[Key words] civil / private lending / one person limited liability company / joint and several liability of shareholders
[introduction to the lawyer of this case] Zhang Linlin is a lawyer of Liaoning Tongfang law firm. Engaged in litigation agency and non litigation legal work in civil and commercial law. In terms of litigation legal services, he has been engaged in more than 100 cases so far, involving construction contract disputes, sales contract disputes, lease contract disputes, service contract disputes, private loan disputes, labor disputes, tort liability disputes, etc. He has participated in the pre-trial preparation and court proceedings of a large number of cases, and is good at accurate analysis of legal relations and fine sorting of evidence. In non litigation legal services, he is good at the drafting of various legal documents, the drafting and review of various contracts, and provides legal analysis and legal advice for various problems encountered by enterprises in various business activities and individuals in life.
[key points of adjudication] legal and effective loan agreements and loan interest rate agreements that do not exceed the upper limit stipulated by law should be supported. The shareholders of a one person limited liability company shall bear the burden of proof that the company's property is independent of the shareholders' own property. If it is impossible to prove that the company's property is independent of the shareholders' property, the shareholders of a one person limited liability company shall bear joint and several liability for the company's debts.
[basic case] in March 2012, June 2012 and December 2012, Mr. Song lent the loan principal of 3 million yuan, 1 million yuan and 1 million yuan to a Co., Ltd. respectively. Both parties agreed that the monthly interest was 2 points. Both parties signed the loan agreement and had transfer records. From April 1, 2014, a Co., Ltd. will no longer pay interest to song. Company B is the sole shareholder of company a, and company C is the sole shareholder of company B. Because a limited company owed the loan principal and interest, song filed a lawsuit against a limited company, B limited company and C limited company to the court in 2016, and made the following claims: 1. Requesting a limited company to repay the loan principal of 5 million yuan to song; 2. Request judgment that a Co., Ltd. shall pay song the loan interest at the monthly interest rate of 2% from April 1, 2014 to the date of paying off all the principal and interest of the loan; 3. Request for judgment that company B and company C are jointly and severally liable for the principal and interest of the above loan; 4. The three defendants shall bear all the litigation costs for requesting judgment.
A Co., Ltd. replied that the fact of the loan is true. The loan is used for enterprise operation, but it is unable to repay at present due to operational difficulties. Our company is an independent legal person and has the qualification to undertake external liabilities. This loan is our own business behavior, and has nothing to do with B Co., Ltd. and C Co., Ltd.
B Co., Ltd. replied that the loan has nothing to do with our company. Our company has a complete and independent accounting department, a special bank account and an independent office space, and the property is independent. There is no confusion with the property of a Co., Ltd. and C Co., Ltd. the financial situation, operating results and cash flow of our company have been audited annually, and our company's property is independent. Our company shall not bear joint and several liability for the debt of a Co., Ltd.
C Co., Ltd. replied that the loan in this case has nothing to do with our company, and our company is not the borrower. Our company, a Co., Ltd. and B Co., Ltd. are independent legal persons and have their own independent property. There is no confusion of property and they should not bear joint and several liabilities.
The evidences submitted by the plaintiff song include the loan agreement, the transfer certificate, the description of the situation, the industrial and commercial registration information of a Co., Ltd. and the company registration information of B Co., Ltd.
The evidences submitted by the defendants a Co., Ltd., B Co., Ltd. and C Co., Ltd. include the audit reports of three companies in 2013, 2014 and 2015.
[judgment result] the judgment is as follows: I. The defendant a Co., Ltd. shall repay the loan principal of 5 million yuan and the interest of the plaintiff song within 10 days from the date of the legal effect of this judgment (calculated by 2 points per month from April 1, 2014 to the date of the payment determined by this judgment); 2、 The defendants B Co., Ltd. and C Co., Ltd. shall be jointly and severally liable for the repayment of the above loan principal and interest by the defendant a Co., Ltd; 3、 Reject other claims of the plaintiff.
