Reflections On The Mutual Obligation Of Mutual Funding Supervision Among Shareholders

The obligation of mutual supervision between shareholders is the obligation of shareholders to supervise their respective investment status.Provisions of the Supreme People's Court on Several Issues concerning the application of the "People's Republic of China company law"(three)"(hereinafter referred to as the" company law judicial interpretation three < > "provisions of the second paragraph of article thirteenth)is the direct source of the duty to supervise the capital contribution of shareholders,shareholders of other provisions it fails to fulfill the obligation of capital contribution or unfinished shareholders bear joint responsibility to pay in essence,the provisions of the shareholders mutual negative investment supervision duty.In the introduction part,the author introduces a judicial case,analyzes the judicial practice of the shareholder's investment supervision obligation,and puts forward the author's confusion.The defects of the shareholder's capital contribution supervision duty,considering the contradiction between the limited liability of shareholders and the obligation of capital contribution of the shareholders,who is the main body to supervise the shareholders' investment and how to supervise?Along the path of thinking,this paper is divided into four parts.In the first part,the author mainly analyzes the legislative purpose of the mutual supervision of the shareholder's contribution.The author tries to analyze the purpose of the legislation from the angle of capital enrichment,the joint and several liability of sponsors and the protection of the interests of creditors.The capital adequacy is constitute the company's original assets,is to ensure that the company's foreign operations base;a theory that sponsors joint liability is that the sponsor is a partnership between the company,share earnings,risk sharing between the promoters;the protection of the interests of creditors is one of the legislative purpose of the company law of China,there are large capital adequacy extent in order to protect the interests of creditors.In the second part,the author thinks that the drawbacks of the shareholder's mutual investment supervision obligations are divided into the following three parts:the concept of violating the interests of equity,the concept of asset credit and the principle of limited liability of shareholders.The imbalance of interests includes the imbalance among the shareholders,the imbalance between the shareholders and the external creditors,the imbalance between the shareholders and the directors and supervisors,and the asset credit is the responsibility of the company to take the responsibility of all its assets rather than capital.The regulation of mutual investment supervision between shareholders is in essence still adhere to the concept of capital credit to protect the creditors.The obligation of shareholders to bear the burden of investment supervision fundamentally denies the principle of limited liability of shareholders.The third part,through the comparison of foreign law,the Japanese company law and the German company law as the object of comparison,the two countries do not pay for the shareholders of the different treatment measures,and learn from them.The fourth part is to explore the way to solve the problem of corporate autonomy and learn from Japan's board of directors.The shareholder's contribution obligation is the contractual obligations of the company's articles of association,which belongs to the scope of corporate autonomy,and the law should not interfere too much.Will return to the board of shareholders supervision body,the board of directors shall try to loyal and diligent obligations,the supervision of the shareholders.In Japanese company law on the comprehensive supervision of board of directors of shareholder's obligations,China can learn from the Japanese director system,to better implement the fiduciary duty of diligence.