一、 Risk of recovery of unpaid capital contribution disputes

According to the provisions of Article 28 of the Company Law, the shareholders can pay the amount of capital contribution stipulated in the articles of association of the company in full during the registered capital subscription period, and need not pay all the registered capital at the time of establishment of the company. However, according to Article 35 [1] of the Enterprise Bankruptcy Law, after an enterprise enters bankruptcy proceedings, the subscription period of registered capital will accelerate to maturity, that is, no matter how the subscription period is agreed, the shareholder shall pay all the registered capital after the enterprise enters bankruptcy proceedings. For example, Company A is established in 2020 with a registered capital of 1 million yuan, 50% of which is held by Party A and Party B, and the subscription period is 20 years. The 500,000 yuan each subscribed by Party A and Party B can be paid to Company A before 2040. However, if Company A is ruled to accept bankruptcy in 2022, Party A and Party B shall pay all the registered capital to Company A on the date of being ruled to accept bankruptcy. If the bankruptcy representative finds that the registered capital of the enterprise has not been fully paid, it will send a letter to the shareholders or recover it through litigation in accordance with the provisions of Article 35 of the Enterprise Bankruptcy Law.

Common Practice Question: Can a shareholder's claim against the enterprise be offset against the unpaid capital contribution?

According to the provisions of Article 46 (1) [2] of the Judicial Interpretation of the Bankruptcy Law, where a shareholder has claims against the company before the acceptance of bankruptcy, it cannot be offset with the capital contribution payable by the shareholder. For example, shareholder A provides Company A with A loan of 500,000 yuan for the operation of Company A, and after entering bankruptcy proceedings, it should subscribe to Company A for A contribution of 500,000 yuan, and shareholder A cannot claim that the claim of 500,000 yuan to Company A and the contribution of 500,000 yuan are offset each other.

For specific reasons, you can refer to the explanation of Article 3 of Chapter 3 of the Sichuan Provincial High People's Court in the Notice on Issuing the Answers to Several Questions Concerning the Trial of Bankruptcy Cases (Sichuan High Law [2019] No. 90) : "The investment of shareholders to the company forms the property of the company for its independent operation and independent external responsibility, and according to the basic principle of the company's capital strengthening, Shareholders should pay their subscribed capital contribution in full. If shareholders are allowed to offset their bankruptcy claims that should be paid in proportion to the unpaid capital contribution, in fact, shareholders are allowed to contribute less than full capital contribution, which not only violates the principle of capital adequacy, but also damages the interests of all creditors. Therefore, the shareholder of the debtor shall not support the debtor's debt due to non-payment of the debtor's capital contribution or withdrawal of capital contribution and the debtor's claim to offset the debt owed to him."

二、Recover and withdraw the risk of investment disputes

According to the provisions of Article 35 [3] of the Company Law and Article 14 [4] of the Judicial Interpretation of the Company Law, if a shareholder of the company withdraws capital contribution, the company, the shareholders of the Company and other creditors of the Company have the right to ask him to return the principal and interest of the capital contribution withdrawn to the company. After entering bankruptcy proceedings, according to the provisions of Article 22, paragraph 2 [5] of Judicial Interpretation of Bankruptcy Law II, the relevant litigation shall be recovered by the bankruptcy representative on behalf of the company from the shareholders who have withdrawn the capital.

In judicial practice, the common withdrawal of capital contribution situation is mainly that the shareholder's capital contribution is remitted by the company to the shareholder on the day of capital verification or to a third party without any reason, such evidence can be obtained by accessing the company's bank account, and the bankruptcy administrator has the authority to access all the company's bank account statement on behalf of the company.

三、Recover the potential risks of other shareholders, actual controllers, directors and senior executives in the case of unpaid capital contribution or withdrawal of capital contribution

（一）Potential risks of the initiator shareholders and original shareholders in the recovery of unpaid capital contributions

Regarding the potential risks of the initiator shareholders: According to Article 13 [6] of Judicial Interpretation III of the Company Law, if the shareholder fails to perform or fully perform the capital contribution obligation, the insolvency representative has the right to require the initiator shareholders and the defendant shareholders to bear joint and several liabilities. For example, the promoters of Company A are respectively A and B, each subscribing to 50% of the capital contribution, of which A has paid the capital contribution, B has not contributed. After Company A is ruled to accept bankruptcy, the bankruptcy representative shall have the right to require Party B to pay the capital contribution and claim that Party A shall bear joint and several liability for Party B's capital contribution obligation.

