Lawyers often encounter such a situation in practice. To set up a company, shareholders have to make great efforts, so the amount of registered capital subscribed is very high. However, when they cannot subscribe for contingent foreign debts, they want to reduce their capital. Capital reduction, normal capital reduction, aims to reduce the scale of operation or stop operating projects. One kind of capital reduction is only from the amount of industrial and commercial registration; One way to reduce capital is that it is actually put back into the pockets of shareholders. The above two results are quite different, and the latter is a minefield. For example: failure to notify creditors, failure to clear company debts, illegal capital reduction, etc. If the former is only deducted from the amount of industrial and commercial registration, then generally speaking, from the perspective of administrative norms, it is a fine.
See Article 204 of the Company Law. If a company fails to notify or announce its creditors in accordance with the provisions of this Law when it merges, divides, reduces its registered capital or liquidates, the company registration authority shall order it to make corrections and impose a fine of not less than 10,000 yuan but not more than 100,000 yuan. If it is the latter, illegally reducing capital and putting the reduced capital back into the pockets of shareholders, then it involves withdrawing capital contribution, and shareholders may be held accountable. That is to say, shareholders are added as executors in litigation, and shareholders are liable to creditors within the scope of registered capital flight.
See paragraph 2 of article 14 of Judicial Interpretation of Company Law (III). If the creditor requests the shareholder who withdraws his capital contribution to bear supplementary liability for the outstanding part of the company's debt within the scope of principal and interest of the withdrawn capital contribution, and other shareholders, directors, senior managers or actual controllers who assist in withdrawing his capital contribution bear joint liability, the people's court shall support it; The shareholders who have withdrawn their capital contribution have assumed the above responsibilities, and if other creditors make the same request, the people's court will not support it.
Why are there different processing results? Because the latter actually uses the company's capital reduction procedure to withdraw capital contribution, which leads to the reduction of the company's debt property and directly harms the interests of creditors. The former, the net assets are not flowing. Only by canceling part of the equity or reducing the amount per share to make up for the loss did it not affect the company's solvency. In other words, capital reduction does not necessarily bring shareholders into litigation: but if the funds are illegally taken into shareholders' pockets from the company's pockets, there is no escape.
After thinking about the above, let's review the correct posture of reducing capital. See Article 177 of the Company Law. When a company needs to reduce its registered capital, it must prepare a balance sheet and a list of assets. The company shall notify the creditors within ten days from the date of making the resolution to reduce the registered capital, and make an announcement in the newspaper within thirty days. Creditors have the right to require the company to pay off debts or provide corresponding guarantees within 30 days from the date of receiving the notice, or within 45 days from the date of announcement if they have not received the notice.
See paragraph 2 of Article 3 1 of the Regulations on the Administration of Company Registration. Where a company reduces its registered capital, it shall apply for registration of change after 45 days from the date of announcement, and submit the relevant certificates of the company's announcement of the company's reduction of registered capital in newspapers and the explanation of the company's debt settlement or debt guarantee.