□ Our reporter Huang Hui

  □ Our correspondent Tao Ran

  When a sole proprietorship is overdue for loan repayment, should investors be held responsible?

Recently, the Second Financial Court of Nanchang City, Jiangxi Province concluded a financial loan contract dispute case.

A media company was involved in a lawsuit for defaulting on bank loans. The court ordered a media company to return the plaintiff’s bank loan principal of 30,100 yuan and the corresponding interest and penalty interest on the grounds that the investor assumed unlimited liability for the debts of the sole proprietorship. Investor Wang A person assumes supplementary unlimited liability for the above-mentioned debts.

  The court found that on May 15, 2019, a bank and a media company signed the "Small and Micro Enterprise Quick Loan Loan Contract", which agreed to borrow 34,000 yuan. The purpose of the loan was for daily production and operation turnover, and the loan period began on May 15, 2019. From May 15, 2020, the borrowing rate is 5.0025% per annum, and the penalty interest rate for overdue borrowing is 50% above the borrowing rate.

After the above contract was signed, a bank issued a loan to the defendant, a media company, but the media company failed to repay the principal and interest of the loan as agreed.

As of May 10, 2021, the defendant, a media company, still owed 30,100 yuan in principal, 197.72 yuan in interest, and 2,353.26 yuan in penalty interest.

  It was also found that the defendant, a media company, was a sole proprietorship, and Wang was its investor.

As a certain bank failed to urge for many times, it sued the court, requesting a media company and Wang to return the principal and interest of the above-mentioned loan.

  During the trial, a bank claimed that, as a sole proprietorship, if a media company only takes the enterprise as a party, the bank's creditor's rights may not be realized in a timely manner, resulting in the loss of state-owned assets.

Wang argued that the main body of the loan in this case was a certain media company, and the validity of the loan contract only bound a certain bank and a certain media company, and as an investor, it did not have to undertake any repayment obligations.

  After the trial, the court held that the focus of the dispute in this case was who should bear the debts of the sole proprietorship.

According to relevant laws and regulations, a sole proprietorship generally implements an unlimited liability system. When the property of the sole proprietorship and the investor is insufficient to pay off, the other party's property shall be responsible for supplementary repayment.

Given that the defendant, a media company, is a sole proprietorship, when a media company defaults on the principal and interest of the bank loan and is insufficient to repay, a bank has the right to list its investor Wang as a co-defendant, and bear the debts of the defendant, a media company according to law. Supplement Unlimited Liability.

  Accordingly, the court made the above judgment in accordance with the law.

After the judgment came into effect, both the plaintiff and the defendant served the judgment.

  Investors assume supplementary unlimited liability for the debt of the sole proprietorship

  After the court, the judge stated that a sole proprietorship, also known as a sole proprietorship or a sole proprietorship, a single-person company, an individual enterprise, etc., refers to an enterprise invested and operated by a natural person alone. It is a business entity established in my country by law, invested by a natural person, the property is owned by the investor, and the investor assumes unlimited liability for the debts of the enterprise with his personal property.

  According to relevant laws and regulations, the establishment of a sole proprietorship enterprise must meet the following conditions: 1. It must have its own name; 2. The investor must declare its necessary operating capital equivalent to the scale of the enterprise it is applying for; Necessary production and operation conditions; 4. There are employees who can relatively meet the needs of their business operations.

  So in judicial practice, when a sole proprietorship is involved in a lawsuit, is the sole proprietorship the defendant or the investor as a co-defendant?

How are the responsibilities shared between the two?

  The judge believes that in order to clarify the above problems, it is necessary to analyze the following characteristics of sole proprietorship enterprises: First, the relative independence of personality.

A sole proprietorship is an independent business entity with its own name, independent rights and capacity for conduct, and can carry out independent external activities in its own name.

The second is the relative independence of property.

The property of a sole proprietorship is financially independent from other personal property of the investor.

The third is the relative independence of interests.

With the relative independence of the personality and property of the sole proprietorship, the sole proprietorship has relatively independent interests.

Fourth, the relative independence of responsibility.

Sole proprietorships should first assume unlimited liability for their own assets, rather than either the enterprise or the investor.

  Article 18 of the Sole Proprietorship Law stipulates that if an investor of a sole proprietorship expressly uses the family's co-owned property as his personal contribution when applying for the registration of the establishment of the enterprise, he shall bear unlimited liability for the enterprise's debts with the family's co-owned property in accordance with the law.

Article 31 stipulates that if the property of a sole proprietorship enterprise is insufficient to pay off the debt, the investor shall pay off the debt with other personal property.

The scope of property to pay off the debts of a sole proprietorship is not limited to the corporate property, but involves all the property owned by the investor, that is, the investor bears unlimited liability for repayment of the debt.

  Based on the above-mentioned characteristics of a sole proprietorship, combined with the relevant laws and regulations, in the determination of the sole proprietorship's litigation subject qualification, its creditors can choose to only use the sole proprietorship as the defendant, or they can choose to use the sole proprietorship and its investors as co-defendants.

With regard to the liability of sole proprietorship enterprises, while insisting that investors bear unlimited liability, Chinese legislation has changed the practice of requiring them to bear joint and several liability, and adopted a supplementary form, that is, the liability of the two properties is in sequence, and the creditor can request When the property of the sole proprietorship enterprise is insufficient to pay off the debt, the investor is required to bear supplementary unlimited liability for the insufficient part.