About the potential risks of the original shareholders after the transfer of equity: under the registered capital subscription system, the transfer of unpaid-in equity can be divided into two situations: the transfer of equity before the subscription period and the transfer of equity without actual contribution after the subscription period. The latter is the transfer of defective equity rights. According to Article 18 [7] of Judicial Interpretation III of the Company Law, there are clear provisions on the liability for capital contribution. If the assignee knows or should know that the original shareholder has defective capital contribution, the assignee and the original shareholder shall bear joint and several liability within the scope of insufficient capital contribution. [8] However, there are no clear provisions in the current company law and judicial interpretation on how to bear the capital contribution liability of the former, and there are also disputes in practice, which can be roughly divided into the following two situations:

If, at the time of equity transfer, the original shareholder complies with the accelerated expiration of the subscription period at the time of equity transfer, the original shareholder shall still perform the obligation of capital contribution according to law. The original shareholders and the current shareholders are jointly liable for the debts that the company cannot pay off, as detailed in the judgment document (2019) New 0203 No. 961; If at the time of equity transfer, the company is not unable to pay off debts or the original shareholder does not transfer equity to evade the investment obligation, it does not constitute the situation of "transferring equity without performing or fully performing the investment obligation" as stipulated in the judicial interpretation, and it should not bear joint and several liability to the current shareholder. For details, see (2021) Supreme Court Judgment No. 6421. :

（二）Potential disputes between directors and executives in collecting unpaid contributions

According to Article 13 of the Third Judicial Interpretation of the Company Law, if a director or senior executive fails to fulfill his duty of loyalty and diligence, causing a shareholder to fail to perform his duty of capital contribution, the insolvency representative has the right to request him to bear the corresponding responsibility. From the perspective of legal provisions, the liability is not joint and several liability, but tort liability. Tort liability must take into account the causal relationship, that is, whether there is a causal relationship between the directors and senior executives' failure to fulfill the duty of loyalty and diligence and the shareholders' failure to perform the duty of investment. However, from the case "Sant Micro Display Technology (Shenzhen) Co., LTD., Hu Qiusheng liability Dispute Retrial Civil judgment" [(2018) Supreme Famin No. 366] in the first instance, second instance and retrial court's judgment reasons, The court disputes whether the director's passive failure to perform the duty of diligence to recover the shareholder's contribution will inevitably lead to the shareholder's non-performance of the contribution obligation.

In this case, the courts of the first instance, the second instance and the retrial all held that the director's pursuit of shareholder's capital contribution fell within the scope of the director's duty of diligence, but the causal relationship between the director's failure to perform the duty and the company's shareholder's unpaid capital contribution was disputed. The court of first instance and the Court of second instance held that the decision of the board of Directors not to recover the shareholders' unpaid capital contribution was not necessarily related to the shareholders' unpaid capital contribution, that is, whether the shareholders fulfilled the obligation of full capital contribution did not depend on the decision of the board of directors. ... The failure of the Company to receive all capital contribution is caused by the failure of the shareholders of the company to fully fulfill the obligation of capital contribution, and is not caused by the directors of the company passively failing to perform the duty of diligence or actively preventing the shareholders from performing the duty of capital contribution.

In addition, the courts of first instance and second instance also held that only directors and senior executives should be liable for active infringement and cause losses to the company, and compared the relevant provisions of Article 14, paragraph 1, of the Judicial Interpretation of the Company Law, that is, "the company requests the shareholders to return the capital and interest to the company, and the directors who assist in withdrawing the capital bear joint and several liability for this." The people's court shall support it ". It can be seen from the expressions of "performing duties", "company capital increase" and "assisting in withdrawal" in the above provisions that the directors bear responsibility for the company's losses because the directors have made some positive behavior and caused the company to suffer losses. A director shall not be held liable in the event of a passive failure to perform a duty of care which is not directly causal to the loss suffered by the Company.

