After the change of legal person, does the new legal person need to bear the legal responsibility and creditor's rights and debts of the original legal person?

The legal person you are talking about is actually the legal representative of the company; The company is a legal person.

1. The legal representative only exercises rights and performs obligations on behalf of the company, and the rights and obligations of the company are still enjoyed and undertaken by the company. Therefore, the legal representative does not enjoy rights and does not bear the debts of the company.

2. If the legal representative is a shareholder of the company, the enjoyment and commitment of the company's creditor's rights and debts are different from those of the legal representative. 3. As an independent legal person, the company's property is independent of the company's shareholders. Under normal circumstances, a company is liable for its debts with all its assets, and shareholders are liable for its debts with their subscribed capital contributions. Exception: ① If shareholders fail to fulfill their obligations in full and on time according to the articles of association, they need to bear supplementary liabilities for the debts of the company within the scope of failing to fulfill their obligations. (2) If the company's shareholders are confused with the company's property, the shareholders need to be responsible for the company's debts.

Therefore, the legal representative does not enjoy or bear the creditor's rights and debts of the company. Under normal circumstances, shareholders do not enjoy or bear the company's creditor's rights and debts; But there are exceptions

Shanxi Mangosteen Law Firm is responsible for changing the legal representative after shaking hands and making peace, which does not affect the company's debt commitment, so some people really use this to avoid debt!

The problem of the subject itself is wrong, and the difference between the concepts of "legal representative" and "legal person" is not clear. Remember: "legal person" is not a person!

First, look at the definition of legal person in the General Principles of the Civil Law: "Legal person" is an "organization" with civil rights and capacity for civil conduct, which independently enjoys civil rights and undertakes civil obligations according to law. In other words, "legal person" is not a person, but an organization.

The General Principles of the Civil Law also stipulates: "According to the law or the articles of association of a legal person, the person in charge who exercises functions and powers on behalf of a legal person is the legal representative of the legal person." Generally speaking, a legal person is a unit and its legal representative is a person.

Therefore, what should be asked is: After the company changes its legal representative, how will it bear the responsibility? This is about how to understand the word "limited" of a limited liability company.

According to the company law, a limited liability company is liable to the extent of shareholders' capital contribution. If the capital contribution of shareholders is in place when the company is established, and there is no property transfer or withdrawal of funds in the course of operation, regardless of whether the shareholders and legal representatives change, the shareholders of the company will no longer be responsible for the debts of the company in their personal capacity, but only for the remaining assets of the company. If they are insolvent, they can go bankrupt.

That is to say, no matter whether the legal representative changes, as long as the capital contribution is in place when the company is established, and there is no behavior such as withdrawing funds or transferring assets in the later period, the company's debts are borne by the company, and the legal representative of the company does not bear the company's debts.

In practice, many limited liability companies, capital contribution is not in place or assets transfer. Some companies, shareholders and legal representatives will change their shareholders and legal representatives in advance to avoid responsibility. In the case that the company is unable to repay its debts, it should enter bankruptcy proceedings. If the creditor wants to investigate the legal responsibility of the original shareholder or the current shareholder, it is necessary to find evidence. If it can be proved that the shareholders or legal representatives of the company have made false capital contributions, transferred assets and other illegal acts, individual responsibility can be investigated according to the situation. Even if the equity has been transferred and the legal representative has changed, it does not rule out the possibility of being investigated!

This article is provided by Zhan lawyer and may not be reproduced without permission.

Lawyer Zhan, guest lawyer of CCTV's "Hotline 12" column, partner of Beijing Zhongdun Law Firm, member of the Contract Law Committee of Beijing Lawyers Association, mainly engaged in civil and commercial litigation.

Legal person exists in social life in the form of enterprise legal person, organ legal person, institution legal person and association legal person. Taking an enterprise as a legal person as an example, the change of legal person includes company merger, division, reorganization and dissolution.

