The special craftsman lawyer said that the case | the shareholders did not fully contribute capital, and the company's creditors sued the shareholders for compensation and were refuted. (2021) Jingmin Shen No. 4928
Tianhong Company is a creditor of Qingdao Shubei Company, and when the debt collection was fruitless, it was found that CITIC Trust was a shareholder of Qingdao Shubei Company, and should pay 33.565 million US dollars, but only about 1.46 million US dollars was actually paid, so Tianhong Company sued CITIC Trust as the plaintiff to bear compensation liability within the scope of unpaid capital contribution.
The essence of CITIC Trust's equity is derived from the trust plan, that is, the trust Shandong Shubei Company and CITIC Trust Company signed the "CITIC-Shusbell Specific Asset Income Right Investment Collective Trust Plan Trust Contract" (the "Trust Contract"). The Trust Contract mainly stipulates that CITIC Trust Company initiated the establishment of a "collective trust plan for the right to an asset income" to raise 500 million yuan through the trust plan, of which 400 million yuan was used to invest in the specific asset income right of the Huangdao Phoenix Bay Project under the name of Qingdao Shubei Company, which was controlled by Shandong Shubei, and Qingdao Shubei Company had the obligation to repurchase the right to the income of the specific asset.
Shandong Shubei Company, as a shareholder of Qingdao Shubei Company, trusted its 50% equity interest in Qingdao Shubei Company to CITIC Trust Company and subscribed for a share of the subordinate beneficiary rights of 110 million yuan of the trust plan. Subsequently, CITIC Trust Company signed a separate Equity Transfer Contract with Shandong Shubei Company in the form of equity transfer, and CITIC Trust became a shareholder of Qingdao Shubei Company, and the share transfer contract stipulated that Shandong Shubei Company would still have the obligation to pay the registered capital (capital amount of US$33.565 million) after it trusted the equity of Qingdao Shubei Company to CITIC Trust Company.
Neither the first and second instance nor the retrial supported Tianhong Company's claim, rejecting its request that CITIC Trust, as a shareholder of the incomplete capital contribution, bear liability for the debts of Qingdao Shubei Company, the main reason being that:
First, Articles 13 and 26 of the Judicial Interpretation of the Company Law protect third parties who rely on the disclosure of the company's capital and deal with the company, so that the nominee shareholders can also be made to assume the obligation of shareholder contribution, regardless of the agreement between them and the actual investors. However, in the circumstances of this case, the "shareholders" who bear supplementary compensation liability in the second paragraph of Article 3 of the Judicial Interpretation of the Company Law should be limited. Moreover, the second paragraph of Article 13 and Article 26 of the Judicial Interpretation of the Company Law regulate the inconsistencies between the subjects of rights and obligations arising from the nominee shareholding agreement between the anonymous shareholder or the actual investor and the nominee shareholder, and there is no clear provision on the circumstances in which the equity transfer resulting from the trust relationship leads to the trustee's shareholding;
Second, China's trust registration system is not perfect, and a unified trust property or trust registration system has not yet been established; at the same time, according to the Beijing Higher People's Court Judgment No. 33, the Trust Contract and the Equity Transfer Contract in this case were terminated on July 5, 2018, and Shandong Shubei Company should receive 50% of the equity of Qingdao Shubei Company held by CITIC Trust Company and go through the corresponding equity change registration procedures. Therefore, in this case, CITIC Trust Company, as the trustee, did not bear the supplementary compensation liability of the shareholders, which was not improper.
To put it simply, it means that CITIC Trust actually holds shares in the trust property investment, in this case, it holds the trust property, and the trust property can isolate the debt, so CITIC Trust does not bear the supplementary compensation liability, which is actually the provision of the Trust Law. However, as far as this case is concerned, CITIC Trust holds shares as a trust investment, but Tianhong Company does not know, according to commercial appearanceism, how does Tianhong's trust interests settle? Moreover, the time point of the generation of trust interests is when Tiantianhong Company and Shubei Company have a transaction, and in this case, the trust contract and the share transfer contract are terminated tomorrow, and Wenhong Company's trust interests are lost tomorrow, and CITIC Trust does not assume responsibility, which seems inappropriate, right?
The above examples are for reference only.