However, different from the judgment of the courts of first and second instance, the retrial court held that there was a causal relationship between the directors' continuous negative inaction and the shareholders' failure to pay the capital contribution obligation. It held that the shareholders of the company involved in the case should pay all the subscribed capital contributions before March 16, 2006, but between March 16, 2006 and 2012, when the company was ruled to accept bankruptcy liquidation, the directors involved in the case never asked the shareholders to pay the capital contributions, and the directors allowed the actual damage to continue with negative inaction. The non-payment of capital contribution by shareholders is the loss suffered by the company. The non-payment of capital contribution by shareholders and the passive inaction of directors jointly cause the occurrence and persistence of damage. Therefore, there is a legal causal relationship between the director's failure to perform the obligation to call shareholders for capital contribution and the company's losses.

（三）To recover the potential disputes of other shareholders, directors, senior managers or actual controllers in the withdrawal of capital contributions

According to the provisions of Article 14 of Judicial Interpretation III of the Company Law [9], other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution shall bear joint and several liability for the shareholders who withdraw capital contribution within the scope of the withdrawal of capital contribution.

In judicial practice, the court's rules on the identification of "assisting in withdrawal of capital contributions" are not uniform. The majority of the court held that the plaintiff should provide evidence to prove the active behavior of the defendant to help escape, and then reject the plaintiff's lawsuit request. However, a few courts have demonstrated the defendant's behavior of assisting in escape from the perspective of presumption, such as the Intermediate People's Court of Chengdu, Sichuan Province, in the Dispute over liability of Yang Pinghao, Yang Pingrun and Liu Rong and Yu Haibo shareholders for harming the interests of creditors of the Company [(2021) Chuan01 Minend 15564] that: "Yang Pingran and Yang Pingno shall bear supplementary compensation liability within the scope of their withdrawal of capital and interest, and the starting period of interest shall be from the date of withdrawal to the date of replenishment of capital." Yang Pingran, Yang Ping No. The source and flow of investment funds have the same identity, and the two people as shareholders of the company at the same time as the company's senior executives, for a long time did not object to the company's registered capital outflow, the above facts can confirm that the two people reached an agreement on joint withdrawal of capital, should bear joint liability." The court upheld the plaintiff's claim.

四、Disputes against the interests of the debtor

（Lazy in fulfilling the liquidation application and cooperation obligations）

The disputes over damages to the interests of the debtor mentioned in this article refer specifically to the improper performance of duties by the shareholders, directors, senior executives, legal representatives and other relevant parties of the debtor in the bankruptcy proceedings or the conduct of damages to the interests of creditors as stipulated in the bankruptcy law, resulting in the loss of the property interests of the debtor and being required to bear the liability for damages. The legal provisions on which the dispute is based are the "Reply of the Supreme People's Court on How creditors handle bankruptcy liquidation cases of debtors whose whereabouts are unknown or property status is unclear" [10] (hereinafter referred to as "Reply") and the provisions of Article 118 [11] of the "Jiumin Ji", which belong to tort liability disputes. It can be simply divided into the relevant responsible person is lazy in fulfilling the bankruptcy liquidation application and cooperation obligations, resulting in the loss of the debtor, and then the bankruptcy administrator is held responsible.

（一）Failing to fulfill the obligation of applying for bankruptcy liquidation

According to the relevant provisions of the "Reply" and the "Jiumin Ji", when the enterprise appears in the situation of Article 7, paragraph 2 [12] of the Bankruptcy Law, that is, the enterprise has been dissolved but has not been liquidated or has not been liquidated, and the assets are not enough to pay off the debts, the person who is legally responsible for liquidation shall apply to the people's court for bankruptcy liquidation. If the person responsible for liquidation fails to apply to the court for bankruptcy in a timely manner, resulting in the loss of the debtor's main property, books, important documents, etc., resulting in the inability of the administrator to perform the liquidation duties, and causing damage to the interests of creditors, the administrator has the right to request the above-mentioned person responsible to bear the liability for damages.

Different laws and regulations distinguish the responsible subjects who have the obligation to apply for liquidation: Article 70, paragraph 3 [13] of the Civil Code stipulates that the directors, directors and other members of the executive or decision-making bodies of enterprises are liquidation obligors, except as otherwise provided by law. However, Article 18 [14] of the Second Judicial Interpretation of the Company Law stipulates that the liquidation obligation of a limited liability company is the shareholder, and that of a joint stock limited company is the director and controlling shareholder. The provisions of the second Judicial Interpretation of the Company Law are mainly aimed at the loss of the company's main property, account books and important documents caused by the failure of the relevant responsible person to fulfill the liquidation obligation. Exceptional circumstances in which liquidation is not possible. Therefore, we tend to hold that the persons responsible for the obligation to apply for bankruptcy liquidation are mainly the shareholders of limited liability companies and the directors and controlling shareholders of joint stock limited companies.

