Judicial Remedy For The Interests Of Company Creditors Under The Subscription System

In 2013, Company Law had a new round of modification. Company Law change to subscription system, Creditors of the company are facing a new crisis. In order to avoid the abuse of shareholders’investment freedom and damage interests of creditors, the subscription system must clarify three issues:Firstly, how to protect the interests of creditors in the case of traditional defective contribution; Secondly, how to protect the interests of creditors if the investor subscription is abnormal low;Thirdly, how to protect the interests of creditors if investors have a long term abnormal resulting in the company’s capital blur. To solve these problems, it must rely on the judicial relief. It is the way that can recover the losses suffered by the creditors. What’s more, the interests of creditors will receive timely and adequate protection.The thesis is divided into 5 parts to discuss:The first part analyzes the new challenges on the interests of the creditor s protection under the subscription system. it analyzes the specific performance of the system established by subscription, and analysis the need to strengthen the protection of creditors under the subscription system, and finally focuses the new issues on the protect the interests of creditors in the subscription system.The second part discusses the legal value about protect the interests of creditors under the subscription system and should have what ideas about judicial remedies. Compare with administrative remedies, judicial relief has a direct and timely compensation function, and can fill the gaps in the legislation, so that make a fair judgment in accordance with judicial practice, highlighting the unique value of judicial remedy; At the same time, it also explores that justice relief should adhere to the concept of interests balance between creditors and shareholders, balance efficiency and equity,and and moderate intervention philosophy.The third part explores how to relieve the creditors’benefits when the shareholders’make a defective capital contribution. At first, the author analyzes the necessity of the judicial relief of the creditor’s benefit in the case of the defective capital contribution, Then it analyzes the specific issues of the judicial relief of the interests of the creditors, mainly including the identification of the defective capital contribution, the analysis of the nature of liability, the elements of the responsibility and the way to bear legal liability.The fourth part points out that funding for the long term abnormal behavior, can consider introducing the procedure of accelerated expires; or initiating proceedings of creditors request shareholders to replenish liquidity when unable to repay maturing debt; when company entering bankruptcy proceeding, may consider the introduction of the principle of Deep Rock, guarantee priority for repayment of creditors.The fifth part, points out that the amount of funding for low abnormal behavior, may consider starting disregard of corporate personality; or set up a guarantee system which creditor ask shareholder who has a abnormally low investment; and finally improve the abnormal low funding companies exit mechanism, to avoid creditors may be secondary hurt.