The Research About Creditor's Rights Contribution In Company Law

In the history of the reformation in corporation system in our country's companies, the company capital system reforms were involved, which often became the key part of company system reforms. With the background of comprehensively deepen reforms, at the end of 2013 to early 2014 a new round of reform of company system begins, and the content of this reform focuses on the company capital system, instead of the registration of paid-in capital which becomes the registration system of the subscribed. For this at the end of 2013 our country revised the Company Law of the Peoples Republic of China, and some related laws and regulations such as the Regulation on Administration of Registration of Company's Registered Capital is modified at the beginning of 2014. According to the central government, with the new company capital system, the contribution amount, contribution period and the way of capital contribution are negotiated by the shareholders (promoter) themselves. But the revise of Company Law only involves the contribution amount, contribution period, etc., not covers the change of the mode. This paper argues that as the constituent elements of corporate capital system, the contribution mode should also be consistent with the pace of reform and complement each other in the system of company capital deepening reform. In this paper, expanding the types of contribution modes and producing the best of the variety of property in the company operating as possible, is a direction of the contribution system reform in our country. Creditor's rights contribution is a way of expanding contribution, and one of the contents to increase the use of the property. Based on the insufficient of the reform of company capital system as the breakthrough point, and a comprehensive summing up of our country's company contribution system, this article makes a general analysis on the company capital system which is the weak step in the way of contribution; and put forward a basic assumption on the construction of the system. Besides an introduction, the article is divided into six chapters.In the introduction I point out the research background of creditor's rights contribution, the research purpose, the present research of theoretical on this question, the author's research methods. The background of this article is that as the most important commercial subject or the economic organization in the market economy, the company keeps constantly changing in its development. As a result, the company law comes into being. In order to meet the needs of the development of company, countries in the world began to make a large scale of modern company law reform since 20th century, and one of the contents in the reformation is the company capital system. Under the situation of our country is facing a comprehensively deepen reform, the company capital system-centered reformation makes the reform of company capital system into the top level design, in accordance revised the Company Law. However, the deficiency of this modification is that the forms of capital contribution have not been involved. The introduction points out the shortage of the reformation of company capital system, under this background, this article analysis suggests that under the current company capital system, the forms of capital contribution still have its significance, with this point, the creditor's rights contribution should be one of them. The purpose of this research is to provide a reference to perfect the Company Law, at the same time to offer an idea at the thought of contribution for creditor's rights circulation system. The introduction analyzes the current research situation in creditor's rights contribution and points out that the problems in creditor's rights contribution are relatively weak in civil and commercial law educational research and there are necessary to be strengthened for the establishment and perfection of the related system in theoretical support. Besides that the introduction presets the research ideas and the research methods.The first chapter discusses the problems in contribution forms at the vision of reformation of company capital system. First of all, it analyzes the connotation of company capital system and makes an introduction about the current world trends in company capital system reforms, this part also reviews the formation and reformation in company capital system in China and indicates that our country is not an unitary system of company capital but the complexity two-track system or dualistic structure, and then predicts the direction of the company system reform in our country. In the next this chapter analyzes the issues of the modernization of capital system which under the background of the global Company Law modernization reform. As a whole, despite the modernization reform direction of the company law is correct, there are still insufficient; the contribution mode is one of the problems. This article argues that even in the most freedom (under the authorized) company capital system, the contribution mode is still needs to be regulated. This mode has not keep up with the pace of the global modern Company Law reform; what's more, it did not reflect the latest achievements of the development of human society, which including the creditor's rights contribution. On the investigation of the Company Law in mainly countries or regions, this chapter believes that the problems of contribution mode exist in any systems. For the subscribed capital system in our country, this chapter analyzes the meaning of subscribed capital system, and indicates that the essence of subscribed capital system is still belongs to the legal capital system but not the authorized capital system. In our country, subscribed capital system still needs the minimum registered capital, or at least one Yuan. This chapter argues that under the subscription capital system, we should broaden the scope of contribution mode as possible; the mode of the contribution is the combination of compulsory measures and arbitrary measures which means with the legal provisions of the contribution mode, the specific way of capital contribution could be chosen by the parties. Creditor's rights contribution is the one of the content of the mode be broadened, which should be within the limits of law, and allows the investor to choose the way of creditor's rights contribution to set up companies or increase the company's registered capital.The second chapter introduces some basic theories of creditor's rights contribution, and puts forward some legislation suggestions to perfect the creditor's rights contribution. First of all, this part analyzes the definition of the creditor's rights contribution, and distinguishes it from debt-to-equity which has been running in our country, points out that the "debt-to-equity" is one of the creditor's rights contribution. At this point, this part makes a comparison on some conceptions, such as creditor's rights contribution, creditor's rights circulation, the assignment of