According to Article 118 of Jiu Min Ji, the causality of such disputes includes: the liquidator fails to fulfill the obligation of applying for bankruptcy liquidation in time, and there is subjective fault; Failure to apply for bankruptcy liquidation in time leads to the loss of the company's main property, account books, important documents, etc.; The manager is unable to perform the liquidation duties due to the loss of main property, account books, important documents, etc.; The inability of the administrator to perform the liquidation duties has caused damage to the interests of creditors. The diagram of responsible person and causality is as follows:

（二）Failing to fulfill the obligation to cooperate with bankruptcy liquidation

According to the relevant provisions of the Reply and the Jiu Min Ji, if the person who is legally responsible for liquidation fails to fulfill the obligation of cooperation in liquidation stipulated in Article 15 [15] of the Enterprise Bankruptcy Law (including properly keeping property, seals, account books, documents and other materials, and answering the queries of the court and the manager), resulting in the loss of the debtor's main property, account books, important documents, etc. If the administrator is unable to perform the liquidation duties and damages the interests of creditors, the insolvency administrator shall request the above subject to assume the corresponding liability for damages and assign the compensation obtained thereby to the property of the debtor.

Similarly, different legal provisions distinguish the responsible subjects who have the obligation to cooperate in liquidation: Article 15 of the Enterprise Bankruptcy Law includes two categories, one is the legal representative; The second is the financial management personnel and other management personnel decided by the court. The "Nine Min Ji" directly stipulates that the main body of responsibility is the legal representative of the enterprise, financial management personnel and other management personnel.

According to Article 118 of Jiu Min Ji, the causality of such disputes includes: the person who has the obligation to cooperate with the liquidation does not cooperate with the liquidation, and there is subjective fault; The relevant personnel do not cooperate with the liquidation resulting in unclear property status of the debtor; The administrator is unable to perform the liquidation function because the debtor's property status is unclear; The inability of the administrator to perform the liquidation duties resulted in the loss of creditors' interests. The relevant responsible person and causal relationship structure diagram are as follows:

五、Disputes over recovery of abnormal income and embezzlement of enterprise property

The legal provisions for the recovery of abnormal income and embezzlement of enterprise property disputes are mainly Article 36 [16] of the Bankruptcy Law, in which the directors, supervisors and senior executives of the targeted enterprise obtain abnormal income from the enterprise or seize the assets of the enterprise by using their powers, and the manager shall recover the aforementioned personnel through litigation according to law. It can be divided into two categories: first, enterprise directors, supervisors and senior executives use their authority to seize the assets of the company, such as collecting the receivables of the enterprise but refusing to return them; Second, when the enterprise is insolvent or obviously lacks the ability to pay off, it can obtain performance bonus and wage income under the circumstance of general arrears of employee wages.

（一）The directors, supervisors and senior executives of the enterprise take advantage of their power to seize the assets of the company

In the operation process of small and medium-sized enterprises, the financial system is not standardized, and the directors, supervisors and senior executives of the enterprise collect receivables on behalf of the enterprise, but they fail to provide sufficient evidence to prove that the receivables collected are used for the operation of the enterprise or the directors, supervisors and senior executives of the enterprise directly occupy the assets of the company. In this case, the manager will recover from the directors, supervisors and senior officers of the enterprise.

Practical cases: In "Liu Jiaxing, Foshan Taiyi Mold Co., LTD., etc., Civil Judgment on Recovery of Abnormal Income Disputes" [(2022) Yue 06 Min End No. 9698], the court held that: "According to the facts ascertained in this case, after deducting the funds deposited by Liu Jiaxing into the account of Taiyi Company, Liu Jiaxing has received a total of 387,832.84 yuan (416,332.84 yuan -28500 yuan) transferred by Taiyi Company to his personal account, and in the case of Taiyi Company requiring Liu Jiaxing to return the above funds to the company, Liu Jiaxing shall bear the burden of proof as to the legality of his withdrawal and holding of the above-mentioned funds. Liu Jiaxing submits Evidence materials, only the transfer voucher is not enough to prove that the above-mentioned payment is made on behalf of Taiyi Company, even if Liu Jiaxing proves that Taiyi Company had business dealings with the aforementioned part of the subject, it does not mean that Liu Jiaxing's payment dealings with the part of the subject are necessarily related to Taiyi Company. ... In summary, Liu Jiaxing did not provide sufficient evidence to prove his claim, should be unable to prove the adverse consequences, in this case, the court found that Liu Jiaxing's behavior is encroaching on the property of Taiyi Company, causing damage to the interests of Taiyi Company, Liu Jiaxing should return 387,832.84 yuan to Taiyi Company." In the aforementioned cases, the court holds that where the operator of the enterprise advances the money for the operation of the enterprise, it shall provide sufficient evidence to prove it, including the corresponding contract, invoice, etc. If the evidence is unfavorable, it shall bear the corresponding legal consequences.

