Analysis Of The Contribution Liability After The Equity Transfer Of Shareholders With Unpaid Capital Contribution Under The Condition Of Bankruptcy Liquidation

The contribution liability is vague for the equity transfer of shareholders with unpaid capital in judicial practice after the new "company law" established subscribed capital system.The emergence of this phenomenon is not conducive to accord consistent judgments to similar cases in court and,to add insult injury,it againsts the protection of creditors as the bankruptcy of the company,and will cause waste of judicial resources and social resources.Through four parts,this paper tries to find out the reasons for ambiguity for the equity transfer of shareholders with unpaid capital in judicial practice,and explores the way out for the allocation of investment liability between the former shareholder and the current shareholder in the case of the transfer of subscribed equity obligation in the bankruptcy liquidation context.The first part is the analysis of judicial practice,find out as many judgment documents as possible under the existing conditions,find out the 66 judgments and orders which are most relevant to the issue studied in this paper and have the most similar cases,summarize the different judgment results of judges in similar cases through statistics:The first result of judgment is that the former shareholders and the incumbent shareholders bear joint and several liability for capital contribution;The second result of judgment is that the incumbent shareholders bear the capital contribution responsibility,while the former shareholders are exempt from it.In the first result of judgment,the conditions for the judge to assume joint and several liability to the shareholders are also different.The second part is mainly to analyze the reasons for the disunity of the judgment scale in the judicial practice of the contribution liability after the transfer of subscribed equity.By comparing the relevant laws and regulations outside China,it is concluded that the incomplete reform of the company law in China leads to the blank regulation of capital contribution obligation,which leads to the confusion of the referencing of law articles and the confusion of the understanding of law in the judgment.And another reason is that the judges have different understandings of the law--especially the identification of whether the failure to fulfill the pre-term contribution obligation belongs to the defective contribution,which leads to the use of different laws in similar cases.The third part is to explore the theory to make up for the legal provisions of the blank and rough.It lists the theory of subscribed capital contribution and the nature of subscribed capital contribution obligation,the theory of "creditor’s interest priority" and the theory of "shareholder’s period benefits priority",and the theory of defective equity transfer.By analyzing the subscribed investment that is in the nature of the debt,has the negotiability.Subscribed capital contribution obligations as "statutory" and the "contractual".In the context of bankruptcy liquidation,protect the interests of creditors is more important than to protect the shareholder’s period benefits,so the former shareholder’s subscribed capital contribution obligation dose not exempt for the transferring.The former shareholders and the current shareholders shall bear the obligation,however,the rules of defective contribution are not useful to this kind of investment obligation.The fourth part mainly explores the allocation of subscribed capital contribution liability in the context of bankruptcy liquidation.In combination with the third part of the theoretical analysis,subscribed capital contribution responsibility allocation can be divided into general and special circumstances: in general,the current shareholder has the mainly obligation of capital contribution,former shareholder only has the supplement responsibility,giving their responsibility scope is limited to pay full unpaid subscribed capital contribution.Under special circumstances(malicious collusion),the transfer shall be void,former shareholder and the current shareholder shall be held jointly liable.And their responsibility scope is not limited to pay unpaid subscribed capital contribution,also includes the contribution for interest on the money,and for malicious collusion behavior cause damages to the company.