If Company A is divided, after the shareholders' meeting of the Company forms a resolution of merger or division according to Article 37 of the Company Law, the board of directors will formulate corresponding plans and form Company B and Company C through legal procedures. According to Article 175 of the Company Law, the balance sheet and property list shall be prepared to divide the property of Company A. Generally speaking, the separated company shall be jointly and severally liable for the debts of the company before the division. Therefore, the creditor who enjoys the creditor's rights to Company A will not be affected by the debtor's separation. According to the provisions of Article 176 of the Company Law, the debts before the division of the company shall be jointly and severally liable by the company after the division. However, unless the company and creditors reach a written agreement on debt settlement before division.

Let's talk about company merger first, one is absorption merger, and the mode is A+B = A; One is the newly established merger, with the mode of A+B = C. According to Article 173 of the Company Law, all parties shall sign the merger agreement and complete the preparation of the balance sheet and property list. The company shall notify the creditors within 10 days from the date of making the merger resolution and make an announcement in the newspaper within 30 days. Creditors may, within 30 days from the date of receiving the notice, or within 45 days from the date of announcement if they have not received the notice, require the company to pay off debts or provide corresponding guarantees. This is also a concrete measure to protect creditors' rights from the perspective of legislation.

It should be pointed out that the debts of all parties before the merger will continue to be borne by the surviving company or the newly established company after the merger.

Where the legal representative of the company changes, the creditor's rights and debts of the company will not change due to the change of the legal representative.

Focus on finance and taxation: only to provide high-quality finance and taxation dry goods!

Click on the one-click attention in the upper right corner to get more exciting financial and taxation knowledge!

Luo Yonghao is on the run again. How could he escape? That is, the original legal representative or shareholder of the company was him, and now the legal representative or shareholder has changed. Why change it? Because the company is heavily in debt due to poor management, and the liabilities of the company are not those of the legal representative, according to the provisions of the Company Law, the company is an independent entity. As long as the shareholders have completed their capital contribution, they will only bear limited liability to the company, that is, they will be responsible to the company to the extent of their capital contribution. Then why change the legal representative or shareholders? Is it necessary?

1. What are the risks of heavily indebted companies? Will it involve the legal representative? 1, heavily in debt, the company will inevitably have many lawsuits, and the court will apply for enforcement of the effective judgment. As long as the payment obligation is not fulfilled within the time limit specified in the implementation notice, the legal representative or principal responsible person or actual controller will be restricted from high consumption, and the trapeze business personnel are inconvenient, so the legal representative must be replaced quickly. It is difficult to prove whether it is the main person in charge or the actual controller, but the legal representative is from industrial and commercial registration.

2. According to the Interpretation of the Supreme Court on Several Issues Concerning the Application of Execution Procedures, "if the person subjected to execution is a unit, his legal representative, principal responsible person or person directly responsible for debt performance may be restricted from leaving the country." The company owes money, and the legal representative can't leave the country, which is also a bad influence.

3. Debt-laden companies apply for bankruptcy liquidation because of insolvency, which will have a certain impact on their legal representatives. According to Article 146 of the Company Law, a director, supervisor or senior manager of the company may not be employed under any of the following circumstances:

(3) If the directors, factory directors and managers of a bankrupt company or enterprise are personally responsible for the bankruptcy of the company or enterprise, it has not been more than three years since the date of completion of the bankruptcy liquidation of the company or enterprise;

(4) Being the legal representative of a company or enterprise whose business license has been revoked due to violation of law and ordered to close down, and having personal responsibility, it has not been more than three years since the date when the business license of the company or enterprise was revoked;

The meaning of "personal responsibility" should mean that individuals are at fault. Moreover, in the process of enterprise bankruptcy, the legal representative shall not leave the residence without the permission of the people's court, and shall also bear corresponding obligations, such as properly keeping the property, seals, account books, documents and other materials in his possession and management; Work in accordance with the requirements of the people's courts and managers, and truthfully answer inquiries; Attend creditors' meetings as nonvoting delegates and truthfully answer creditors' inquiries. Is it boring to be a legal representative? !