（二）In the case of bankruptcy of the enterprise, the directors, supervisors and senior executives of the enterprise receive salary income or receive excess income

According to Article 24 [17] of Judicial Interpretation II of the Bankruptcy Law, in the case of bankruptcy of the enterprise, if the directors, supervisors and senior managers of the enterprise obtain performance bonuses and abnormal income, the manager has the right to recover from the above personnel, if the above personnel return, the return amount shall be satisfied with reference to ordinary claims; In the case of bankruptcy of the enterprise and general arrears of wages of other employees, such as directors, supervisors and senior managers of the enterprise receive wages, the manager has the right to recover from the above personnel, if the above personnel return, the returned amount can be used as a creditor's right to pay off, and the repayment is divided into two categories: the return amount within the range of the average salary of the employee, according to the arrears of wages of the employee; The portion exceeding the average wage may be paid off as ordinary bankruptcy claims.

Practical cases: In Zhang Chi and Hunan Nanfang Boyun New Materials Co., LTD., Civil Judgment of the Second Instance of Civil Dispute on Recovery of Abnormal Income [(2021) Xiang 01 Minend 15612], the court held that: "When the debtor's enterprise is insolvent, insolvent and other reasons for bankruptcy, the director, supervisor and senior management of the debtor based on their special status or under the authority of the performance bonus and other income shall be recognized as abnormal income." In this case, first of all, according to... Issued the "Audit Report", Southern Boyun Company has been in a state of insolvency since December 31, 2019. Although the company did not apply for bankruptcy to the court at that time, it cannot deny the reason for its insolvency. ... Secondly, after investigation, the salary standard of the leaders of Nanbao Yun Company is determined by its controlling shareholder, Nanzi Company, and Zhang Chi's salary is also included in the scope of the standard based on his status as the deputy general manager of Nanbao Yun Company, so the performance bonus obtained by Zhang Chi according to the standard is based on his special status. Accordingly, the performance bonus obtained by Zhang Chi should be classified as abnormal income."

Summary: To sum up, after an enterprise enters the bankruptcy procedure, the shareholders, actual controllers or board of directors and supervisors of the enterprise are faced with potential litigation risks, one of which is about the investment obligation, the other is about damaging the interests of the enterprise or creditors. Therefore, when the enterprise applies for bankruptcy or is applied for bankruptcy by creditors, it is necessary to comprehensively sort out whether the enterprise has the above problems, investigate the relevant risk points, and avoid being pursued by the bankruptcy representative.

[1]Article 35 After the people's court has accepted the bankruptcy application, if the investor of the debtor has not fully performed the obligation of capital contribution, the administrator shall require the investor to pay the capital contribution he has subscribed for, without being limited by the time limit of capital contribution.

[2]Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Enterprise Bankruptcy Law of the People's Republic of China (II) (2020 Amendment) Article 46 Where the shareholder of the debtor claims to set off the following debts against the debts owed to him by the debtor, and the debtor's administrator objects, the people's court shall support:

（一）The debt owed by the debtor shareholder to the debtor due to non-payment of the debtor's capital contribution or withdrawal of capital contribution;

（二）Debtor shareholders abuse the rights of shareholders or the association relationship damages the interests of the company to the debtor's debts.

[3]Article 35 After the establishment of a company, no shareholder may withdraw his capital contribution.

[4]Article 14 Where a shareholder withdraws capital contribution and the company or other shareholders request that the shareholder return the capital contribution principal and interest to the company or other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution bear joint and several liability, the people's court shall support it.

