| Corporate capital system is one of the most basic systems in the company law, has been paid dramatic attention by the company legislators in all countries, and has been continually considered and reformed. Among the three major corporate capital systems, the statutory capital system in the countries within the continental law system and the authorized capital system in the countries within the Anglo-American law system own their respective advantages and disadvantages. In comparison, eclectic capital system reasonably does not only combine the advantages of different capital systems in both law systems, but also pays attention to overcoming their respective deficiencies and drawbacks, and thus possesses relatively scientific theoretical design and practical advantages.China adopts a statutory capital system which is stricter than that in the countries within the continental law system, and has many deficiencies. As is common in reality, the shareholders'refusal of capital contribution, false capital contribution, delay capital contribution, surreptitious withdrawal of capital contribution, etc situation against the obligation of capital contribution are closely related to this strict statutory capital system. Consequently, many Chinese scholars of the company law advocate reforming corporate capital system, and implementing eclectic capital system.The new Company Law adopts eclectic capital system, which greatly decreases the capital limitation of establishing a company, permits paying capital contribution in installments, extends capital forms, expands the scope of shareholders'capital contribution, satisfies the actual needs of shareholders and corporate capital contribution to the maximum extent, and is helpful to prevent the defective capital contribution of shareholders to some extent.In the corporate system, the shareholders'capital contribution is of great importance. It is not only the material basis of establishing a company but also a vital way of forming corporate capital, and the basis of corporate capital credit. It does not only represent the shareholders'obligations for the company, but is also the material premise of shareholders'limited responsibility for the company. The author deems that the shareholders'capital contribution is not only a consensual obligation, but also a statutory obligation.In reality, there are various forms of the defective capital contribution of shareholders, which can be mainly categorized into such three situations as capital contribution failure, inappropriate capital contribution, and surreptitious withdrawal of capital contribution, according to the factual change of capital contribution. Capital contribution failure includes capital contribution failure due to willingness, capital contribution failure due to capability, false capital contribution, etc. Inappropriate capital contribution mainly includes incomplete capital contribution, delay contribution and defective payment, etc.The nature of defective capital contribution differs according to different time of occurrence and different objects impaired. Firstly, the behavior of defective capital contribution occurs when the doer has not been qualified as a shareholder before the registration and establishment of the company. On this condition, it belongs to the behavior of breach. Secondly, the behavior of defective capital contribution occurs when the doer has been qualified as a shareholder before the registration and establishment of the company. On this condition, as for other shareholders it belongs to the behavior of breach as well; as for the company, it is a both breach and tort behavior; as for corporate creditors, scholars propose such five theories as formal deception theory, factual deception theory, contract preservation theory and legal obligation theory. Among these theories, formal deception theory, factual deception theory and legal obligation theory advocate the behavior of tort, while contract preservation theory the behavior of breach. In the author's opinion, it is suitable to apply contract preservation theory and legal obligation theory to the situation of the shareholders'failure of capital contribution and inappropriate capital contribution; it is more proper to apply factual deception theory to the situation of the shareholders'surreptitious withdrawal of capital contribution after the establishment of the company. Thirdly, the behavior of defective capital contribution occurs after the registration and establishment of the company, which mainly refers to the surreptitious withdrawal of capital contribution. On this condition, as for other shareholders and corporate creditors, it belongs to the behavior of tort.The defective capital contribution of shareholders will certainly affect the corporate independent personality, and lead to the application of the system of disregarding the corporate personality. The last Chinese Company law does not regulate the system of disregarding the corporate personality. The Article 20 of the new Company law brings in the corporate independent personality that originates from the west, and raises its position to written legislation, which is helpful to prevent the defective capital contribution of shareholders, and provides a strong legal tool for effectively prohibiting the abuse of corporate personality. However, the new Company law does not regulate the rules and essential elements of the application of disregarding the corporate personality, which needs normalizing by the judicial interpretation of the Supreme Court and the judges'typical cases.The civil legal liability for the defective capital contribution of shareholders mainly includes the following: the first one is the breach liability for other shareholders, which is applicable to both limited liability companies and join stock limited companies. If all shareholders conduct the defective capital contribution, they should assume relevant breach liability for each other, and their liquidated damages for breach of contract or compensation damages can be compensated for each other. However, both the new and the last Company Law have neither clarified the specific forms of breach liability, nor the corporate breach liability. However, the company law in other countries usually dose not only regulate the breach liability for the shareholders'capital contribution but also the relevant remedy means, including the cancel of shares, the recovery of capital contribution, the compensation for damage, and the punitive rules of interest and deposit. The second one is the liability of making up the difference for the company and other shareholders'liability of supplying corporate capital. The author deems that the liability of supplying capital is not only applicable to limited liability companies, but also to cash capital contribution. The third one is the liability of compensation for corporate creditors. Firstly, if the actual capital contributed by a shareholder does not reach the minimum amount regulated by the company law, it should be assumed that the unlimited liability of compensation for corporate debt. Secondly, if the capital contributed by a shareholder does not reach the amount recorded by corporate articles, but reaches the minimum amount regulated by the company law, it should be assumed that the liability of compensation for creditors within the scope of violating the obligation of capital contribution. However, the shareholders with complete contribution still have to assume joint liability for corporate creditors. The fourth one is the tort liability for the company, among the civil liability of the shareholders who surreptitiously withdraw capital contribution; the breach liability for other shareholders; the compensation liability for corporate creditors. If the surreptitious withdrawal of capital contribution makes the corporate actual capital lower than the minimum amount regulated by the company law, the system of disregarding the corporate personality should be applied, and the shareholders who surreptitiously withdraw capital contribution should assume unlimited joint liability for corporate debt. If a shareholder's behavior of surreptitiously withdrawing capital contribution acquires the cooperation, assistance, or even mutual collusion of other shareholders, directors and managers, the latter should assume the joint liability for the shareholder's surreptitious withdrawal of capital contribution. |
