Research On The Capital Contribution Responsibility After The Share Transfer Under The Subscription System

The issue of the capital contribution responsibility after the share transfer under the subscription system involves the definition of the share transfer between maturity period and the subscription period have not expired,the clarification of the transferability of unexpired capital contribution obligation,the determination of the follow-up subject of liability and the creditors protection as well as many other issues.There is a number of controversy over the above issues in the academic and practical level.Therefore this subject urgently needs to be clearly regulated by law.However,Article 3 of the Company Law and Article 18 of the Judicial Interpretation of the Company Law(3)are not perfect the issue,as a result,they are inability to deal with the theoretical and practical problems.Therefore,it needs to be improved.The difference in the nature of the equity transfer between maturity period and the subscription period have not expired determines the fundamental difference in the responsibility of contribution.After the capital contribution period expires,it is illegal if the shareholder still fails to fully fulfill the capital contribution obligation then transfer the share.And the capital contribution period have not expired then transfer the share,which belongs to the equity transfer under the legal status.In light of the provisions of Article 18 of the Judicial Interpretation of the Company Law(III),if the share transferred under the failure to fulfill the contribution obligation after the capital contribution period has expired,regardless of the good or evil of the subjective state of the assignor,the assignor shall bear the follow-up responsibility of contribution.Because there is no legal provision,so that theoretically formed the five theories,such as the assignor’s responsibility,the assignee’s responsibility,and the combination,but there are not form a unified conclusion.The fundamental reason is that they have not discussing the premise of issue about transferability of unexpired contribution obligation.The unexpired contribution obligation of under the subscription system shall be transferable.In 2013,after the revision of the company law,subscribed capital system was implemented.However,due to the long-term effect of the paid-in capital system,the concept of contribution was emphasized on “payment” and neglected “subscription”.It is easily to find that the shareholder’s capital contribution obligation is essentially the debt to the company if pay attention to the subscription,as a special debt it can also be transferred.The equity transfer contract is a typical commercial contract.The commercial subject has a high ability to negotiate on contract.In the absence of violation of the mandatory provisions,it is necessary to fully respect the autonomy of will of the parties to facilitate the transaction.In addition,The share transfer shall follow the principle of general transfer,it means that the obligation attached to the equity transfer shall also be transferred along with the share transfer,including the transfer of the capital contribution obligation.What is more the protection of creditors should not be the reason for prohibiting the transfer of capital contribution obligations.For creditor protection,it has already shifted from capital credit to asset credit,and the capital contribution obligation emphasizes the company’s capital credit.On the basis of demonstrating that the capital contribution obligation of the unexpired period is transferable,in principle,the capital contribution obligation after the equity transfer is borne by the assignee and the assignee breach the contribution obligation is also solely responsible for the capital contribution.However,based on fairness and justice as well as maintaining the order of equity transfer,the subjective status of the transferor and the transferee of the equity transfer should be identified to determine the ultimately subject of contribution liability.In detail,when the transferor truthfully informs the transferee about information of the share and completes the share transfer procedure,the transferee assumes the subsequent capital contribution responsibility;the transferor does not inform the transferee of the true equity,and the transferee are defrauded into accepting the share,the transferor shall bear the subsequent capital contribution responsibility;if the transferor and the transferee malicious collaboration,and transfer the equity to maliciously evade the debt,the two jointly bear the subsequent capital contribution responsibility.If the transferee violates the capital contribution obligation after he transferred the equity,he not only needs to assure the consequences of continuing to perform the capital contribution responsibility according to Article 3 of the corporate Law,but also bears the liability for breach of contract in light of Article 28 of the corporate Law.After the transferor share transfers with malicious fraudulent,although he is not a shareholder of the company,he should still assume the subsequent capital contribution responsibility according to the sponsor’s capital fulfillment responsibility.