Where the creditors of the company request the shareholder who has withdrawn the capital contribution to bear supplementary liability for the part of the company's debts that cannot be repaid within the scope of the capital contribution withdrawal, and the other shareholders, directors, senior managers or actual controllers who have assisted in the withdrawal of the capital contribution to bear joint and several liability, the people's court shall support; Where the shareholder who has withdrawn the capital contribution has assumed the above liability, and other creditors make the same request, the people's court shall not support it.

[5]Provisions of the Supreme People's Court on Several Issues relating to the Application of the Enterprise Bankruptcy Law of the People's Republic of China (2) Article 21 Before the acceptance of the bankruptcy application, if the creditor files the following actions regarding the debtor's property, and the case has not been concluded at the time of acceptance of the bankruptcy application, the people's court shall suspend the hearing:

（二）Claims that the debtor's capital contributors, promoters, directors or senior managers who are responsible for supervising the performance of the shareholder's investment obligation, or other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution directly bear the liability for false investment or withdrawal of capital contribution;

After the bankruptcy of the debtor is declared, the people's court shall make a judgment rejecting the creditor's claim in accordance with Article 44 of the Enterprise Bankruptcy Law. However, the creditor in the first instance to change its claim for recovery of the relevant property into the debtor's property except.

Before the bankruptcy of the debtor is declared, if the people's court decides to reject the bankruptcy application or terminate the bankruptcy proceedings in accordance with Article 12 or Article 108 of the Enterprise Bankruptcy Law, the trial of the case suspended above shall resume according to law.

[6]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 13 Where a shareholder fails to perform or fully perform his capital contribution obligation and the company or other shareholders request him to fully perform his capital contribution obligation to the company according to law, the people's court shall support it.

If the creditors of the company request the shareholders who fail to perform or fully perform their obligations of capital contribution to bear supplementary liability for the unliquidated part of the company's debts within the scope of the principal and interest of the capital contribution, the people's court shall support it; Where a shareholder who fails to perform or fails to fully perform his obligation to contribute capital has assumed the above liability, and other creditors make the same request, the people's court shall not support it.

Where a shareholder fails to perform or fully perform his obligation to contribute capital at the time of establishment of the company, and the plaintiff who brings a suit in accordance with paragraph 1 or paragraph 2 of this Article requests the company's promoters and the defendant shareholder to bear joint and several liabilities, the people's court shall support; After the promoters of the company assume the liability, they may seek compensation from the defendant shareholders.

Where a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, and the plaintiff who brings a lawsuit in accordance with paragraph 1 or paragraph 2 of this article requests that the director or senior management who has not fully paid the capital contribution bear the corresponding responsibility for failing to fulfill the obligation provided for in paragraph 1 of Article 147 of the Company Law, the people's court shall support; After the directors and senior managers assume responsibility, they may seek compensation from the defendant shareholders.

[7]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 18 Where a shareholder of a limited liability company transfers its equity without fulfilling or fully fulfilling its investment obligation, and the assignee knows or should know about it, and the company requests the shareholder to perform the investment obligation and the assignee bears joint and several liability for it, the people's court shall support it; Where the creditor of the company brings a lawsuit against the shareholder in accordance with paragraph 2 of Article 13 of these Provisions and simultaneously requests the aforementioned transferee to bear joint and several liability, the people's court shall support it.

Where the assignee, after assuming the liability in accordance with the preceding paragraph, seeks compensation from the shareholder who fails to fulfill or fully fulfill the obligation of capital contribution, the people's court shall support it. However, unless otherwise agreed by the parties.

[8]"Whether the original shareholder and the transferee shareholder can be added as the person subject to execution from the perspective of the draft amendment to the Company Law", public number: Executive Mandarin.

[9]Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China Article 14 Where a shareholder withdraws capital contribution and the company or other shareholders request him to return the principal and interest of capital contribution to the company or other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution to bear joint and several liability, the people's court shall support it.

Where the creditors of the company request the shareholder who has withdrawn the capital contribution to bear supplementary liability for the part of the company's debts that cannot be repaid within the scope of the capital contribution withdrawal, and the other shareholders, directors, senior managers or actual controllers who have assisted in the withdrawal of the capital contribution to bear joint and several liability, the people's court shall support; Where the shareholder who has withdrawn the capital contribution has assumed the above liability, and other creditors make the same request, the people's court shall not support it.

