Ningbo equity transfer debt spouse to bear?- Zhiheng Law Firm

One party in the marriage transferred the unpaid equity to a third party for 0 yuan, and promised to bear joint and several liability for the company's original debts. The first conclusion: whether the debt arising from the transfer of equity should be borne jointly and severally by the spouse depends on whether the debt can fall into the category of joint debt of the husband and wife. If the spouse is not a party to the equity transfer contract, does not know, does not make a profit, and the transfer proceeds are not used for family life together, they generally do not bear joint and several liability. The $0 transfer of unpaid equity itself, but also superimposed on the new "Company Law" under the capital contribution liability and new regulations risk, need to be seen separately.

Legal basis for 1.: from "co-debt co-signing" to capital contribution responsibility.

To determine whether the equity transfer debt implicated the spouse, first look at two sets of provisions:

determination of joint debts of husband and wife: Article 1064 of the Civil Code stipulates: "The debts incurred by the husband and wife in the joint signature of both husband and wife or the subsequent ratification of one of the husband and wife, as well as the debts incurred by one of the husband and wife in their own name for the daily needs of the family during the existence of the marriage relationship, belong to the joint debts of husband and wife. A debt incurred by one of the spouses in their own name during the marriage that exceeds the daily needs of the family does not belong to the joint debt of the husband and wife; however, the creditor can prove that the debt is used for the joint life of the husband and wife, joint production and operation, or on the basis of the joint intention of the husband and wife." Dismantling down is three sets of elements: common meaning (joint debt co-signing or post-recognition), for the needs of the family's daily life, for the husband and wife to live together or jointly produce and operate-to meet one to constitute a common debt, otherwise borne by the debtor personally. How to pay off after divorce, Article 1089 of the Civil Code further stipulates that the joint debts of husband and wife shall be repaid together, and if the common property is insufficient to pay off or the property belongs to each other, the two parties shall agree to pay off.
Liability for unpaid equity transfer: Article 88 of the new Company Law (revised in 2023 and implemented on July 1, 2024) stipulates: "where a shareholder transfers an equity that has been subscribed but has not reached the deadline for capital contribution, the transferee shall bear the obligation to pay the capital contribution; if the transferee fails to pay the capital contribution in full and on time, the transferor shall bear supplementary liability for the capital contribution that the transferee fails to pay on time." Accordingly, after $0 transfers the unpaid equity, the obligation to contribute is in principle transferred to the transferee, but if the transferee does not pay, the transferor still has to "cover the bottom" to make up-this is the transferor's own responsibility and has nothing to do with his or her spouse, unless the liability itself constitutes a joint debt.

Three ways to establish the "implicated spouse" of 2. equity transfer debt.

In practice, spouses are required to be jointly and severally liable, almost all of which fall into the following three situations:

co-signing or after-the-fact ratification: the spouse signs the equity transfer agreement, the commitment to assume the debt, or after the fact in writing, WeChat and other means to explicitly ratify the consent, constitute a common meaning, the debt into a common debt.
The proceeds of the transfer are used for common living: the transfer money enters the family account for common family expenses such as house purchase, car purchase, decoration, children's education, etc. If the creditor can prove the flow of funds, the debt may be deemed to be used for the couple's common living.
Benefit from joint operation: the spouse participates in the operation of the company, shares the operating income, guarantees the company with the family property, and the company's debt may be considered as the debt of "joint production and operation. On the other hand, if the spouse holds only nominal shares and has never participated in the operation and has not been beneficial, it is difficult to pursue the responsibility accordingly.

Special reminder: Even if it is written in the equity transfer agreement that "the spouse shall bear joint and several liability", as long as the spouse does not sign it and does not ratify it afterwards, the clause will only take effect between the parties to the contract and will not take effect on the spouse according to the principle of contract relativity-this is the most common misunderstanding.

