Yu Moujia should bear the corresponding liability for damages, and the scope of compensation should be the total amount of unpaid ordinary claims in the undisputed creditor's rights table of a company A in Yueqing City, which was confirmed by the court of first instance. The creditor China Merchants Bank Co., Ltd. Wenzhou Yueqing Branch admitted that its claims against a company in Yueqing City had been repaid by the guarantor Yueqing XX Copper Co., Ltd., and Yueqing XX Copper Co., Ltd. had not declared its claims so far after being notified by the administrator of a company in Yueqing City. Therefore, the Wenzhou Yueqing Branch of China Merchants Bank Co., Ltd. should deduct the claim of 2,356,870.46 yuan enjoyed by a company A in Yueqing City, that is, the amount of compensation to be compensated by Yu A is 36,884,401.45 yuan (39,241,271.91 yuan - 2,356,870.46 yuan). XX Company did not submit evidence to prove that Yu X B and Yu X C possessed and managed the company's property, seals, account books, documents and other materials, and in the trial of the bankruptcy case of a company A in Yueqing City, the court did not decide to require Yu X B and Yu X C to bear the corresponding obligation to cooperate, so Yu X B and Yu X C do not belong to the "relevant personnel" stipulated in Article 15 of the Enterprise Bankruptcy Law of the People's Republic of China, and do not have the obligation to cooperate with the liquidation, that is, XX Company's request that Yu X B and Yu X C bear the liability for compensation has no factual and legal basis and is not supported. Secondly, on the issue of whether the subject of litigation of Company XX is qualified. In this case, Company XX enjoyed the rights of a creditor against a company in Yueqing City because it repaid part of the money of the Yueqing Branch of a company in Yueqing City on behalf of a company in Yueqing City, and therefore, in the case that the administrator of a company in Yueqing City did not claim the liability for damages caused by the unclear property status of a company in Yueqing City due to the failure of relevant personnel to cooperate with the bankruptcy liquidation obligations of a company in Yueqing City, it could file a lawsuit on behalf of all creditors as an individual creditor after consulting the opinions of other creditors on the amount of the lawsuit or the resolution of the creditors' meetingThat is, the subject of the litigation of XX Company is qualified, but the property recovered by XX Company in this case should be included in the property of a company A in Yueqing City and disposed of in accordance with the law. Third, on the issue of whether the subject of litigation of the manager of a certain company in Yueqing City is qualified. Since it is claimed that the compensation obtained by the bankrupt company due to the failure of relevant personnel to cooperate with the liquidation obligation and the unclear property status of the bankrupt company shall be included in the property of the bankrupt enterprise, when individual creditors file a lawsuit, the bankrupt enterprise shall be listed as a third party and the administrator shall be listed as the litigation representative, and when the bankrupt enterprise is deregistered in accordance with the law, the administrator shall be listed as the third party. Article 122 of the Enterprise Bankruptcy Law of the People's Republic of China stipulates that "the administrator shall terminate the performance of his duties on the day after the completion of the deregistration. However, there is an exception for litigation or arbitration pending. "As the actual manager of the property and affairs of the bankrupt enterprise, the administrator is fully responsible for the relevant affairs of the bankrupt enterprise, and there is a pending lawsuit in a company A in Yueqing City, and the court of first instance has not issued a legal document to the administrator to terminate the performance of his duties in the bankruptcy case of a company A in Yueqing City, so the administrator of a company A in Yueqing City should still continue to perform his duties. Because a company A in Yueqing City has been deregistered, the manager of a company in Yueqing City should participate in the litigation of this case as a third party, that is, the subject of the lawsuit of the manager of a company in Yueqing City is qualified. Fourth, whether Yu X A, Yu X C, and Cai XX have evaded capital contributions or made false capital contributions. Where there is no evidence or the evidence is insufficient to prove its claim, the party with the burden of proof shall bear the adverse consequences. In this case, Company XX transferred the registered capital of 10 million