4. If the company is blacklisted by industry and commerce or tax because it does not operate according to regulations or has illegal acts, it will be even worse for the legal representative, including the person in charge of tax. It is impossible to buy a house with a loan, and children cannot immigrate. The legal representative is not easy, and Lao Luo quickly changed the legal representative of the company.

Second, the company is illegal or heavily in debt. If the legal representative is replaced, will the original legal representative be all right? According to the provisions of Supreme Law Enforcement No.73 (20 17), if the executed unit fails to perform the obligations specified in the legal documents and changes its legal representative, the court may take withdrawal restriction measures against the original legal representative who is the main person in charge of the executed unit or the person directly responsible for influencing the debt performance. Therefore, the change of the legal representative is only a formal change, and whether to change the substantive content is the factor that the court considers.

If the company's illegal behavior is caused by the original legal representative's tenure, replacing the legal representative cannot exempt the original legal representative from his responsibilities, such as inflating the number of votes. Even if the legal representative is replaced, it will not escape legal sanctions.

Third, the company is heavily in debt. Is it necessary to change shareholders? Although shareholders bear limited liability in terms of capital contribution, the major shareholder is usually the director or actual controller, so it is not safe to change the legal representative. Why don't you transfer your equity to shareholders and exchange it with Dong, so that you can sit back and relax? It seems so. If the original shareholders did not participate in the illegal act, they also contributed in full.

Click on the top right corner to pay attention to one-click attention to focus on finance and taxation!

Great! Don't get lost!

This depends on whether you mean the company or the legal representative of the company. When you talk about people, if you mean the company. Then the change here should be understood as: company name change, company division and merger. According to the General Principles of the Civil Law and the Company Law, if a legal person is merged, its rights and obligations shall be enjoyed and assumed by the merged legal person. Where a legal person is divided, its rights and obligations shall be jointly claimed by the divided legal person, unless otherwise agreed by the creditor and the debtor. At the same time, if the name of the legal person changes during its existence, the legal person shall bear the responsibility. So if you mean the company, the new legal person will of course inherit the creditor's rights and debts of the old legal person.

If you mean the legal representative of the company. According to the General Principles of Civil Law, changing the legal representative is a matter that the company should register with the industrial and commercial registration department according to law. If the actual situation of a legal person is inconsistent with the registered items, it cannot confront a bona fide third party. According to the Company Law, if only the legal representative of the Company Law is changed, the legal representative after the change is not responsible for the legal representative before the change.

After the change of legal person, does the new legal person need to bear the legal responsibility and creditor's rights and debts of the original legal person?

This should be a legal representative, not a legal person.

According to China's laws, the company's debts are borne by the company in principle, and have nothing to do with the company's legal representative or shareholders. However, shareholders have the obligation to contribute to the company, and those who meet the requirements shall bear corresponding legal responsibilities within the scope of contribution. Otherwise, the company belongs to the company, the shareholders belong to the shareholders, and both parties bear their respective responsibilities. This is also the meaning of our company. However, once the company is involved in litigation and enforced, the legal representative may be restricted from high consumption. There are also legal representatives whose reputation is discredited or their rights are restricted because of their debts, which affects the company. Therefore, some legal representatives will take advantage of this gap and solve this height restriction problem by replacing the legal representative. However, some places have stipulated that it is not allowed to change the legal representative in this case.