Triple risk of 3. $0 transfer of unpaid equity

the transfer of unpaid equity by 0 yuan or obviously at a low price seems to "shake off the burden", but in fact the risks are superimposed: first, the liability for capital contribution has not been completely shaken off-if the transferee fails to pay the capital contribution on time, the transferor shall bear supplementary liability, and the company's creditors may directly sue the transferor; Second, if the company's external liabilities are transferred without compensation, creditors may claim to cancel the free transfer in accordance with Article 538 of the Civil Code, or in accordance with the corporate law personality denial rules require the original shareholders to bear responsibility, third, the marriage to 0 yuan transfer of equity, the transfer of the proceeds of the family account, if it is found to be malicious transfer of the joint property of the husband and wife, the other party may claim in the divorce proceedings in accordance with Article 1092 of the Civil Code to claim that it is less or not divided into property. In other words, the transfer of 0 yuan may not only make the transferor "let the equity return the responsibility for nothing", but also may ignite the marital property dispute at the same time.

Time Application of 4. New Company Law: Article 88 Not Retroactive

attention should be paid to the time limit when applying article 88 of the company law: according to the reply of the supreme people's court on the non-retroactive application of the first paragraph of article 88 of the the People's Republic of China company law (law interpretation [2024] No. 15, implemented on December 24, 2024), the first paragraph of article 88 of the company law is only applicable to the transfer of shares after July 1, 2024; For the transfer of shares before July 1, 2024, the provisions of this paragraph shall not apply and shall still be dealt with in accordance with the original Company Law and the relevant judicial interpretations. Ningbo stock companies should also pay attention to the transitional arrangement of the capital contribution period: for companies established before July 1, 2024, if the capital contribution period exceeds five years, the remaining capital contribution period shall be adjusted to less than five years before June 30, 2027 and recorded in the articles of association. The transferor and the transferee shall verify the paid-in status of the capital contribution, the articles of association and the transitional arrangement before the transaction to avoid misjudgment of liability.

List of operations 5. three parties

operation points are given by subject:

for the spouse: if the other party transfers the equity without authorization and promises to bear the debt, immediately collect three sets of evidence-uninformed evidence (in-transit records at the time of transfer, documents not signed), unprofitable evidence (flow of the transferred money not into the family account), and evidence not used for family life (accounts not related to the transferred money); When the creditor sues for common debt, he will put forward a defense and provide evidence during the defense period; if it is found that the other party transfers the joint property of the husband and wife by means of 0 yuan transfer, it claims less or no division in the divorce proceedings, and applies for property preservation if necessary.
To the transferee/creditor: Review the transferor's marital status, paid-in capital contribution and company liabilities before the transfer of equity, and require the spouse to issue an informed consent form or the transferor to provide a list of debts if necessary; The counterpart who clearly defines the debt commitment clause in the agreement does not expect the contract to bind the unsigned spouse. A complete set of materials such as the transfer payment certificate, the resolution of the shareholders' meeting, and the registration of industrial and commercial changes can be used to clarify the responsibility once the transferor non-paid-in the non-paid-in the non-in the responsibility.
For enterprises: check the period of capital contribution against the new Company Law, timely adjust the articles of association, reduce capital in accordance with the law or make up the capital contribution for more than five years; perform internal resolution procedures for equity transfer and register changes to avoid supplementary liability arising from capital contribution defects and procedural defects.

Spousal liability for 6. companies and shareholder personalities at the same time: another entry point

in addition to the equity transfer debt implicating the spouse, there is a separate path to be wary of: corporate personality mixing. If there is no distinction between shareholders and the company's property, accounts and businesses, creditors can require shareholders to bear joint and several liability for the company's debts in accordance with the rules of denial of independent status of legal persons in the context of article 1062 of the civil code (denial of corporate personality, article 23 of the company law)-although the debts are called "corporate debts" at this time, they will be converted into individual joint and several debts of shareholders after personality denial, and then judge whether they constitute joint debts of husband and wife according to article 1064, the formation of "double penetration". Ningbo's private economy is developed, with mom-and-pop shops and family companies common. Common mixing situations include: mixing company accounts with family accounts, shareholders collecting company payments from personal accounts, company funds for family purchases, and no distinction between public and private accounts. The practical standard is: if the spouse actually participates in the operation and shares the company's income, the company's debt is more likely to be recognized as the husband and wife's joint production and operation debt after personality denial; If the spouse only holds shares in name, never participates in the operation and does not benefit, the court will strictly examine whether the creditor can prove "joint production and operation" and will not be held accountable only by the identity of the husband and wife.