[reason for judgment] the loan agreement between song and a Co., Ltd. is legal and effective. The loan of 5 million yuan owed by a Co., Ltd. to song is true and should be repaid. Both parties agreed that the interest rate was 2 cents per month, which did not violate the legal provisions. Therefore, they supported song's claim that a Co., Ltd. repay the principal and interest of the loan.
Regarding song's request that B Co., Ltd. and C Co., Ltd. bear joint and several liability for the loan of a Co., Ltd. Article 63 of the company law stipulates that "if the shareholders of a one person limited liability company cannot prove that the company's property is independent of the shareholders' own property, they shall bear joint and several liabilities for the company's debts." As the sole shareholder of B Co., Ltd., C Co., Ltd. and B Co., Ltd., as the sole shareholder of a Co., Ltd., bear the burden of proving that the property of its subsidiary is independent from the shareholders. In this case, there is a contradiction between the audit reports provided by B Co., Ltd. and a Co., Ltd., and there is a contradictory record on the same loan between B Co., Ltd. and a Co., Ltd. the audit report cannot prove the financial independence between the two companies, In addition, it was found in the trial that company B and company a share the same office staff and have the same domicile, and share the same office space. There is a loan of 3 million yuan between C Co., Ltd. and a Co., Ltd. in 2012, which has not been repaid. This loan is recorded in the audit report of a Co., Ltd., but it is not reflected in the audit report of C Co., Ltd. in 2013 and 2014. Therefore, the audit report provided by C Co., Ltd. can not prove that there is no mixed property between C Co., Ltd. and a Co., Ltd. To sum up, the court does not deny the authenticity of the audit report, but the matters recorded in the audit report are not consistent, and the contents of the audit report do not fully and truly reflect the objective facts, which makes the court have reasonable doubts about the probative power of the audit report on the facts to be proved, and the existing evidence is insufficient to prove that the property between the shareholders and the company is independent, Company B and company C shall be jointly and severally liable for the loan of company A.
[relevant laws] Article 20 of the company law: the shareholders of the company shall abide by laws, administrative regulations and the articles of association, exercise the rights of shareholders according to law, and shall not abuse the rights of shareholders to damage the interests of the company or other shareholders; It is not allowed to abuse the independent status of the company's legal person and the limited liability of shareholders to damage the interests of the company's creditors.
Where the shareholders of the company abuse their rights and cause losses to the company or other shareholders, they shall be liable for compensation according to law.
Where the shareholders of the company abuse the independent status of the company as a legal person and the limited liability of shareholders to evade debts and seriously damage the interests of the creditors of the company, they shall bear joint and several liabilities for the debts of the company.
Article 63 of the company law: if the shareholders of a one person limited liability company cannot prove that the company's property is independent of the shareholders' own property, they shall bear joint and several liabilities for the company's debts.
[lawyer's opinion] according to Article 63 of the company law, the defendants B limited company and C limited company, as the shareholders of one-man limited liability company a limited company and B limited company respectively, bear the burden of proof that the shareholder property of one-man limited liability company is independent of the company property, that is, the property of B limited company is independent of a limited company and the property of C limited company is independent of B limited company. In this case, the three companies provided the annual audit reports of each company to prove that the shareholder's property is independent from the company's property, so as to prove that they are independent. The shareholder's property is independent from the company's property, and there is no confusion among the three companies. Although the long statements in the audit report may not be fully understood by lawyers as non-financial personnel, there is a part called "notes to financial statements" and "notes to major items of financial statements" in the audit report. This part describes the company's financial situation in one year through words and simple tables, which is generally understandable. This part includes monetary capital, accounts receivable, prepayments, accounts payable Related party transactions, etc. By comparing the audit reports of three companies in the same year and the audit reports of the same company for two consecutive years, it is possible to find contradictions and problems. In this case, it is through the comparison of audit reports between the companies and between the years that the contradictions and problems between the audit reports are found. The audit reports provided by the defendants can not prove that the property of the defendants is independent, so as to deny the effectiveness of the defendant's evidence and achieve the goal of the court supporting all the plaintiff's claims.