yuan newly paid by Yu X A, Yu X C and Cai XX to a Jiangxi Company B in the name of a company A in Yueqing City on April 29, 2010, claiming that Yu X A, Yu X C and Cai XX had withdrawn their capital contributions. In this regard, Yu Mou C did not recognize it, and provided the transfer records, VAT special invoices, accounting vouchers, and product delivery orders between a company A in Yueqing City and a company B in Jiangxi Province to prove that a company A in Yueqing City and a company B in Jiangxi had a sales contract relationship. Judging from the evidence provided by both parties, the evidence provided by Yu Mou C is sufficient to prove that a company A in Yueqing City has business dealings with a company B in Jiangxi, and the transfer records provided by Company XX can only prove that on April 29, 2010, a company in Yueqing City paid 10 million yuan in the name of previous payments to a company B in Jiangxi, and it cannot prove that Yu A, Yu C, and Cai XX have evaded capital contributions, so XX Company should bear the adverse consequences of failing to provide evidence, that is, it is a negative consequence of XX Company's information about Yu A, Yu C, Cai XX's claim that there is a withdrawal of capital contributions is not supported. On April 27, 2010, the account of a company A in Yueqing City received an additional registered capital of 10 million yuan, and performed the legal procedures such as capital verification and change of registered capital, and XX company did not provide evidence to prove that a company in Yueqing City was insolvent at the time of the capital increase, so the source of the capital increase did not affect the effectiveness of the capital increase, that is, the relevant claims of XX company that Yu X A, Yu X C, and Cai XX had false capital contributions were not supported. Finally, on the issue of whether the statute of limitations has expired in this case. The statute of limitations for filing a request to a people's court for the protection of civil rights is three years. If an individual creditor knows or should know that the administrator does not file a lawsuit for compensation, it shall file a lawsuit within three years after the completion of the distribution of the bankruptcy estate (the bankruptcy proceedings shall be concluded in the case of non-proletarian cases). On July 21, 2017, the court of first instance ruled to terminate the bankruptcy proceedings of a company A in Yueqing City, and on August 7, 2019, XX company filed a dispute over the liability of shareholders for harming the interests of the company's creditors, demanding that Yu A and Yu B repay their money, and that Yu C and Cai XX bear civil liability within the scope of the withdrawal of capital contributions. Although the amount claimed by the shareholder is different from this case, the essence of the lawsuit is the same as this case, so the act of filing a lawsuit on August 7, 2019 led to the interruption of the statute of limitations, and the statute of limitations should be recalculated from the end of the lawsuit, that is, the relevant defense of Yu X C that the statute of limitations has exceeded in this case is not adopted. After being lawfully summoned by the court of first instance, Yu X A, Yu X B, and Cai XX refused to appear in court without a legitimate reason, and the case was rendered in absentia in accordance with law. Accordingly, in accordance with Articles 15 and 122 of the Enterprise Bankruptcy Law of the People's Republic of China, the Reply of the Supreme People's Court on the Handling of Bankruptcy Liquidation Cases by Creditors of Debtors whose whereabouts are unknown or whose property status is unclear, Articles 188 and 195 of the Civil Code of the People's Republic of China, and Article 147 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows: Yu X A should pay the administrator of a company in Yueqing City a compensation of 36,884,401.45 yuan within 20 days of the effective date of the judgment, and the above amount is included in the property of a company A in Yueqing City. 2. Reject other litigation claims of XX Company. If the obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt for the period of delayed performance shall be doubled in accordance with the provisions of Article 264 of the Civil Procedure Law of the People's Republic of China. The acceptance fee in this case is 238006 yuan, of which 11,784 yuan is borne by XX company and 226222 yuan is borne by Yu Moujia.
During the second-instance trial, none of the parties provided new evidence. After reviewing the evidence provided by the parties to the original trial court, this court confirms the facts found in the original judgment in accordance with law.