 [10]Reply of the Supreme People's Court on How Creditors Handle Bankruptcy Liquidation Cases of debtors whose whereabouts are unknown or Property status is Unclear [Interpretation (2008) No. 10] Guizhou Provincial High People's Court: Your court "On the enterprise legal person after the business license is revoked, the person who is legally responsible for liquidation does not apply to the court for bankruptcy, whether the creditor can apply for the bankruptcy of the enterprise that has been revoked business license" ((2007) Qian Gaomin second break please final word 1) received. After research, the approval is as follows:

If a creditor applies for bankruptcy liquidation against a debtor whose personnel whereabouts are unknown or whose property status is unclear, and the application complies with the provisions of the Enterprise bankruptcy Law, the people's court shall accept the application according to law. Whether the debtor can submit to the people's court a statement of property status, a list of claims and debts and other relevant materials in accordance with the provisions of paragraph 2 of Article 11 of the Enterprise Bankruptcy Law shall not affect the acceptance of the creditor's application.

After accepting the above bankruptcy case, the people's court shall appoint an administrator to recover the debtor's property in accordance with the relevant provisions of the enterprise Bankruptcy Law; If, after liquidation according to law, the debtor really has no property to distribute, the debtor shall be declared bankrupt and the bankruptcy proceedings shall be concluded; If, within two years after the conclusion of the bankruptcy proceedings, it is found that there is property that should be recovered according to law or other property that should be distributed, the creditor may request the people's court for additional distribution.

If the relevant personnel of the debtor fails to perform their statutory obligations, the people's court may investigate them for corresponding legal liability in accordance with the relevant provisions of the law; If its conduct leads to failure to liquidate or causes losses, and the relevant right holder brings a lawsuit requesting it to bear the corresponding civil liability, the people's court shall support it according to law.

In reply.

[11]《全国法院民商事审判工作会议纪要》【法〔2019〕254号】118.【无法清算案件的审理与责任承担】人民法院在审理债务人相关人员下落不明或者财产状况不清的破产案件时，应当充分贯彻债权人利益保护原则，避免债务人通过破产程序不当损害债权人利益，同时也要避免不当突破股东有限责任原则。

[20][Law [2019] No. 254] 118. [Trial and Liability of Unliquidated cases] When hearing bankruptcy cases where the relevant personnel of the debtor are missing or the property status is unclear, the people's court shall fully implement the principle of protecting the interests of creditors and avoid the debtor from improperly harming the interests of creditors through bankruptcy proceedings. At the same time, we should avoid unduly breaking the principle of shareholder limited liability.

The provision in paragraph 3 of the above reply that "if the relevant personnel of the debtor fails to perform the legal obligations, the people's court may investigate them for corresponding legal responsibilities in accordance with the relevant legal provisions" means that the legal representative of the debtor, the financial management personnel and other business management personnel fail to perform the obligation of cooperating with the liquidation provided for in Article 15 of the Enterprise Bankruptcy Law. The people's court may investigate the relevant legal responsibility in accordance with Article 126 and 127 of the Enterprise Bankruptcy Law, or detain the person in accordance with the provisions of Article 111 of the Civil Procedure Law, and if the case constitutes a crime, investigate the criminal responsibility according to law; If the legal representative or actual controller of the debtor does not cooperate with the liquidation, the people's court may, in accordance with the provisions of Article 12 of the Exit and Entry Administration Law, make a decision against the debtor not to leave the country so as to ensure the smooth proceeding of the bankruptcy proceedings.

"Its conduct leads to failure to liquidate or causes losses" as stipulated in paragraph 3 of the above-mentioned approval means that the relevant personnel of the debtor do not cooperate with the liquidation behavior resulting in the unclear property status of the debtor, or the person legally responsible for liquidation fails to fulfill the obligation of filing for bankruptcy in a timely manner in accordance with the provisions of Article 7, paragraph 3, of the Enterprise Bankruptcy Law. It leads to the loss of the debtor's main property, account books, important documents, etc., which makes the manager unable to perform the liquidation duties and damages the interests of creditors. "The relevant right holder sues to require it to bear the corresponding civil liability" means that the manager requests the above subject to bear the corresponding liability for damages and transfers the compensation thus obtained to the debtor's property. If the administrator does not claim such compensation, individual creditors may bring such actions on behalf of all creditors.

