Lawyer: Even if liquidation of bankruptcy, settlement of user deposit is difficult to return – IT and transportation



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On December 19, Dai Wei, the founder of the small yellow car in the crisis, issued a letter saying that the company was overloaded throughout the year because it did not make a correct judgment on the changes in the external environment from late last year to the beginning this year. Huge cash flow pressure.

Especially in the last six months, the pressure of cash flow and the media has made it impossible for us to do the best we can. Especially after the company is totally looking for funding and without results, I have often counted on reducing operational funds and using them to refund some deposits and suppliers. Delays, even the dissolution of the company, the application for bankruptcy. The user deposit will be refunded, supplier late payments will be paid and the company's operations will be maintained, with one dollar being spent in three yuan.

"I hope that all people can agree and firmly believe that they will not flee, live bravely, be responsible for every penny we owe and be responsible for all the users who supported us!" Said in the middle.

As of 20:37 December 18, the number of users lining up to retire has exceeded 10 million. If calculated at 99 yuan / person, conservative estimate, ofo need to repay the total deposit of about 1 billion yuan, but if calculated at 199 yuan / person, then ofo need to repay up nearly 2 billion yuan on deposit.

Currently, this number is still increasing and at the same time many users have opted to go to Theo's headquarters, request an offline refund and thousands of people on the premises.

On December 17, theo Xiaohuang car announced in its official micro-announcement that "the user who submitted the online application for refund of deposit will review and collect the relevant information according to the application submitted by the application. After verification, the user will enter the refund deposit. Sequence, ofo will be returned in order, if a user visits the company to register, we will merge the information collected in the reimbursement sequence of the online deposit in chronological order, if the user registered under the cable has already initiated the request for refund, according to the time information of the previous queue. "

This means that users will no longer have the advantage of preferential deposit refunds when they line up online, but that does not prevent everyone from visiting the site to retire. At the same time, the number of online deposit repayments also increases dramatically.

Several users have reported to the technology for all climates that have already submitted a request for refund deposit and are still in the process of repayment.

At the moment, the user has no mindset about when he can return the deposit and if he can recover the deposit. Some users fear that this goes bankrupt, can their rights be guaranteed? With these questions, climate technology interviewed Huang Zhiguo, senior adviser to Dacheng Law Firm who had participated in the bicycle case in Xiaoming, and Wu Weiming, a senior partner at Jintiancheng Law Firm. The two lawyers gave answers from a professional perspective.

Technology for all climates: Today, more than 10 million users have lined up to request a refund of the deposit. If ofo do not return, how should users protect their rights?

Huang Zhiguo: Theo charges the deposit.The deposit is based on the agreement with the user.According to the agreement, the consumer must return it after withdrawal. Since this money does not belong to nature, the person who belongs to the deposit must be reimbursed. If not, the consumer may request a refund in the form of litigation or arbitration, and confiscate the property and account of the frozen ofo.

Technology for all climates: If the number of users waiting in line is increasing, and can not reimburse the deposit for a long time, what will happen?

Wu Weiming: This will cause the deposit not to be repaid in full, and the company may also be unable to repay the debt.

Technology for all climates: If the ofo does not reimburse the deposit, does the shareholder of the shareholder need to assume joint and several liability or pay the deposit first?

Huang Zhiguo: In the relevant judicial interpretation of the Supreme People's Court, the main principle is that the shareholders of a limited company are responsible for the amount of their capital contribution. The responsibility of theo shareholders depends on three factors: first, the shareholder has the situation of withdrawing the registered capital or invading the interests of the company, and the registered share capital of the shareholder has not been fully paid and must be replenished under the scope of the subscription. Finally, shareholders confuse their personal consumption with the company, confusing the corporate personality of two different subjects. In such cases, shareholders are required to pay, otherwise shareholders will bear limited liability within the limits of the capital contribution.

Wu Weiming: If there is no misappropriation or fraud, the shareholder's personal liability is generally not involved. Because under corporate law, corporate shareholders are limited, but only if shareholders comply with company law and related laws. If the deposit collected during the normal operation of the business is collected and used according to the rules, it is primarily civil liability, such as reimbursement or compensation, and does not involve criminal liability.

Technology for all climates: If OFO is finally bankrupt and settled, can the user receive the deposit again?

Huang Zhiguo: If bankruptcy is settled, the user deposit will be listed later. The Bankruptcy Law clearly states that in the event of bankruptcy, it must be resolved in order of priority: the first is the bankruptcy liquidation fee, the state tax, the secured creditor's right, the employee's salary etc. The money that must be returned to the customer is placed in the last number. Both are paid. The deposit is an unsecured claim, which is difficult to return after the money order. The Xiaoming bike we deal with is very similar.

Technology for all climates: For the user's deposit, if the shared bicycle company ofofo can be used for other purposes, if not, but has been diverted, is it illegal? If it is illegal, what responsibility does it have to bear?

Huang Zhiguo: The deposit can not be used for other purposes, it is illegal to use it. If misused, it may involve three aspects of legal liability: first, criminal liability, if it is malicious, misappropriation of company assets is suspected of invading company property and misappropriation of funds, but policy the development of private enterprises. The possibility is relatively small, the second is the administrative responsibility, the relevant department of the industry has formulated the corresponding rules for the use of the deposit. If violated, can be punished by the administrative authority, the latter is civil liability, because the undue deposit belongs to the user and the user can request it. Civil compensation.

All-weather technology: According to reports, Xiaoming bicycle filed for bankruptcy at the time, and sold the bicycle recycling in cash at a price of 12 yuan per vehicle. To what extent, does the Xiaoming treatment plan have any reference?

Huang Zhiguo: Xiaoming bicycles have misappropriation of deposits, centralized redemption and insolvency, and theo is similar. Their treatment scheme has some benchmark importance: First, mergers and acquisitions are preferred, secondly, assets are realized at time and interests are given. Party an account. In sum, the core of the user pool is to solve the cash flow source problem, whether to sell assets or to find other ways to raise money.

Technology for all climates: In addition to the user's deposit, the ofo is exposed to billions of debts to be paid. The founding team of the forum is led by Dai Wei, who are also shareholders of the company, what responsibility do they have to assume?

Huang Zhiguo: As a shareholder, the Daiwei team does not need to take responsibility because all contracts are signed between clients and companies, and the shareholders of the company are limited by the value of their capital contribution, and the company itself is limited by its assets. Responsibility, the moral pressure of the Daiwei team is relatively large.If there is not enough evidence to prove that it is necessary to have criminal liability, the law only gives the client the right to civil compensation.In this case, they also prove that they violate the provisions of the Civil right.

Ofo is even more distressed today. On November 28, ofo founder and CEO Dai Wei also issued an internal letter saying, "The winter has come and the snow will follow. In the most difficult times, we still have to stick to our beliefs, even if we are squatting. Living, as long as we live, we have hope! "

Faced with the "queue" of tens of millions of people queuing and queuing, may the old pride of heaven be like what he said throughout his letter: "Do not run, boldly live and be responsible for every penny we owe, Responsible for all the users who supported us! Many people never give up! "This should be checked by time.

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