This court held that, in accordance with the provisions of paragraph 3 of the Reply of the Supreme People's Court on How to Handle Cases of Creditors Applying for Bankruptcy Liquidation of Debtors whose whereabouts are unknown or whose property status is unclear, if the relevant personnel of the debtor fail to perform their statutory obligations, the people's court may pursue their corresponding legal liabilities in accordance with the relevant laws and regulations; Where their conduct makes it impossible to liquidate or causes losses, and the relevant rights holder sues to request that they bear corresponding civil liability, the people's court shall support it in accordance with law. According to Article 15 of the Enterprise Bankruptcy Law of the People's Republic of China, the above-mentioned "relevant personnel" refers to the legal representative of the enterprise; Upon the decision of the people's court, it may include the financial management personnel and other business management personnel of the enterprise. It can be seen that the scope of entities cooperating with bankruptcy liquidation obligors includes legal representatives, financial management personnel and other business management personnel, and the above-mentioned personnel are required to have the authority to participate in the company's operation and management, financial management, and custody of the company's important documents, so that the administrator can comprehensively investigate the company's assets and liabilities and clean up the company's creditor's rights and debts. As the legal representative of a company A in Yueqing City, Yu Moujia has the obligation to provide account books in the bankruptcy liquidation procedure, and should be a person who cooperates with the bankruptcy liquidation obligor and should bear the corresponding liability for damages. Although Yu X C and Yu X B are respectively supervisors and shareholders of a company A in Yueqing City, the evidence provided by Company XX is not sufficient to prove that Yu X B and Yu X C belong to the management personnel of a company A in Yueqing City as provided for in Article 15 of the Enterprise Bankruptcy Law, and there is no evidence to prove that Yu X B and Yu X C were engaged in management work related to financial accounting books in a company A in Yueqing City, so it cannot be determined that there is a causal relationship between the conduct of Yu X B and Yu X C and the failure of a company A in Yueqing City to liquidate and cause losses to creditors. Now XX Company's claim that Yu X B and Yu X C bear the tort liability of not cooperating with the liquidation obligation and compensating all the creditors of a company A in Yueqing City for corresponding losses lacks factual and legal basis, and this court does not support it.
Regarding whether Yu X A, Yu X C, and Cai XX have evaded capital contributions or made false capital contributions. On April 27, 2010, the account of a company A in Yueqing City received an additional registered capital of 10 million yuan, and performed the legal procedures such as capital verification and change of registered capital. According to the above-mentioned facts ascertained in the first instance, it can be seen that the shareholders of a company A in Yueqing City have fully fulfilled their capital contribution obligations, so it is not improper to determine in the first instance that the source of the capital increase does not affect the effectiveness of the capital increase. Company XX's claim that Yu X A, Yu X C, and Cai XX had false capital contributions was not based on sufficient evidence, and this court did not support it. In this case, although on April 29, 2010, a company in Yueqing City transferred the registered capital of 10 million yuan newly paid by Yu X A, Yu X C and Cai XX to a company B in Jiangxi, Yu X C provided evidence such as transfer records, special VAT invoices, accounting vouchers, and product delivery orders between a company A in Yueqing City and a company B in Jiangxi, which could prove that a company A in Yueqing City had business dealings with a company B in Jiangxi, but Company XX did not provide sufficient rebuttal evidence to prove that Yu X A and Yu X C and Cai XX have withdrawn their capital contributions, and should bear the adverse consequences of not being able to provide evidence, so this court does not support this part of XX Company's claims.
With regard to Yu X C's claim that the statute of limitations had expired in this case, the first-instance trial had already made a finding that it was not accepted in the reasoning part, and although Yu X C mentioned it again in the second-instance defense, he did not appeal on this issue, so this issue does not fall within the scope of the second-instance trial, and this court will not comment on it.
In summary, the grounds and requests of XX Company's appeal are not sustained, and this court rejects them. Accordingly, in accordance with Article 177, Paragraph 1 (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The second-instance case acceptance fee of 226222 yuan shall be borne by the appellant, Zhejiang XX Complete Electrical Appliance Co., Ltd.
This judgment is final.
Presiding Judge Bai Hailing
Judge Ye**
Judge Choi Cheuk-sen
June 24, 2024
Acting Clerk: Li Hao
Enclosure:
1. Warnings for the consequences of failure to perform on judgments and punishments
1. [Notice of Pursuit of Criminal Responsibility] Where the obligor refuses to report property, falsely reports property, violates an order restricting consumption, refuses to vacate the house or land involved in the case, or has an act of resistance such as illegally disposing of sealed, seized, or frozen property, making false lawsuits, or refusing to hand over the subject matter or property of enforcement, the court will fine or detain them as appropriate; where the circumstances are serious, it shall be transferred to the public security organs for investigation of criminal responsibility. Under certain conditions, the rights holder may pursue the criminal responsibility of the perpetrator through private prosecution.
