观韬视点 | 2024 PRC Company Law：Brief Introduction to key changes

作者：尹颖

《中华人民共和国公司法（2023修订）》（the “2024 Company Law”/“新公司法”）即将于2024年7月1日生效。不论是国内法律实务界、企业界还是外籍创业者群体，早已纷纷展开了对新公司法的学习。本文中，作者使用英语着重介绍了：（1）新公司法下有限责任的实现（主要介绍了公司资本形成制度、公司法人人格否认制度），（2）新公司法在公司治理方面的调整，（3）有限责任公司的设立（主要介绍了有限公司设立的程序、发起人协议和发起人责任），希望对外籍创业者了解新公司法的相关制度有所帮助。

I. Fullfillment of Limited Liability

For sharesholders of a company, the limited liability means the maximum losses that a shareholder has to bear are the amount he commits to invest into the company. For a company, the limited liability means that a company is an independent legal person. Therefore, the concern of realization of limited liability is actually discussing the issues as follows:

(1) How to ensure that the capital committed by shareholders is invested and used to assume liabilities for the company; and

(2) How to avoid abuse of the separate personality of the company, resulting in unfair treatment of creditors' interests.

1．How to ensure that the capital committed by shareholders is invested and used to assume liabilities for the company

In order to clarify the analysis of this issue in a simple and intuitive way, only a limited liability company is used as a sample for analysis below.

Under the 2024 Company Law, these mechanisms are required to ensure the capital contribution of a shareholder:

(1)  Forms of capital contribution

Cash is absolutely a form of capital contribution.  In case of making the capital contribution in non-monetary properties, the following two requirements shall be satisfied: (1) assessable on the basis of currency, and (2) transferable. This is because whether or not it is valuable determines how much equity it will generate for the shareholder who use it as a capital contribution. Moreover, transferability determines the manners in which the shareholder should realize the contribution.

Typical non-monetary properties which are allowed to be use as capital contribution include: movables, intellectual properties, right of land use, equities and claims. Typical non-monetary properties that are NOT allowed to be use as capital contribution include: labor, credit, the name of a natural person, goodwill, franchise, or property already used as security.

As mentioned, the forms of capital contribution determine the ways for a shareholder to implement his obligation of capital contribution. This is summarized in the table below:

(2)  Paying for the shortfall in a shareholder’s capital contribution & joint and several liability of other shareholders

Absolutely, making full payment in time for capital contribution is an obligation of any specified shareholder. It is a commitment, and the shareholder must pay what he owes.  However, under some circumstances, it may become an obligation of one among the other shareholders, a third party.

Such circumstances are two as follows: (1) at the time of formation of a limited liability company, a shareholder fails to pay the capital contribution according to the company’s bylaw, or (2) at the time of formation of a limited liability company, the value of the non-monetary property as capital contribution is apparently lower than the capital contribution subscribed for.

Under such circumstances, the other shareholders at the time of formation shall be joint and severally liable to the extent of the shortfall in the shareholder’s capital contrition. The reason for this arrangement, whereby the other shareholders at the time of formation are jointly and severally liable, is because it is generally recognized by the legislators and the courts that before the incorporation of a company as a legal entity, the promoters/shareholders were in a general partnership with each other. It is the proper meaning of general partnership that partners are jointly and severally liable to each other for all their property.

(3)  Revocation of registration of company establishment

In the event that the registration of company incorporation is obtained on the basis of fraud, the registration of the incorporation shall be revoked. Here, the fraud is defined as each of misreporting registered capital, submitting false materials and otherwise fraudulently concealing important facts.

The first scenario, misreporting registered capital, is not applied to the incorporation of a limited liability company. As a shareholder of a limited liability company, he is not necessary to fully pay at the time of formation as long as such conduct is in consistent with a valid bylaw of that company.

Regarding the second scenario, false materials include the application form for incorporation, modification or deregistration, the bylaw, the resolutions of BOD or shareholders’ meetings, the certificate of capital verification, the proof of address, and the pre-license approval which are false.   

As for the third scenario, “important facts” mainly refers to:

(1) whether the shareholders meet the quorum,

(2) whether there is a bylaw jointly formulated by the shareholders,

(3) whether an organizational structure consistent with a limited liability company has been set up, and

(4) whether there is a real corporate domicile, and other facts;

For a company limited by shares, mainly include:

(1) whether the promoters meet the quorum,

(2) whether the number of promoters and the share capital publicly raised in society comply with the law,

(3) whether the share issuance and preparatory matters comply with the law,

(4) whether the promoters have formulated the articles of association and adopted them by the founding general meeting,

(5) whether there is a name of the company,

(6) whether the organizational structure conforming to the requirements of the limited liability company has been set up,

(7) whether there is a real facts such as the company's domicile.

(4)  Full payment of capital contribution within specified period

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