| In 2013,Company Law of the People's Republic of China was revised.and in the capital system,the transformation from "staged subscription system" to "completely subscribed system" was realized.Free expansion of shareholders' investment term,which is conducive to allowing shareholders to arrange investment according to the actual situation of the company,can indeed stimulate the enthusiasm of investors.But at the same time,the risks faced by creditors have increased.Shareholders generally agreed on a longer period of capital contribution,which delayed the capital contribution.The formation of the company's inability to pay off the debts due,and shareholders' funding deadline has not arrived,so the creditor's claims can not be achieved.As a result,a large number of creditors have requested the shareholders who have not completed the capitalization period to assume responsibility,and the contradiction of judicial decisions is outstanding,which makes creditors feel at a loss.The theoretical community also has different views on this.Therefore,in order to seek the unification of judicial decisions,balance the freedom of shareholders' contribution and the protection of creditors' interests,accelerating the shareholders' contribution to maturity has become an urgent problem to be solved.After sorting out the theory and the judicial decisions,I found there were three reasons to deny accelerating the shareholders' contribution to maturity,namely,the lack of legal basis,creditors' self-assumption of risks,and creditors' relief through other means.In my opinion,the lack of legal basis is only the rhetoric of avoiding problems.The last two reasons are really to be explored.The reform of the capital system will undoubtedly push creditors to a higher risk situation,which means that the creditor risk prevention and control mechanism must be strengthened.However,our country has only established a national enterprise credit information publicity system,and the company's information content is incomplete and unreal.Therefore,it is impossible for creditors to take risks themselves.After analyzing the other creditors' relief channels one by one,I found that there were defects,such as lack of pertinence and operability,too narrow scope of application,etc.Therefore,it is necessary to establish the system of accelerating the maturity of shareholder contribution.For the establishment and effective implementation of the system,the system must be constructed in three steps.The first step is to prove the legitimacy of the system.First of all,the rules of contract law and company law can prove the legitimacy of limiting shareholders' term interest,which include the prohibition of abusing the freedom of contract,the implied clause theory,analogy of situational change and the principle of capital enrichment and equal rights and obligations of shareholders and the legality of shareholders' contribution obligations.Secondly,creditors can also obtain the legitimate basis for requesting supplementary compensation from shareholders directly through the legal debt theory.The second step is the construction of the system.Since the special legislation is unrealistic under the current legal framework,it is possible to explain Article 13,paragraph 2 of Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China(III).The third step is to solve some problems in the application of the system.Substantial issues mainly include the subject of the liability,the recognition of the company's inability to repay debts due,the type of liability undertaken by shareholders,and the applicable legal effects between shareholders,creditors andcompany.Procedural problems mainly include determination of litigants distribution of burden of proof,litigants,regional jurisdiction,and connection with execution procedure.In the meanwhile,other creditor safeguard procedures are needed to form a complete system so as to better play the role of subscription capital system. |
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