Study On The Allocation Of Capital Contribution After The Transfer Of Upaid-in Shares Within The Subscription Period

Who should assume the responsibility of capital contribution after the transfer of equity that has not come to the actual term of payment?Is it the assignor,the transferee or the joint and several liability?Article 18 of the judicial interpretation of the company law(iii) provides for the distribution of capital contribution liability upon the expiration of the subscription period,but does not involve the equity transfer before the subscription period,so that there are different judgment results on such cases in judicial practice.In addition to protecting shareholders’ rights and interests,the capital maintenance of the company and protecting creditors’ interests should also be taken into account in the allocation of the capital contribution liability after the transfer of the undersubscribed equity within the subscription period.It is too hasty to assume the responsibility of capital contribution solely by the assignor or transferee.It is against the original intention of the establishment of the subscription system and the legislative spirit of the free flow of equity.However,the definition of liability based on the knowledge of the assignee is actually the mechanical application of article 18 of the judicial interpretation of the company law(iii),which is not reasonable and operable.The allocation of the liability for capital contribution after the equity transfer is not made in full amount within the subscription period should be determined according to whether the transferor transfers the equity in good faith or eviscerates the debt in bad faith.The time of assignment,the consideration of assignment,the subjective state of the transferee and the credit status of the transferee are also the core elements to identify the malicious assignment.In addition,it is necessary to further refine the judgment standard of the equity transfer behavior of malicious colluding to harm the interests of a third party,and to clarify the time node of the transfer of the obligation and responsibility of supplementary contribution to the transferee,so as to make the responsibility distribution standard more operable.