For Ningbo's husband and wife operators, the key point of prevention is to keep the "separation of public and private": company funds go to public accounts, shareholders and company transactions sign agreements and leave traces, and large family expenses are not mixed with company accounts; Once sued, first defend the company's debts against individuals (legal person independence), then defend the personal debts against spouses (non-common debts), and fortify layer upon layer. For creditors, there are two steps to prove the responsibility of the shareholder's spouse: the first step is to prove that the company and the shareholder's personality is mixed or the shareholder has capital contribution defects, abuse, and the second step is to prove that the personal debt thus converted is used for the husband and wife to live together or operate together-the two-step evidence is missing, and the chain of accountability is broken.

7. Evidence Form and Transaction Arrangement: Self-protection of Three Roles

the "whether the spouse is responsible" falls to the level of evidence, and the morphological evidence is the most convincing. For the spouse, attention should be paid to the retention at ordinary times: the flow of salary card and family account (proving that the transfer money has not entered the family), the transaction record of "unknowing and not participating" in the operation of the husband's company (not signed on the shareholders' meeting documents and guarantee documents), and the source certificate of large family expenses (proving that family life has nothing to do with the equity transfer money); After being sued, apply for consulting the other party's complaint and evidence, check whether the debt really exists, whether it occurs in marriage, and whether the "common living purpose" claimed by the creditor is documented-if the creditor claims that the debt beyond the needs of the family's daily life is a common debt, the creditor shall bear the burden of proof according to article 1064 of the civil code, and the defense of the spouse is "let him give evidence" rather than "prove his innocence". For the transferee and the creditor, the due diligence list before the transaction shall include: the transferor's marital status and spouse's attitude (whether there is the possibility of co-signing), the paid-in status of equity and the term of contribution in the articles of association, the company's liabilities and external guarantees, and the fairness of the transfer price; the transferor's spouse is required to issue a written informed consent or the transferor undertakes to segregate the debt in writing; a full set after the transaction, in the event of a capital contribution recovery or debt dispute, the level of liability can be clarified. The transfer of 0 yuan is not always invalid, but the transferee should be aware that the transfer of equity without compensation or obviously at a low price may be revoked by creditors (Article 538 of the Civil Code), or the original spouse may claim malicious collusion to damage its property rights and interests-writing the price fairly and completing the procedure is the transferee's most basic self-protection.

For enterprises, the governance risks of "husband and wife shareholders" should be moved forward: the articles of association of the company specify that the transfer of shares must be decided by the shareholders' meeting and notified to the spouse to sign together (involving common shares), the decision-making procedures for major asset disposal and external guarantee, the approval and interest-bearing rules for capital transactions between shareholders and the company; For companies jointly held by husband and wife, the contribution and equity division plan should be clarified before divorce or equity change, avoid corporate governance and family disputes dragging each other down.

8. FAQ

must the spouse pay back the debt for the transfer of marital equity?

You don't have. In principle, the equity transfer debt is the personal debt of the transferor, and only when the spouse jointly signs and recognizes the debt for the daily life of the family or joint production and operation, it constitutes the joint debt of the husband and wife.

0 yuan transfer of unpaid equity, the transferor also to pay back the capital contribution?

It depends on the time. If the transfer is made after July 1, 2024, the transferee shall bear the obligation to pay, and the transferee shall bear the supplementary liability if the transferee fails to pay on time (Article 88 of the Company Law).

If the spouse is sued by the creditor, how can he prove that he is not responsible?

Evidence around "uninformed, unbenefited, not used for living together": the original unsigned agreement, the flow of the transfer money not into the family account, the proof that the family expenses are not related to the transfer money.

The other party 0 yuan transfer of equity is not the transfer of property, divorce can be more points?

If it can be proved that the transfer price is obviously unreasonable, occurs after the deterioration of feelings or the formation of debts, and the transferee is a related party, it may claim the malicious transfer of the joint property of the husband and wife, request that it be divided less or not, and may apply for property preservation to prevent the re-circulation of equity.