creditor's rights, the debt payment in stock and so on, there are some relations among them, but the difference takes the main part. On the classification of the creditor's rights contribution, there are three standards:the first is the securitization of creditor's rights contribution and non-securitization of creditor's rights contribution, the second is the creditor's rights contribution to the debtor (the company) and the creditor's rights contribution to a third person, the third is the matured creditor's rights contribution and the immature creditor's rights contribution. And then by reviewing the practice of creditor's rights contribution in our country, we can summarize its change and progress. Then this part also introduces the legislation of creditor's rights contribution in China, and gives an analysis of the characteristics of creditor's rights contribution legislation in China and its deficiencies. There are four characteristics in our country's creditor's rights contribution legislation:practice precedes legislation, special law prior to the general law, priority of law at the lower level over that at the higher level, differences between inside and outside. Then this part analyzes the status of the creditor's rights contribution in the Company Law in our country, and indicates that in our country's Company Law, the creditor's rights contribution experienced the process of explicitly banned to the "limited release". At present, there two problems exist, the first one is the general sense of creditor's rights contribution has not been recognized by the general law and the basic law, the second one is that the special law stipulates too narrow in the scope of the creditor's rights contribution. Finally on the basis of sufficient demonstration of theoretical on creditor's rights contribution, which should be a way of capital contribution of the company law,to perfect the legislation of creditor's rights contribution, a suggestion that make capital contribution in company law to be confirmed in the company law. The article argues that, the theoretical foundation of creditor's rights contribution is that the creditor's rights contribution belongs to the property right in "civil rights", and be equal with property right and intellectual property, which constitute the complete system of property rights; the "property" of creditor's rights is the foundation of creditor's rights contribution; the creditor's rights has it valuation and trading operation mechanism; the risk of creditor's rights contribution can not enough to be the reason for the rejection of capital contribution. To perfect the legislation of creditor's right contribution in Company Law, we should make a start from those three aspects:first of all, a complete system of the formation of legal form should include laws, regulations, rules and judicial interpretations; secondly, to extend the scope of creditor's rights contribution from its subjects, objects and other aspects; at last, to build a complete system which including procedural system, risk prevention mechanism and benefit protection mechanism.The third chapter discusses the key elements of creditor's rights contribution system which is the object of creditor's rights contribution. Due to the characteristics of the creditor's rights itself, and the diversity of creditor's rights, first of all, this article puts forward its own original view about the feasibility of the creditor's rights contribution which is the object of constitutive requirements. With special emphasis on that we should distinguish the two conceptions between feasibility of the creditor's rights contribution and the conditions of the creditor's rights contribution. The feasibility of the creditor's rights contribution is the most essential attribute to the contributor and also the essential attribute to the matter of subject; however, the conditions of the creditor's rights contribution is based on the situation that the matter of subject meets the specific requirements of the feasibility, it's the extension of feasibility. This paper argues that the capital contribution of creditor's rights should have two elements:the first is turn into an independent property which can circulate by completely separate from its reason or basic relationship; the second is to act as currency to value evaluation and the means of payment. Then,on the basis of reasonable classification of creditor's rights, the typical of creditor's rights can be used for capital contribution of creditor's rights and it should be come from commercial act, the creditor's right due to the pure civil activities should be restrict. In particular, it includes the three major categories:securitization of creditor's rights, contract of creditor's rights, and the effective legal documents of non-contractual creditor's rights which have been affirmed by the people's court or arbitration institution. The securitization of creditor's rights includes the bill creditor's rights and the bond creditor's rights. The bill creditor's rights include three kinds of creditor's rights that is the draft, the promissory notes and the cashier's check; the bond creditor's rights include the public bonds and the corporation bonds, but due to the character of atypical creditor's rights, the stock options and the stock warrants are not suitable for contribution. The contract of creditor's rights is the named contact of creditor's rights, and is the most typical receivables in contract creditor's rights. The tort obligation creditor's rights, negotiorum gestio creditor's rights and unjust enrichment creditor's rights are conformed by the people's court or the arbitral institution can also be used for contribution. At the same time, they can contribute to the company creditor's rights and the creditor's right to a third person; they can also contribute to expired claims and undue claims. Finally, this part gives an analysis on several types of the special circumstances of creditor's rights contribution. This paper argues that, the single subject of creditor's rights and the plural subjects of creditor's rights can be used for contribution; the creditor's rights which is attached with conditions can not be used for contribution; the creditor's rights with termination duration should not be used, but the rights with for deadline can used for contribution; the incomplete creditor's rights can not be used; the property insurance rights can not be used, but the life insurance rights can be used for contribution. The continuous of the same creditor's rights contribution or the cycle contribution belongs to the abuse of creditor's rights contribution which should be limited. Securitization of creditor's rights, the judgment documents is in effect by the court or the arbitration organization which confirms the rights can not be used for division contribution. The pure debt capital contribution or the generalized debt capital contribution should be allowed.The fourth chapter points out some constructions and designs of specific systems on the creditor's rights contribution. As one of