来源：法学 45 度         整理：徐忠兴

    我国公司法中对连带责任的规定，大体可以分为两种情形：一是公司内部的连带责任，二是公司外部的连带责任。

   一、公司内部的连带责任

    1.股东出资不足的连带责任 。《公司法》第三十条规定： “有限责任公司成立后，发现作为设立公司出资的非货币财产的实际价额显著低于公司章程所定价额的，应当由交付该出资的股东补足其差额；公司设立时的其他股东承担连带责任。”第九十三条规定：“股份有限公司成立后，发起人未按照公司章程的规定缴足出资的，应当补缴；其他发起人承担连带责任。股份有限公司成立后，发现作为设立公司出资的非货币财产的实际价额显著低于公司章程所定价额的，应当由交付该出资的发起人补足其差额；其他发起人承担连带责任。”《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定（三）》第十三条第一款规定：“股东未履行或者未全面履行出资义务，公司或者其他股东请求其向公司依法全面履行出资义务的，人民法院应予支持。”第三款规定：“股东在公司设立时未履行或者未全面履行出资义务，依照本条第一款或者第二款提起诉讼的原告，请求公司的发起人与被告股东承担连带责任的，人民法院应予支持；公司的发起人承担责任后，可以向被告股东追偿。”

   2.股东抽逃出资对公司的连带责任 。《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定（三）》第十四条第一款规定： “股东抽逃出资，公司或者其他股东请求其向公司返还出资本息、协助抽逃出资的其他股东、董事、高级管理人员或者实际控制人对此承担连带责任的，人民法院应予支持。”

   3.瑕疵出资股权转让后对公司的连带责任 。《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定（三）》第十八条规定： “有限责任公司的股东未履行或者未全面履行出资义务即转让股权，受让人对此知道或者应当知道，公司请求该股东履行出资义务、受让人对此承担连带责任的，人民法院应予支持；公司债权人依照本规定第十三条第二款向该股东提起诉讼，同时请求前述受让人对此承担连带责任的，人民法院应予支持。受让人根据前款规定承担责任后，向该未履行或者未全面履行出资义务的股东追偿的，人民法院应予支持。但是，当事人另有约定的除外。”

   4.发起人对公司不能成立时的连带责任 。《公司法》第九十四条第（二）项规定，股份有限公司不能成立时，发起人对认股人已缴纳的股款，负返还股款并加算银行同期存款利息的连带责任。《民法典》第七十五条第一款规定： “设立人为设立法人从事的民事活动，其法律后果由法人承受；法人未成立的，其法律后果由设立人承受，设立人为二人以上的，享有连带债权，承担连带债务。”

  二、公司外部的连带责任

   5.股东滥用公司法人独立地位和股东有限责任的连带责任 。《公司法》第二十条规定： “公司股东应当遵守法律、行政法规和公司章程，依法行使股东权利，不得滥用股东权利损害公司或者其他股东的利益；不得滥用公司法人独立地位和股东有限责任损害公司债权人的利益。公司股东滥用股东权利给公司或者其他股东造成损失的，应当依法承担赔偿责任。公司股东滥用公司法人独立地位和股东有限责任，逃避债务，严重损害公司债权人利益的，应当对公司债务承担连带责任。”

    6.一人有限责任公司财产混同时的连带责任 。《公司法》第六十三条规定： “一人有限责任公司的股东不能证明公司财产独立于股东自己的财产的，应当对公司债务承担连带责任。”

   7.公司不能成立时的连带责任 。《公司法》第九十四条第（一）项规定，股份有限公司不能成立时，发起人对设立行为所产生的债务和费用负连带责任。《民法典》第七十五条第一款规定： “设立人为设立法人从事的民事活动，其法律后果由法人承受；法人未成立的，其法律后果由设立人承受，设立人为二人以上的，享有连带债权，承担连带债务。”《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定（三）》第四条第一款规定：“公司因故未成立，债权人请求全体或者部分发起人对设立公司行为所产生的费用和债务承担连带清偿责任的，人民法院应予支持。”

   8.公司分立时的连带责任 。《公司法》第一百七十六条规定： “公司分立前的债务由分立后的公司承担连带责任。但是，公司在分立前与债权人就债务清偿达成的书面协议另有约定的除外。”

   9.清算组成员对债权人因未及时申报债权而未获清偿的损失应承担的连带赔偿责任 。《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定（二）》第十一条规定： During company liquidation, the liquidation group should, in accordance with the provisions of Article 185 of the Company Law, notify all known creditors in writing of the company's dissolution and liquidation matters, and announce it in influential newspapers nationwide or in the province where the company is registered, depending on the company's scale and business scope. If the liquidation group fails to fulfill the notification and announcement obligations as stipulated in the preceding paragraph, resulting in creditors failing to declare their claims in a timely manner and not receiving repayment, and the creditors claim that the members of the liquidation group should bear the liability for compensation for the resulting losses, the people's court should support it in accordance with the law. Although the second paragraph of this article does not explicitly stipulate the form of compensation liability among members of the liquidation group, the failure of the liquidation group members to fulfill the notification or announcement obligations constitutes joint infringement, therefore, they should bear joint and several liability in accordance with the law. After some members of the liquidation group bear the compensation liability, they can seek recourse from the members who are at fault.