After the above bankruptcy liquidation case is ruled to be concluded, the relevant subject on the basis of the debtor's main property, account books, important documents, etc. to start trial supervision of bankruptcy liquidation proceedings, the people's court will not accept, but in accordance with the provisions of Article 123 of the Enterprise Bankruptcy Law, creditors can request the people's court for additional distribution.

[12]Article 7 The debtor may, under the circumstances provided for in Article 2 of this Law, file an application for reorganization, reconciliation or bankruptcy liquidation with the people's court.

If the debtor is unable to repay the debts due, the creditor may file an application with the people's court for reorganization or bankruptcy liquidation of the debtor.

If an enterprise as legal person has been dissolved but has not been liquidated or has not been liquidated, and its assets are not enough to pay off its debts, the person who is legally responsible for liquidation shall apply to the people's court for bankruptcy liquidation.

 [13]Article 70 of the Civil Code, except in the case of merger or division of the legal person dissolved, the liquidation obligation shall form a liquidation team in a timely manner for liquidation.

The directors, directors and other members of the executive body or decision-making body of the legal person shall be the liquidation obligors. Where laws or administrative regulations provide otherwise, such provisions shall prevail.

If the liquidation obligor fails to perform the liquidation obligation in time and causes damage, it shall bear civil liability; The competent authority or an interested party may apply to the people's court to appoint relevant personnel to form a liquidation group to conduct liquidation.

[14]Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China (II) (2020 Amendment) Article 18 Where the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company fail to set up a liquidation group to begin liquidation within the statutory time limit, resulting in the depreciation, loss, damage or loss of the company's property, Where the creditor claims that it is liable for compensation for the company's debts within the scope of the losses caused, the people's court shall support it according to law.

Where the shareholders, directors and controlling shareholders of a limited liability company, or of a joint stock limited company, fail to perform their obligations, resulting in the loss of the company's main property, account books and important documents, etc., and the liquidation is impossible, and the creditors claim that they bear joint and several liabilities for the repayment of the company's debts, the people's court shall provide support according to law.

If the creditor claims that the actual controller shall bear corresponding civil liability for the company's debts, the people's court shall support it according to law.

[15]Article 15 From the date on which the ruling of the people's court accepting the bankruptcy application is served on the debtor until the date on which the bankruptcy proceedings are terminated, the relevant personnel of the debtor shall undertake the following obligations:

（一）Properly keep the property, seals, account books, documents and other materials in its possession and management;

（二）Perform work according to the requirements of the people's court and the administrator, and truthfully answer inquiries;

（三）He may not leave his place of residence without the permission of the people's court;

（四）They shall not be appointed as directors, supervisors or senior managers of other enterprises.

The relevant personnel mentioned in the preceding paragraph refers to the legal representative of the enterprise; Upon decision of the people's court, it may include the financial management personnel and other business management personnel of the enterprise.

[16]Article 36 of the Bankruptcy Law stipulates that "the manager shall recover the abnormal income and the property of the enterprise that the directors, supervisors and senior management of the debtor have obtained from the enterprise by virtue of their functions and powers."

[17]"Provisions of the Supreme People's Court on Several Issues concerning the Application of the Enterprise Bankruptcy Law of the People's Republic of China (2)" Article 24 When the debtor has the circumstances provided for in paragraph 1 of Article 2 of the Enterprise Bankruptcy Law, the people's court shall identify the following income obtained by the directors, supervisors and senior management personnel of the debtor using their powers as abnormal income as provided for in Article 36 of the Enterprise Bankruptcy Law: (1) performance bonus; (2) wage income obtained under circumstances of general arrears in the payment of wages to employees; (3) Other abnormal income. If the directors, supervisors and senior managers of the debtor refuse to return the said debtor's property to the manager, and the manager claims that the said personnel should return it, the people's court shall support it.

The claims of the directors, supervisors and senior managers of the debtor arising from the return of the abnormal income in subparagraphs (1) and (3) of paragraph 1 May be satisfied as ordinary bankruptcy claims. The creditor's rights arising from the return of the abnormal income in Paragraph 1 (2) shall, in accordance with the provisions of paragraph 3 of Article 113 of the enterprise Bankruptcy Law, be paid off as wages owed to the staff and workers according to the part calculated on the basis of the average wages of the staff and workers of the enterprise; The part that is higher than the average wage of the staff and workers of the enterprise may be paid off as ordinary bankruptcy claims.