In addition, our company now adopts the subscription system. Many shareholders did not put their capital contribution in place when transferring their shares. Article 19 of Judicial Interpretation of Company Law (III) stipulates that if the shareholders of a limited liability company fail to perform or not fully perform their capital contribution obligations to transfer their shares, and the transferee knows or should know that the company requests the shareholders to perform their capital contribution obligations, the people's court shall support them. New shareholders should still understand this capital contribution problem. So it doesn't mean that you paid the equity transfer money, and the contribution has nothing to do with you. According to the regulations, if you still accept the equity knowing that the other party has not contributed, you need to bear legal responsibility for the capital contribution. Shareholders of the company participate in the change of the company's articles of association, especially the equity transfer involves the judgment of the equity value, so if the new shareholder defends on the grounds of ignorance, I am afraid it will not be supported by the court.

1. The legal person is not the legal representative.

2. A legal person refers to an organization that has the capacity for civil rights and civil conduct, enjoys civil rights and undertakes civil obligations independently according to law. That is, the company can be a legal person. (Some branches are non-independent legal persons)

3. If the equity of the enterprise changes or the legal representative changes, the rights and obligations in the creditor's rights and debts of the enterprise will not be affected. Unless confirmed by the relevant parties.

4. The creditor's rights and debts incurred by the legal representative in his personal capacity have nothing to do with the enterprise.

The expression of "legal person" in this question is probably ambiguous.

The legal person is the company itself, and there is no problem of change. Companies usually change their legal representatives or actual controllers.

Combined with the landlord's problem, if only the legal representative changes, it will not affect the company's debt liability.

If the actual controller of the company changes, it may belong to the reorganization of the company or the transfer of the original shareholder's equity, depending on the specific transfer agreement on the debt.

Theoretically, as long as the shareholder's capital contribution is in place and there is no asset transfer in the later period, the company's debt is paid off with the company's assets, not the company's shareholders.

However, in the current overall trust environment, it is quite difficult to collect debts, and shareholders of the company may think of many ways to default.

I read an article about bankruptcy liquidation today, which mentioned that there is no such subject as law, and the gap between theory and practice is so great. Especially in the bankruptcy law, the reasons for bankruptcy are so clear and the statutory bankruptcy conditions are so low, but in judicial practice, so few enterprises die through bankruptcy liquidation. (Excerpted from Authoritative Interpretation of Company Law by Tang Qinglin, Li Shu and Zhang Derong)

The loss of actual controller, the transfer of assets of major shareholders and the inability of creditors to apply for bankruptcy liquidation are common problems in many debt disputes.

I also encountered two cases a while ago:

At the behest of major shareholders, Company A lent a large sum of money to related party Company B, and Company B was unable to repay its debts. A company confirmed a large number of bad debts, resulting in shrinking assets. Later, Company A was also chased by creditors because of poor management, but creditors could not ask Company B to return the lent funds.

Company C owes a lot of money due to poor management, leaving an empty shell. Some shareholders of the company want the company, but they are unwilling to bear so many debts, so they plan to liquidate it first and then buy it back from other channels.

Therefore, in the end, it is not the urgency of owing money, but the people who borrow money are more angry.

The problem itself is a problem!

A legal person refers to a civil subject who can bear civil liability independently, such as a limited liability company. The change of legal person, such as the change of business address, business term, registered capital, business scope and shareholding structure, does not affect its commitment to the company's responsibilities before the change.

But if the legal person here refers to the legal representative, then the new legal representative is not responsible for the behavior of the former legal representative.

If the new legal representative still has the status of a shareholder of the company, the shareholder liability assumed by the legal representative has nothing to do with the status of the legal representative.

First of all, if "legal person change" is understood as the change of company name, the new company will inherit the creditor's rights and debts of the original company;

Secondly, if "legal person change" is understood as the change of the legal representative of the company, the change of the legal representative will not affect the fact that all the creditor's rights and debts are borne by the company;

Thirdly, if the shareholders of the company change, unless the equity transfer agreement has special provisions on the creditor's rights and debts of the original company, the creditor's rights and debts are still borne by the company;

Finally, the transfer or acquisition of a company's assets depends on whether the asset transfer (acquisition) agreement stipulates the company's creditor's rights and debts. If there is no agreement, the original company shall still bear the creditor's rights and debts.