2. [Obligation to Report Assets, Notification of Consequences of Refusal to Perform] During the enforcement period, the obligor must truthfully report the assets to the enforcing court, and if they refuse to do so and do not perform, the court will, depending on the severity of the circumstances, take measures such as inclusion in the list of the untrustworthy, restrictions on entry and exit, fines, and detention; If the obligor reports the property falsely, the court will impose a fine or detention; If the unit is the person subject to enforcement, it may, depending on the circumstances, at the same time fine or detain the unit's legal representative, principal responsible person, directly responsible personnel for influencing the performance of debts, and actual controllers.
3. [Notification of Obligation to Deliver Vehicles] The obligor shall transfer the vehicles and other movable assets under his name to the enforcement court. If they refuse to hand it over, the court will impose a fine or detention; If there is a legitimate reason why the transfer cannot be made, the obligor shall report in writing to the enforcing court the ownership, possession and use of movable property such as vehicles.
4. [Notice of Restriction of Consumption and Compulsory Enforcement Measures] After the case is filed and enforced, the people's court will take measures against the obligor to restrict high consumption and consumption that is not necessary for life or business (including prohibiting taking airplanes, high-speed rail with G prefixes, spending in hotels with a star rating or above, traveling and vacationing, and children attending high-fee private schools, etc.), and has the right to take compulsory measures such as sealing, seizing, freezing, auctioning, and selling the obligor's property.
5. [Notification of Enforcement Measures for Special Status]Where obligors have special statuses such as members of the Communist Party of China, people's congress deputies, members of the Chinese People's Political Consultative Conference, or public employees, and refuse to perform their obligations after enforcing a case filing, the people's courts will report the untrustworthy conduct to their unit, discipline supervision departments, and organization and personnel departments, and strictly employ punishment and sanction measures.
6. [Notice of Interest on Delayed Performance of Debts and Enforcement Costs] After the case is filed for enforcement, in addition to the debts determined in the effective legal documents, the obligor shall also pay double the interest on the debt or the delay in performance during the period of delayed performance until the date when the debts are repaid, and shall bear the enforcement fees and the application and enforcement fees, assessment fees, and storage fees arising from the enforcement procedures.
7. [Notification of Compulsory Enforcement Credit Taints] Where the obligor fails to automatically perform within the time period specified in the legal documents, once the case is filed for enforcement, the obligor's information on the subject of enforcement will become a credit stain and be recorded in the case file by the People's Bank of China's credit reporting system and all levels of credit information platform.
2. Implement risk notification
1. [Application for Preservation and Provision of Clues] The right holder may apply for preservation measures against the obligor's property during the course of litigation, and investigate and understand the obligor's property status and whereabouts as much as possible, and actively provide the court with clues on the obligor's property and whereabouts, so as to improve the efficiency of property preservation and service, and increase the actual enforcement effect of effective legal documents.
2. [Notice of Application for Bankruptcy Rights] If the right holder finds that the enterprise legal person is unable to pay off the debts due and the assets are insufficient to pay off all the debts or obviously lacks the ability to pay off, it may directly apply for bankruptcy reorganization or bankruptcy liquidation to the court where the enterprise is domiciled.
3. [Notice of Time Limit for Application for Enforcement by Right Holder] If the obligor fails to perform the content determined in the effective legal document on time, the right holder shall apply to the people's court for enforcement within two years from the date on which the legal document takes effect or the date on which the performance period determined by the legal document expires.
4. [Notification of the Risk of Failure to Enforce] The application for enforcement has enforcement risks, and the right holder should be aware of the enforcement risks. If the obligor has lost the ability to perform the obligations set forth in the legal documents, and the obligee is unable to provide evidence of the obligor's property, it may lead to the inability to enforce the case in place. This kind of consequence is unwilling for the court and the right holder to occur, but it is a continuation of the commercial risk and transaction risk of the parties in the enforcement stage, and the right holder should be aware of and understand the risk that such enforcement cannot be performed.
Note: The obligor refers to the debtor and the person subject to enforcement who shall perform the content of the effective legal documents; The right holder refers to the creditor and the person applying for enforcement who enjoys the rights conferred by the effective legal documents.