1、 Brief of the case
Song, a natural person, lent company a 5 million yuan in 2012, with an agreed monthly interest of 2 points. Company a has not been able to repay. Later, song learned that company a had no funds in its account, and had no other assets except for one plant, so it was not able to repay. Company a was a wholly-owned subsidiary of company B, company B was a wholly-owned subsidiary of company C, and company B was not able to repay. Company C was a powerful company and was able to repay the loan. Therefore, song filed a lawsuit against company a, company B and company C, demanding that company a repay the principal and interest of the loan, and company B and company C bear joint and several liabilities.
2、 Legal basis
The legal basis for the plaintiff to claim that company B and company C should bear joint and several liability is Article 20 and Article 63 of the company law.
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.
3、 Analysis
According to Article 63 of the company law, the defendant has the obligation to prove that its shareholder's property is independent of the company's property, and the burden of proof is on the defendant. In this case, in order to prove that the shareholders' property is independent from the company's property, the three companies provided audit reports of each company to prove that they are independent. The shareholders' property is independent from the company's property, and there is no confusion among the three companies. The plaintiff needs to negate these audit reports, stating that these audit reports are problematic and cannot prove the defendant's claims.
Although we are not professional financial personnel and cannot understand the long statements in the audit report, there is a part in the audit report called "notes to financial statements" and "notes to major items of financial statements". This part describes the company's financial situation in one year through words and simple tables, which is usually understandable. This part includes monetary capital, accounts receivable, prepayments, accounts payable Related party transactions, etc.
Through the records of each company's annual reports, the comparison of the reports of the three companies in the same year, and the comparison of the reports of the same company for two consecutive years, it is possible to find contradictions and problems. For example, the annual audit report provided by company a has an error in the record of the loan in this case. The loan in this case belongs to the payables of company a, which is recorded in the annual audit reports submitted by company a, but the recorded amount is wrong. There is a contradiction between the 2014 audit report of company a and the 2014 audit report of company B. company a records that there is a payable to company B, with an amount of more than 730000 yuan. It is reasonable that there should be a receivable of the same amount to company a in the records of company B. However, in fact, there is a receivable to company a in the records of company B, but the amount is more than 670000 yuan, which is obviously contradictory. The year-end amount of a receivable in the 2012 audit report of company C is inconsistent with the year-end amount of the receivable in the 2013 audit report. It is reasonable that the amount receivable at the end of 2012 should be the same as that of the same company at the beginning of 2013.
In this case, the three defendants bear the burden of proof that the shareholder's property of a one-man limited liability company is independent of the company's property. The most direct evidence they want to prove is the audit report. These audit reports will certainly not cause too much problems when viewed separately, but problems will be found between companies and between years. The audit report has been formed, and the defendant can not avoid it. Through careful analysis of these audit reports, the plaintiff's lawyer found the contradictions and problems, thus achieving the purpose of negating the defendant's evidence effect and enabling the court to support the plaintiff's claim.