Study Of The Acceleration Of Shareholders' Capital Contribution Responsibility Under The Subscription System

In order to lower the threshold for the establishment of the company and improve the utilization rate of capital,the 2013 Company Law reformed the company's capital system,which enabled the shareholder's rights to expand.The most important change in the reform was the realization of the shareholder contribution system and the cancellation of the capital contribution period and the minimum capital limit.As a result,there have also been some companies that have a large amount of subscriptions and a long period of capital contribution.At this time,the protection of creditors by the law is slightly insufficient.Therefore,when the company has a situation in which it is unable to pay off the debts due,does the creditor have the right to require the shareholders to make capital contributions in advance,can the company urge the shareholders to make capital contributions in advance? If so,what is the basis of the claims of creditors and companies? There are great controversies in the practice and theoretical circles on these issues.Therefore,it is necessary to discuss the issue of accelerating the maturity of shareholders' contributions,which will help maintain the balance of interests between the shareholders and corporate creditors and facilitate the unification of judicial trials.This paper firstly sorts out the different judgments of the court in the current judicial practice on whether the creditors can request the shareholders who have not yet contributed the capital to fulfill the capital contribution obligations in advance.,and at the same time sort out the different views of the theoretical circles on accelerating the expiration,which can be divided into affirmative,negative and eclectic opinions.It is affirmed that the accelerated expiration system has the advantages of low cost and high efficiency,which is conducive to protecting the interests of creditors and also in line with the purpose of the revision of the company law.In addition,the internality of the articles of association has led to the company's charter not binding to external third parties,and cannot restrict external claims by internal agreements.Therefore,when the company is unable to pay off the debts due,the shareholders should pay off the compensation within the scope of their unpaid contributions.However,the negative opinion believes that the current law has no explicit provisions for accelerating the expiration,so it cannot deprive the period benefits of the shareholders of capital contribution,and when it is unable to obtain the basis for accelerating the validity of expiration through expansion,there is also a legal personality denial system and other paths such as the contract law,the bankruptcy law,to solve the problem of expediting expiration.The eclectic opinion is that whether the shareholder's capital contribution obligation can be expedited or not depends on the specific circumstances,that is,whether the company is involved in business difficulties or distinguishes creditors according to different standards.Only the company is caught in business difficulties or the creditor voluntarily deals with the company to generate a creditor-debtor relationship.Through the supplement and modification of the affirmation,this paper analyzes the defects of the negative and the eclectic opinions,and further analyzes the legitimacy of the shareholders' contribution obligation under the subscription system to accelerate the expiration.Secondly,this paper analyzes the choice of the current judicial paths and concludes that it is difficult to provide a reasonable basis for accelerating the expiration,whether it is company law or contract law or bankruptcy law system.As far as the company law norms are concerned,whether it is the expansion of the applicable company law or the relevant provisions of judicial interpretation,it will be contrary to the current legal system,resulting in the system is not self-consistent,which focuses on the feasibility of the corporate legal personality denial system.The author finds that the court is very cautious about the application of corporate personality denial.Secondly,it is very difficult to identify the lack of capital.At the same time,the legal personality denial has a significant difference between the applicable standards and legal consequences and the accelerated participation of shareholders.Therefore,it the legal personality denial system cannot solve the issue of accelerating the maturity of shareholders.The bankruptcy law path also has its applicable limitations.Whether it is the direct application of the bankruptcy law system or the bankruptcy enforcement system to supervise the shareholders who have not made the capital contribution in advance,it will be contrary to the legislative spirit of the bankruptcy law,resulting in individual liquidation.The phenomenon will also be in conflict with other laws,so it will not work in theory and practice.However,the invalidation of the contract through the contract law is because the company law on the funding period is an organizational norm,and the contract law is biased towards the transactional norms,there is a problem of the two.Moreover,it is difficult to determine the invalid contract,because how to judge the long-term investment period agreed by the shareholders is not measured by a unified standard in the judicial judgment.Therefore,solving the company law problem through civil law norms is not the best path choice.Therefore,the above-mentioned claims of right basis cannot solve the current problems.Therefore,in the end,this paper focuses on improving the problem of accelerating the construction of the maturity system,including applicable conditions and corresponding supporting measures.The question of how to determine the company's inability to pay off the debts due is based on whether it is still not payable after enforcement,or whether the creditor's claim that it has submitted the debt to the company is rejected;and the allocation of the burden of proof,It should be in accordance with "who advocates,who gives evidence" or the arrangement of the burden of proof is reversed;whether the creditor requests the shareholders to be funded is subject to certain restrictions,or whether the creditor can arbitrarily propose to one or some of them.After analyzing the above judgment criteria,the author concludes that the debt cannot be fulfilled after the enforcement as the standard for determining the debts that cannot be settled,and the burden of proof is reversed to balance the rights of creditors and shareholders.The creditors can freely submit the performance requirements to the shareholders.At the same time,expediting the expiration does not involve the calculation of interest.In addition,since the European and American countries have a corresponding system to protect the interests of creditors after the practice of the payment system,China can learn from the corresponding supporting measures.Therefore,starting from the internal governance of the company,because the company's shareholders will modify the company's articles of association as the most effective way,both from the perspective of respecting the company's autonomy and saving the judicial cost,it can also be a good basis.It can also arrange the funding period according to the company's operation.However,there are still many shortcomings in the internal governance of the company at present.Although the interests of the company and the shareholders are generally the same,it is inevitable that some companies will become tools for the major shareholders to take personal interests,so the company is autonomous.So it is less feasible in China.The European and American company's call collection system authorizes the company's board of directors to require shareholders to fulfill their capital contribution obligations in advance according to the improvement of business conditions.The author then analyzes the legal basis of the collection system and draws affirmative conclusions,according to China's actual situation and company law.The relevant principles have been conceived in terms of the subject and procedures of the collection system and the safeguards.