The Research On The Protection Of Creditors' Interests Under The System Ofsubscribed Capital System

In 2005,the Company Law allowed shareholders to pay capital contribution in installments.In 2013,the amendments to the Company Law further removed restrictions on the statutory capital contribution period,the proportion of initial capital contribution,and the minimum registered capital limit,and established a complete subscribed capital system.Though the protection of shareholders` interests were reinforced,the amendments also weakened the protection of the interests of creditors.Thus,it is urgent to explore a feasible solution for enhancing the protection on creditors' side.To obligate the unfunded shareholders to bear a supplementary liability forcompensation to the company's creditors can become a comparatively better protection for their interests.But to do so the paragraph 2 of Article 13 in the Judicial Interpretation of the Company Law III must be open for re-interpretation within the existing legal framework.The statutory debt theory,the sequent nature and limited liability of supplementary liability have decided that though the unfunded shareholders are liable for compensating the creditors,they shall not be extra burdened.Based on the requirements of rights and obligations being equivalent,in the event that a company being unable to pay off its due debts,its creditors have the right to request the shareholders whose contribution obligation is not yet due to undertake the supplementary liability for compensation.At the same time,under such circumstances these shareholders` right to beneficiumordinis must not be deprived of.The shareholders are obligatory to assume liability only after litigation or arbitration has been conducted and the company is still unable to pay its due debts after its assets and properties being enforced in order to avoid aggravating their responsibility.In addition,the creditor's voluntary choice of taking risks should be seen as an exception to ensure the balance between the freedom of shareholders reaching investment agreements and the protection of the creditor's interests.Such exception will also contribute to the overall legitimacy of the subscribedcapital system's reform.