the contribution modes, the specific systems of creditor's right's contribution and the other systems have something in common. At the same time, due to the particularity of creditor's rights contribution which determined its differences to the others. With the characteristics of creditor's rights contribution and its different types, this part presents the discussion on the publicity, vote, evaluation, capital verification and delivery of creditor's rights contribution, which puts forward some original views. For the publicity of creditor's rights contribution, this paper argues that problems in publicity are exist in the circulation of creditor's rights, traditional theory thinks that as the relativity of creditor's rights it should not be in public which is wrong. The significance of publication is to ensure the security of transaction and make it convenience to the related subject to decide whether to accept the creditor's rights contribution or not. The contents of publication should be in difference in the stage of establishment or the stage of capital increase, or the stage after the company set up trading with a third person. The way of public is different for internal public and external public. The internal way involves the certificate for credit rights and the registration of charter; the external way includes registration system, the publication of registration information, query and the continuous information public in listed company. The vote in creditor's rights contribution should be passed by sponsors at the company set up stage, and be conducted in accordance with the regulation of the Company Law at stage of company capital increase. The creditor's rights contribution should be fixed a price, which is not equal to evaluation; it could be negotiated by related subjects or the appraisal agency, and the evaluation is not a mandatory procedure. The related subjects can make their own decision about whether to verification the creditor's rights contribution or not. The creditor's rights contribution must be paid, that is to say, the capital contribution pay to the company to form the company's property. Due to the different kinds of creditor's rights, the ways of payment are different. The payment of bill contribution is to delivery the certification, and this paper especially argues that the Law of Negotiable Instrument should include endorsement for collection and endorsement of pledge or a similar nature of "capital contribution endorsement". The unregistered debenture should delivery the certification of contribution, besides that, the registered bonds should also be endorsed, and the convertible bonds to the third party, the way of its delivery is the same as the registered ordinary company bonds. The delivery program of contract creditor's rights contribution is that the contributor sign the contribution documents with acceptor, and then hand over the documents, records are in the contract, at last to inform the debtor. The none-contract contribution payment conformed by the effective legal document of people's court or the arbitration organization is similar to the payment of the contract creditor's rights contribution.The fifth chapter is based on the analysis of the legal risk in creditor's rights contribution and proposed a few suggestions. Although there are some risks in this area, we can still effectively prevent that. At the same time, as a commercial act, the creditor's rights contribution should obey the sprit of autonomy of will to the full and should not be generalization. The risk prevention measures include compulsory measures and arbitrary measures which are designed by different capital system. This article argues that, for the legal capital system of company's creditor's rights contribution, the risk prevention measures should put compulsory measures to the first place, including the limitation of contribution type of creditor's rights, creditor's right contribution proportion limit, and special rules on the procedure, publication and so on. For the subscribed capital system, the risk prevention measures include compulsory measures and arbitrary measures. The compulsory measures include publication, evaluation, information, internal supervision and external review system. The arbitrary measures include guarantee, proportional limit, commitment, notarization and reduced price.The sixth chapter analyzes the influence to the interests on different stakeholders as the creditor's rights contribution, based on this point design a protection mechanism about creditor's rights contribution. First of all, this part introduces the general theory about company's relevant stakeholders and makes a specific scope of company stakeholders. In this point, this chapter analyzes the basic meaning and makes a specific scope of the relevant stakeholders in creditor's rights contribution, which include the other contributors or shareholders, the creditors before contribution, company, the creditors after contribution or the trading party, the debtor of creditor's rights contribution. And then analyzes the impact on the different relevant stakeholders by creditor's rights contribution, the impact to the other contributors or the other shareholders is that when the contributors did not fulfillment its obligation, the other contributors or shareholders should take the joint liability. The impacts on the company's interest include the establishment of the company, the guarantee ability and the operation of the company. The impacts on the capital contributor before contribution include the equality opportunities of creditor's rights contribution to the other contributors, the influence of distribution of the bankruptcy property to other contributors when the company went bankrupt. The impact to the trading party or the contributor after contribution is mainly includes the trading opportunities and the adoption of transaction security measures. The impact on the contributor is that this behavior may increase the burden of fulfillment and increase the performing costs. At the last, advices are proposed to protect the interests of the creditor's rights contribution under this mechanism, to protect the interests of other contributors is the contributors' responsibility for breach of contract. To protect the company's interests, mainly includes the responsibility to fulfill the capital of creditors, to distinguish the contributors did not meet the deadline of payment, the actual payment is significantly below the articles of corporation, the contribution of creditor's rights can not be paid at the appointed time and have different institutional arrangements for fulfilling responsibility. To protect the interests of the creditors is the supplementary liability which includes the compensation of the contributors, the directors and the senior administrators; the personality denial system which aims at the creditor's rights contribution, under the certain conditions should deny the company's independent legal personality, as a result the contributors take the joint liability to the company's creditors.