| There are still some confusing issues in judicial practice regarding whether the transferee shareholder who abused the independent status of the legal personis required to assume joint and several liability for the debts of the company before the transfer when related to equity transfer in accordance with Article 20,paragraph 3,Article 63 of the Company Law,and whether the joint and several liability of the transferee shareholder is transferred or eliminated with the transfer of equity.Combined with judicial practice,this paper examines the subject of joint and several liability to creditors according to the rules of regradless of corporate entity and the scope of ultimate liability between the transferring shareholder,the transferee shareholder and the company respectively in the case of equity transfer.This paper is divided into three parts.On the basis of summarizing the practical problems and disagreements,the first part analyzes the theoretical reasons causing the practical disputes.The reasons for the unclear determination of the responsible party when appling clauses on regradless of corporate entity lie in the unclear determination of the nature and source of the liability of the shareholder,as well as the unclear determination of the relationship between the transferring shareholder,the transferee shareholder and the company.The second part focuses on the theoretical premise of the determination of shareholders’ liability,namely,the analysis of the nature of the controlling shareholder’s liability.The nature of shareholders’ liability determines the source and transferability of such liability,and the main controversy between the tort liability theory and the special statutory liability theory is whether the established rules of civil law or the special efficiency value of commercial law should be applied to solve the problem of shareholders’ liability.After analyzing the above two interpretations,this article believes that the application of the theory of tort liability can better solve the problem of the liability among shareholders,companies,and creditors.The third part analyzes the issue of external assumption of liability and internal recovery,discussing the subject who shall bear the liability to the creditor,as well as the way to share the liability and the recovery of compensation among the transferring shareholder,the transferee shareholder,and the company.In terms of external assumption of liability,The causal relationship between shareholder abuse and creditor’s rights damage is the basis for determining the subject and scope of liability.In the case that both the transferring shareholder and the transferee shareholder implement abusive behaviors,both of their behaviors must have causal power on the occurrence of the damage results,and there is no possibility that the specific aggrieved party is unknown.However,the total assets of the company are always changing during its operation,and the scope of the damage caused by the transferring shareholder may be compensated during the operation of the transferee shareholder,whose actions may cause the entire damage result.According to the law that each actor should be liable for the largest part of the damage that it could individually cause,both of them should be jointly and severally liable for the total amount of the creditors’ claims.The transferring shareholder,the transferee shareholder and the company are jointly and severally liable to the creditors In terms of external liability.In terms of the internal allocation of liabilities and the recovery of compensation,the right of recovery between the shareholders and the company shall be determined on the basis of the proportion of liabilities between the shareholders and the company,The recovery between the transferring shareholder and the transferee shareholder should be determined by taking into account the equity transfer agreement and the interests between the shareholder and the company. |