10. Joint and several liability for the liquidation group's execution of an unconfirmed liquidation plan Article 15, paragraph 2 of the "Supreme People's Court on the Application of Several Issues Concerning the Company Law of the People's Republic of China (II)" stipulates: If the execution of an unconfirmed liquidation plan causes losses to the company or creditors, and the company, shareholders, directors, other interested parties of the company, or creditors claim that the members of the liquidation group should bear the liability for compensation, the people's court shall support it in accordance with the law. Since the formulation and execution of the liquidation plan is a joint action of all members of the liquidation group, all members of the liquidation group are an entity of rights and obligations when performing their duties of formulating and executing the liquidation plan, and are also an entity that bears responsibility, therefore, they should bear joint and several liability externally. However, members of the liquidation group who have borne the compensation liability can, within the scope of their compensation, seek recourse from other members of the liquidation group who are responsible according to internal responsibilities.

11. Joint and several liability for the failure of the liquidation obligor to perform their obligations Article 18, paragraph 2 of the "Supreme People's Court on the Application of Several Issues Concerning the Company Law of the People's Republic of China (II)" stipulates: If the shareholders of a limited liability company, the directors and controlling shareholders of a joint-stock limited company, due to their failure to fulfill their obligations, cause the loss of the company's main property, accounts, important documents, etc., making it impossible to carry out liquidation, and the creditors claim that they should bear joint and several liability for the company's debts, the people's court shall support it in accordance with the law. The "joint and several liability for the company's debts" here includes two aspects: first, the liquidation obligor and the company bear joint and several liability for the company's debts; second, the liquidation obligors should bear joint and several liability for the repayment of the company's debts.

12. Joint and several liability for the malicious disposal of company property and fraudulent cancellation of registration by the liquidation obligor Article 19 of the "Supreme People's Court on the Application of Several Issues Concerning the Company Law of the People's Republic of China (II)" stipulates: After the dissolution of a limited liability company, the shareholders of a limited liability company, the directors and controlling shareholders of a joint-stock limited company, and the actual controller of the company maliciously dispose of the company's property causing losses to creditors, or without legally liquidating, obtain fraudulent liquidation reports to deceive the company registration authority into handling the legal person's deregistration, and the creditors claim that they should bear the corresponding compensation liability for the company's debts, the people's court shall support it in accordance with the law. In the circumstances stipulated in this article, if there are multiple liquidation obligors and actual controllers, the multiple liquidation obligors and actual controllers should bear joint and several liability.

13. Joint and several liability for companies that deregister without legal liquidation Article 20 of the "Supreme People's Court on the Application of Several Issues Concerning the Company Law of the People's Republic of China (II)" stipulates: A company's dissolution shall apply for deregistration after the legal liquidation is completed. If a company deregisters without liquidation, resulting in the company being unable to liquidate, and creditors claim that the shareholders of the limited liability company, the directors and controlling shareholders of the joint-stock limited company, and the actual controller of the company should bear the liability for the company's debts, the people's court shall support it in accordance with the law. If a company deregisters without legal liquidation, and the shareholders or third parties promise to bear the company's debts when handling the deregistration with the company registration authority, and the creditors claim that they should bear the corresponding civil liability for the company's debts, the people's court shall support it in accordance with the law. The repayment liability between the responsible parties stipulated in this article is a joint and several liability, because their illegal acts constitute a joint infringement.

14. Joint and several liability for shareholders who have not paid their capital contributions Article 22, paragraph 2 of the "Supreme People's Court on the Application of Several Issues Concerning the Company Law of the People's Republic of China (II)" stipulates: If the company's property is insufficient to repay its debts, and the creditor claims that the shareholders who have not paid their capital contributions, and other shareholders or promoters at the time of the company's establishment should bear joint and several liability for the company's debts within the scope of unpaid capital contributions, the people's court shall support it in accordance with the law.

15. Joint and several liability for shareholders whose capital contributions do not reach the minimum statutory registered capital In the case of defective capital contribution by shareholders, if the total capital contribution of the shareholders does not reach the minimum statutory registered capital, then because the company does not have "property or funds", a necessary condition for the establishment of a legal person, although the "company" has formally completed the industrial and commercial registration and obtained a business license, the company still does not have legal person status, and the company shareholders should bear unlimited joint and several liability for the company's debts. This point has been widely agreed upon in the company law academia and judicial practice.

