Research On Responsibility Of Shareholders With Unpaid Capital Contribution After The Equity Transfer During The Subscription Period

The establishment of the registered capital subscription registration system in our country gives the company the right to decide the period and amount of the subscription contribution,and relaxes the legal restriction on the shareholder’s capital contribution.During the subscription period,the transfer of equity by shareholders in the state of non-capital contribution is common in the trading market.After equity transfer,the allocation of capital contribution responsibility affects the enrichment of company capital.There is no clear law on the responsibility of shareholders with unpaid capital contribution after the equity transfer during the subscription period.The lag of legislation gives the judicial practice space to explain,which also leads to different judicial results,and even different sentences in the same case.Shareholders’ contribution obligation is produced in contract and law in the subscribed capital system.Because of shareholders’ benefits of capital contribution period,shareholders have right of inadequate paid-in investment during the capital contribution period and consistent with the law and company policy.Uninvested equity can be transferred externally.The issue of shareholder’s responsibility for the company and the creditor after equity transfer is focused on whether the assignor bears the subsequent responsibility.After analyzing the judicial cases,we found that the views include support and disagreement about that the assignor bears the subsequent responsibility have disputes over the value choice of the protection of shareholders’interests and creditors’ interests and application of "Company Law of the People’s Republic of China"(Ⅲ)article 18 and transfer of contribution obligation.Establish a system for avoiding the risk of equity transfer.After the equity transfer,the subject and the object of responsibility shall be clarified according to different situations to balance the interests of shareholders,companies and creditors.Establish a pre-risk avoidance system for equity transfer.On the one hand,improve the company’s information disclosure system,so that they can assess risks in advance and make transaction choices prudently.On the other hand,establish a system for notifying creditors of equity transfer.When the shareholders’ meeting has made a resolution to approve the equity transfer,the company should notify the company’s existing creditors.Creditors may apply for inspection of the supporting documents reflecting the transferee’s capital contribution ability and asset credit.Those who believe that it will affect the realization of their interest may request the company to provide guarantees.Shareholders with unpaid capital contribution are responsible for the company and other shareholders who have made full capital when the period has expired.When the period has expired,the company has completed the registration of the change in the register of shareholders,and the subject of responsibility is the assignee who has become the company’s new shareholder.The register of shareholders has not been changed,and the transferring shareholders who have not withdrawn from the company shall bear the responsibility.When the company is unable to pay off the due debts and the shareholders’ capital contribution has expired.In principle,the transferee shall assume supplementary liability to the creditor for the part of the unpaid capital contribution.Before the expiration of the period of capital contribution,the transferee shall not be liable for supplementary liability if it fails to contribute capital,except two exceptions in "The Minutes of National Court Civil and Commercial Trial Work Meeting".The bona shareholder chooses the transferee with the ability of investing to transfer the equity to exit the company and to avoid subsequent liability.But the shareholder’s freedom of transferring equity cannot infringe on the rights and interests of creditors.If transferor and transferee have malicious collusion and evade contribution obligation,it can be classified as shareholder defaults on the contribution obligation of categories.The transferor and transferee shall be jointly and severally liable for creditor.