Study On Defective Capital Contribution Of Shareholders

The capital contribution of shareholders decides on the establishment of a company and its ordinary operation, the acquisition and limitation of qualification of shareholder and safeguarding and protecting the benefit of creditor. It is significant to a company, shareholders, creditors and the society. Therefore it needs to be focused and safeguarded by law. However, because of backward theory study on the capital contribution of shareholders, defective legislation and inharmony of judicial application, the things about the defective capital contribution of shareholders are severe. Under this situation the 1504th meeting by the trial committee of Supreme People's Court agreed with the 3rd Provisions of the Supreme People's Court on Several Issues Concerning the Application of the PRC Company Law (judicial interpretation 3rd for short). It regulates and corrects the shortcomings and bugs in Company Law, especially makes a lot of rules to Defective Capital Contribution of Shareholders(the interpretations includes 29 articles, 22 articles is about Defective Capital Contribution of Shareholders),it involves judicial assertion of Capital Contribution of Shareholders, application of limitation of actions, liability of pat to the proof opposite place, liability and joint liability of the third person etc. This paper studies civil liability of defective capital contribution with the rules of Judicial Interpretation 3.This paper consists of the following four parts:The first part discusses the nature of capital contribution of shareholders starting from the assertion of stockholders and definition of Capital Contribution of Shareholders. The legality of obligation of Capital Contribution of Shareholders determined by the nature of juscogens of company law is undoubtable. But the free will of capital contribution of shareholders is also undoubtable. The contractual nature of capital contribution of shareholders should be replaced by common legal act theory because its defect of interpretation cannot solve the problems during stockholders contribute. Therefore, as for the nature of stockholders contributing it should be studied through the legality and common legal act. The defective problems during stockholders contribute should be solved by the theory of legality and common legal act.The second part involves the definition, main forms and impair of defective capital contribution of Shareholders, and analyses the legal reson of defective capital contribution of Shareholders. it means after a company set up or during its capital increase stockholders breaches legal or agreed obligations and do not contribute capital according to initiato agreement, agreement of stockholders contributing capital, articles of corporation or company law the paper holds that the form of defective capital contribution is the theoretical form and legal assertion form. That is the form determined by interpretation 3. as to the damage of defective capital contribution of shareholders, the paper discusses the damages to companies, shareholders who have performed the obligation of contributing capital, creditor and the society. The paper believes that firstly contribution by installment of registered capital is convenient for defective capital contribution of shareholders, secondly the disharmony of right and liability of shareholders indirectly leads to defective capital contribution of shareholders, and thirdly the regulation by company law lacks safeguarding of procedural regulation.The third part discusses the civil liability of defective capital contribution of shareholders. Shareholders of defective capital contribution, should not only assume the liability to company, but also assume the liability for creditors and those who have performed the obligation of stockholder. As for the liability to a company, the paper analyses the nature and mode of liability. As for the liability of stockholders who have performed the obligation of contributing, the paper analyses whether stockholders who defectively contributes should assume liability to other stockholders and the nature, criterion of liability, forms of liability and liability to creditors. As for the liability to creditors, the paper discusses the meaning, shortcomings and perfectness of disregard of corporate personality by company law for creditor, and the forms of assuming liability. In addition, in this part also discusses the liability of other stockholders, directors, senior managers and other third person and problems about assuming liability of defective contribution after equity stake transferred.The fourth part raises suggestions on the reconstruction of system about civil liability of defective capital contribution of shareholders. Firstly, perform the system of stockholders contributing capital. Secondly, set up multiple liability forms of stockholders breaching contributing capital obligation. Thirdly, strengthen the protection to right and interest of creditors. Fourthly, perfect the procedural regulation of liability of defective capital contribution of shareholders...