16. Joint and several liability for compensation for losses caused by members of the liquidation group in conducting liquidation affairs Article 23, paragraph 1 of the "Supreme People's Court on the Application of Several Issues Concerning the Company Law of the People's Republic of China (II)" stipulates: When members of the liquidation group conduct liquidation affairs, if they violate laws, administrative regulations, or the company's articles of association, causing losses to the company or creditors, and the company or creditors claim that they should bear the liability for compensation, the people's court shall support it in accordance with the law. If the members of the liquidation group are not one person but several, if the wrongful acts of the members of the liquidation group violate the obligations imposed on the liquidation group as a whole by law, such as the obligation to make appropriate announcements, then all members of the liquidation group shall bear joint and several liability, regardless of whether they are at fault, because the obligations and responsibilities of the liquidation group as a whole should naturally be borne by all members of the liquidation group, and internal factors among members of the liquidation group cannot be used against external third parties. Of course, members of the liquidation group who are not at fault can seek recourse from the members who are at fault after bearing the compensation liability.

17. Joint and several liability for promoters' official infringement caused by the establishment of the company Article 5 of the "Supreme People's Court on the Application of Several Issues Concerning the Company Law of the People's Republic of China (III)" stipulates: If the promoters cause harm to others due to the performance of their company establishment duties, and after the company is established, the victim requests the company to bear the liability for tort compensation, the people's court shall support it; if the company is not established, and the victim requests all promoters to bear joint and several liability for compensation, the people's court shall support it. The company or the promoter who is not at fault can seek recourse from the promoter who is at fault after bearing the liability for compensation.

18. Joint and several liability of shareholders to creditors for failure to fulfill or fully fulfill their capital contribution obligations 。Article 13, paragraph 2 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) stipulates: "If a company creditor requests that a shareholder who has not fulfilled or fully fulfilled its capital contribution obligations bear supplementary compensation liability for the portion of the company's debts that cannot be repaid within the scope of unpaid capital and interest, the people's court shall support it; if the shareholder who has not fulfilled or fully fulfilled its capital contribution obligations has already assumed the above-mentioned liability, and other creditors make the same request, the people's court shall not support it." Paragraph 3 stipulates: "If a shareholder fails to fulfill or fully fulfill its capital contribution obligations at the time of company establishment, and the plaintiff who initiates a lawsuit in accordance with paragraph 1 or 2 of this article requests that the company's promoters and the defendant shareholder bear joint and several liability, the people's court shall support it; after the company's promoters assume liability, they may seek recourse from the defendant shareholder."

19. Joint and several liability of shareholders for the withdrawal of capital contributions to creditors 。Article 14, paragraph 2 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III) stipulates: "If a company creditor requests that a shareholder who has withdrawn capital contributions bear supplementary compensation liability for the portion of the company's debts that cannot be repaid within the scope of the withdrawn capital and interest, and that other shareholders, directors, senior managers, or actual controllers who assisted in the withdrawal of capital contributions bear joint and several liability, the people's court shall support it; if the shareholder who has withdrawn capital contributions has already assumed the above-mentioned liability, and other creditors make the same request, the people's court shall not support it."

20. Joint and several liability of creditors for defective capital contributions after equity transfer 。《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定（三）》第十八条规定： “有限责任公司的股东未履行或者未全面履行出资义务即转让股权，受让人对此知道或者应当知道，公司请求该股东履行出资义务、受让人对此承担连带责任的，人民法院应予支持；公司债权人依照本规定第十三条第二款向该股东提起诉讼，同时请求前述受让人对此承担连带责任的，人民法院应予支持。受让人根据前款规定承担责任后，向该未履行或者未全面履行出资义务的股东追偿的，人民法院应予支持。但是，当事人另有约定的除外。”

Further reading:

From the above provisions of China's Company Law on joint and several liability, the provisions on the joint and several liability of company shareholders (or promoters) within the company involve two parties: one is the company shareholders (or promoters), and the other is the company (or subscriber). When shareholders (or promoters) are in the majority, the way in which several shareholders (or promoters) bear liability is joint and several liability. The provisions on the joint and several liability of company shareholders to external parties involve three parties: shareholders, the company, and creditors. The Company Law clearly stipulates that the way in which shareholders and the company bear responsibility for company debts is joint and several liability, but when shareholders are in the majority, the Company Law does not clearly stipulate how several shareholders should bear responsibility to creditors.

This issue is addressed in other laws in China, such as Article 932 of the Civil Code: "If two or more trustees jointly handle entrusted matters, they shall bear joint and several liability to the principal." This article is a provision on joint and several liability for breach of contract. Another example is Article 1168 of the Civil Code: "If two or more persons jointly commit a tortious act that causes harm to others, they shall bear joint and several liability." This article is a provision on joint and several liability for tortious acts.

Based on the consideration of urging the liquidator to timely fulfill its liquidation obligations to fully protect the interests of company creditors, Articles 18 and 20 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of the Company Law of the People's Republic of China (II) stipulate that the liquidator shall bear corresponding compensation liability or joint and several liability for losses caused to creditors due to failure to fulfill liquidation obligations. Based on the general legal principles of joint and several liability and the value orientation of foreign legislation, multiple liquidators should bear joint and several liability to creditors. The liquidators of a company should legally be the shareholders of a limited liability company, the directors and controlling shareholders of a joint-stock company. Therefore, when shareholders bear joint and several liability for company debts and shareholders are in the majority, several shareholders should bear joint and several liability to creditors.