| Defective capital contribution of shareholders is an always happened phenomenon in the economic life, and has abroad bad effects. It violates the benefit of company, other shareholders and the creditor of the company. The responsibility person of defective contribution is compound, the person violated by defective contribution is multiplicative, and the responsibility form is variety.Part I, the summarizing of the civil liability of shareholders who have capital contribution defect. Defective capital contribution refers to the shareholder does not fulfill the contributive obligation according to the agreement or constitution. In the economic life, there are many kinds of capital contributive defects. It is necessary to study different kinds of contributive defects in order to have a deep understanding of the liability. It has different effects on the company, other shareholders and the creditors of the company with different kinds of contributive defects. The scope and way of the liability is also different.Defective capital contribution of shareholders involves many kinds of legal relationships. The legal relationship between the shareholders is the contractual relationship based on company constitution and shareholders'agreement. The legal relationship between the shareholders and the company is also the contractual relationship. The liability of the shareholders to the other shareholders and company calls the liability for breach the faith. There is not certain relationship between the shareholder and the creditor. When the defective capital contribution of shareholders violates the benefit of the creditor, the creditor may claim his right towards the shareholders. Part II, the research on the different forms of the liability of the defect contributive shareholders. According to the different objects of the liability, the civil liability of the defect contributive shareholders can be divided into the following types. That is the liability for breach the faith between shareholders and liability between shareholders and company and liability between shareholders and creditor of the company. Firstly this article analyzes the defect contributive shareholders'liability for breach the faith to the other shareholders through the liability forms, the occasion of the liability and so on. No matter the company set up or not, the defect contributive shareholders should undertake the liability. The forms of the liability should be pay for damages and breaching the faith. Secondly this article analyzes the defect contributive shareholders'liability for breach the faith to the company and the other shareholders'liability to the company. The article nails down who claims and how to claims the right when the company's benefit is violated, and the signification, the content and the character of the liability. The party who claim the right can be the company as well as the shareholders. For the liability of enriching capital, which undertaken by the shareholders who have fulfilled the capital obligations, this article nail down the concept and elements of the liability. The content of the liability includes guarantee liabilities for subscription, payment, the fill of the price of the share capital, and the liability for damage caused by them. Thirdly the article analyzes the liability to the creditor of the company. There are two kinds of legal elements here. One is subrogation theory; the other is disregard of corporate personality theory. When the deficiency is so grave that the creditor's benefit is gravely violated, we may disregard the corporate personality. Then the shareholders have to undertake the infinite liability. In other occasion, the shareholders undertake finite liability. Part III, the legislation perfection on the civil liability of defect of capital contribution. The regulation of"corporate law"of our country about the liability is simple and principle. There are few rules on it. They cannot satisfy the need of practical complex economic life. Therefore, this article provides some advice to perfect the actual legislation. First, for liability for breach the faith to the other shareholders and company, suggest referring to the laws of Taiwan and other countries. Add provisions of loss of rights procedures and better the relief system of full funding shareholders. Second, for the liability of enriching capital of full funding shareholders,suggest clarifying the content of the liability of enriching capital and extend its application scope to cover the cases of non-monetary financing and monetary financing, not fulfilling investing adequately and not performing investing. Third, for the liability principle, suggest adding consideration degree of fault. Finally, for the liabilities of the shareholders who have contributive defect to creditor, suggest clarifying whether full funding shareholders and the assignee of defect shares should undertake the liability and the undertaking sequence of liabilities of shareholders who have contributive defect and company for creditor and who undertake the proof liability.The legislation in the actual"corporate law"of our country about the civil liability of the defective capital contribution has made a great progress comparing with the former"corporate law". But there are still some defects to be improved. The study of this article is still superficial. But I believe that with the deep study of the problem of other scholars, there must be a great progress on the liability of defect of capital contribution. And our corporation legislation will be more and more perfection. |
