The company establishment dispute is different from the initiator liability dispute, which is easy to be confused in practice, and distinguishing between them is of great significance for determining dispute jurisdiction. In this paper, we will compare the disputes between the establishment of the company and the liability disputes of the promoters, so as to guide the enterprises to prevent the relevant risks in the operation.

ONE、Relevant specification

《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)》

Article 1 A person who signs the articles of association for the purpose of establishing a company, subscribes to the company for capital contributions or shares, and performs the duties of establishing a company shall be deemed to be a promoter of a company who includes all the shareholders of the limited liability company at the time of establishment, including the shareholders at the time of establishment of the limited liability company. The article judicial interpretation domain. According to its provisions, the criteria and conditions for identifying the promoter include: performing the duties of establishing the company + signing the articles of association + subscription for capital contribution or shares. The above three conditions are indispensable, and only when they are simultaneously met can they be identified as sponsors.

Two、Practical application

1. The Company Law and other relevant laws and regulations stipulate strict legal conditions and procedures for the establishment of the company. In order to make the company meet the above-mentioned legal conditions, the initiator must perform a series of relevant legal acts, such as signing contracts to raise funds, renting venues, and purchasing office supplies. Company establishment disputes are legal disputes between the company and external creditors caused by the performance of relevant contracts in the process of company establishment.

2. The liability of the initiator refers to the liability that the initiator should bear to the subscribers when the company cannot be established during the establishment of the company, or the liability that the initiator should bear when the interests of the company are damaged due to the negligence of the initiator. In the sense of procedural law, whether the initiator needs to bear responsibility is a dispute over the liability of the initiator.

3. The First Intermediate People's Court of Beijing made a distinction between the above two in judicial practice in the civil judgment No. 6897 of Beijing 01 Mindu (2016) : A promoter liability dispute is a dispute between the promoters of a company over how to share the debts and expenses arising from the act of setting up a company, or whether the promoter is liable to the company or to others for its act of setting up a company; The company establishment dispute refers to the dispute about claims and debts arising from foreign transactions in the name of the company after the company is established.

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Three、Relevant case

The Intermediate People's Court of Dongguan, Guangdong Province concluded in 2015 on the "Wang Mou and Xu Mou promoter liability dispute case" the court heard that it was not a promoter liability dispute, but a company establishment dispute.

On May 3, 2014, Xu Mou and Wang Mou signed a shareholder cooperation agreement of the company, and the two sides agreed to invest 430,000 yuan each to jointly invest in the establishment of Hanfugong Company, the business location is in Tangxia Town, Dongguan City, and the legal representative is Xu Mou. Wang Mou has, in accordance with the matters agreed upon in the agreement, transferred 430,000 yuan of funds into Xu mou's bank account and delivered to Xu mou in cash for many times, all fulfilling the obligations agreed upon in the company's shareholder cooperation agreement. However, it has been 13 months since the signing of the company's shareholder cooperation agreement, Seo not only refused to fulfill the company's shareholder cooperation agreement regarding the establishment of a new company and other obligations, but also used Wang's 50 percent stake in Hanbugong barbecue restaurant and a large amount of liquidity as the assets of the Dongguan City Hanyu Wind Company, which Xu invested and controlled. Xu refused to fulfill the fundamental obligations of the company's shareholder cooperation agreement, resulting in the company's shareholder cooperation agreement purpose can not be realized, has constituted a fundamental breach of contract, resulting in Wang Mou huge economic losses, Wang Mou in order to protect their legitimate rights and interests, to the court, request for order: 1, terminate Wang Mou and Xu Mou signed on May 3, 2014, the company's shareholder cooperation agreement; 2. Xu compensates Wang for the direct economic loss of 430,000 yuan; 3. Xu pays a penalty of 38,700 yuan to Wang; 4. Xu shall bear all litigation costs of the case.

一 、After hearing, the court of second instance held that the two parties signed the shareholder cooperation agreement, which is the expression of the true intentions of the two parties, and the court confirmed it in accordance with law. According to the shareholder cooperation agreement, Hanfugong Limited liability Company is planned to be established, the two parties signed the articles of association, Wang also paid part of the capital, constituting the promoter in the sense of the company law, so this case is a liability dispute of the promoter, supporting the plaintiff's appeal.

The act of establishing a company is a legal act of creating a company and obtaining the status of a legal person. This kind of behavior is the common behavior of the promoters for the purpose of establishing the company, and it is the common behavior of several people with the same purpose. In the following articles, we will continue to analyze the many disputes that may result from irregularities in the company establishment process. Hillhouse Law Firm will give full play to its professional advantages and effectively help enterprises prevent relevant legal risks; We will also provide enterprises with more forms and more abundant legal service projects according to the development of the industry and the actual situation of enterprises, and guide enterprises to make scientific decisions and standardize development.