| As one of the important systems in company law,capital reduction may play an active role in adjusting the operating structure and avoiding capital excess.It may also adversely affect the interests of creditors.Considering the above factors,Article 177 of China Company Law(hereinafter referred to as the Company Law)stipulates the obligation to notify creditors.However,it does not provide for civil liability for breach of such obligations,thus leading to a large number of disputes.Based on this,the issues studied in this thesis is how to protect the interests of creditors and seek the relief when the company's capital reduction violates its notification obligations to creditors.Apart from the raise of the problems,this thesis is mainly divided into the following sections:In the first part,the author reviews the cases in which the creditor sued the company for breach of the notification obligation and required shareholders to bear the corresponding liabilities,and finds that there is a lot of discrepancy on the determination of the validity of capital reduction in violation of the notification obligation,the shareholder's obligation and liability.The second part is based on the analysis of the judgment in the first part,analyzing the reasons for the confusions in China's judicial rulings.The first reason is that there is a gap in our legislation.The legislation has neither stipulated the legal requirements of the capital reduction,nor the civil liabilities in violation of the notification obligation in case of the capital reduction.Secondly,under the circumstance where the legislation is not integrated,the community can also not reach the consensus on the understanding of the validity of capital reduction,the liability of shareholders and the basis for such liability,which can not give effective guidance tothe judicial practice.The third part is the reflection on the existing judicial adjudication.First,the author makes the critical thinking on the existing judicial adjudication of the validity of the capital reduction.Most of the existing judgments avoid discussing about the validity of the capital reduction or only give concluding opinions on it.However,it is believed that the determination of validity shall be the premise and basis of the creditor relief.Secondly,the author criticizes the ruling basis of several types of shareholder liabilities in the existing rulings,pointing out that whether it is analogy to apply withdrawal of capital,failure to perform the obligation of capital contribution,tort law,or the guarantee law requiring shareholders to bear liability has significant limitations.Finally,it is pointed out that the reasoning in the judgment adjudicating that the shareholders shall not be liable is hardly reassuring.The fourth part is to discuss about the validity of capital reduction in violation of the notification obligation.First of all,the basis on the determination of the capital reduction will be clarified: the validity of the capital reduction resolution and the capital reduction behavior should be identified separately.Secondly,from the perspectives of nature,purpose of notification procedure setting,transaction cost and efficiency,etc,it is concluded that it is more reasonable to determine the effect of capital reduction in violation of the notification obligation as not having a countervailing effect on specific creditors.The fifth part and the conclusion attempts to construct the creditor's remedy path on the basis of the above analysis: the premise of the creditor's exercise of the right of relief is that the company violates the notification obligation and the capital reduction causes the company to fail to pay off the debt.Under such circumstance,it is necessary for the shareholder who conducts the capital reduction to be liable.Legislation should make clear that the creditors have the right to request shareholders to bear additional compensation liabilities within the scope of capital reduction when the shareholders violate their notification obligations. |
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