On The Acceleration Of Shareholders’ Capital Duty Under The Subscription System

In China,the Company Law adopted subscribed capital system and gave shareholders the right to decide the contribution due time in 2013.In the past,shareholders needed to pay full share capital within two to five years for the company’s establishment,but now they can slowly pay the capital within the self-agreed investment period.Although it has the effect of stimulating investment enthusiasm,it will also bring conflicts between the company’s capital operation needs and the shareholders’ term benefits.Once the company’s funds are unable to settle its debts,creditors will focus on the shareholders who have not paid their contributions.Conflicts of interest between shareholders and creditors have arisen,which has spawned a new type of cases: during the company’s existence,can creditors require the shareholders whose investment term has not expired to accelerate their capital contributions and assume additional compensation liabilities for the company’s debts?The theoretical circle has been arguing about this,and contradictory judges in the practice circle have emerged endlessly.To balance the interests of the three parties,it is imperative to clarify the acceleration of the performance of the shareholders’ capital contribution obligations.Regarding the issue of whether shareholders’ funding obligations can be accelerated,there are three types of views: “Negative Theory” “Compromise Theory”“Affirmative Theory”.The “Negative Theory” claiming the self-determination for shareholders’ capital contribution cannot be deprived is contrary to the purpose of the Company Law.The “Compromise Theory”,which strictly limits the conditions for accelerating maturity has operational defects.The “Affirmative Theory”,which proposes that the maturity of shareholders’ responsibility for capital contribution should be accelerated when the company can’t pay debt,should be respected.There are three reasons for this: First,the payment term is the cut-off time of the shareholder’s capital contribution,not the starting point.Its existence has already provided shareholders with the common benefit rights that exceeds the considerationof the capital contribution.Shareholders can avoid trading risks in the market because of payment term,due to the need of protecting creditors’ interests,term benefits are not the reason for preventing shareholders from making capital contributions in advance.Second,in terms of preventing the risk of insufficient funds of the company,among the three parties of the company,shareholders and creditors,shareholders are the party with the lowest cost of prevention,so they should assume the obligation to control risks.Third,due to the existence of the law of currency depreciation,the long payment term often impairs the true value of shareholders’ capital contribution.When the company is unable to settle its debts,the value of the assets of the company can be maintained if the shareholders fulfill their investment obligations ahead of time,and this is a requirement of the capital enrichment principle.Therefore,the accelerated expiration of shareholders’ capital contribution obligation has a better effect than accelerating bankruptcy.In terms of how to realize the accelerated expiration of the shareholders’ capital contribution obligations,there are many different views including Articles 73 and 54 of the Contract Law,Article 3 of the Company Law,and Article 13(2)of the Judicial Interpretation of the Company Law.From the perspective of the constitutive nature of the corporate law and the limitations of contract law,the previous choices have their own shortcomings to solve this problem and Article 13(2)of the Judicial Interpretation of the Company Law(3)is the best legal basis for this issue.As to the criteria for shareholders to accelerate the maturity of funding obligations,there are “the company cannot pay off due debts” and “funding obligations are not fulfilled or not fully fulfilled” two aspects.The courts should adopt“Circulating Fund” as the criterion for “disability of paying off debts”.“non-performance of capital contribution obligation” means shareholders haven’t paid in monetary contribution or haven’t delivered non-monetary contribution.“partial performance of capital contribution obligation” means shareholders have paid in part of monetary contribution but not finished yet as well as shareholders haven’t paid in fully-valued non-monetary contribution or haven’t fulfilled registration modification.When applying Article 13(2)of the Judicial Interpretation of the Company Law(3),it should be noticed that the range of responsible shareholders includes transferor as well as anonymous shareholders,and the amount of their liability should not cover interest.Considering the different influence of the company’s operating crisis due tothe not-funded and not-fully funded shareholders,the former should complete the capital contribution at one time,and the latter can be accelerated according to the proportion of unpaid.At the same time,supporting measures should be improved,including improving the corporate information publicity system and doing a good job of linking with Article 32 of the Bankruptcy Law.