A Research On Shareholders’ Right To Call For Capital Contribution

After the reform of the "Company Law",the company’s capital system has been completely changed.Abolish the company’s minimum capital system,establish an authorized capital system,and give shareholders the right to independently agree on the period of capital contribution.At the same time,it will bring about the contradiction between the company’s capital enrichment and the shareholders’ interest in the term of contribution.Issues related to shareholders’ equity contributions are emerging one after another,especially the capital call system.Who is the subject of the call? How about the procedure? Does the shareholder who has not paid the capital contribution have the right to make the capital contribution call? These issues are controversial in both theoretical and judicial practice.In this context,this paper studies the system of shareholders’ rights to call for contributions.After reviewing the status quo of the research on shareholders’ rights to call for contributions,this paper focuses on the lack of legislation and the confusion of judicial practice through case related retrieval and the sorting of the reasons for adjudication.It also analyzes the differences in judicial practice,that is,whether the shareholders who have not fully paid their capital have the right to call on each other.In judicial practice,the ratio of affirmative and negative judgments on this issue is 2:3,and the two kinds of judgment positions form a contending situation.The largest proportion of judgment basis is based on the first paragraph of Article 13 of judicial interpretation of company law(3),which limits or expands the scope of "other shareholders".However,the judicial interpretation does not have a direct corresponding article in the legislation of the company law.The unclear source of the right of this judicial interpretation has caused the dilemma of judicial practice.To clarify how to exercise rights,we must first clarify the basis of rights,that is the legal basis of the legal and agreed source of the right to call for capital contribution among shareholders.Based on the particularity of the rights and obligations between the promoters and the promoter agreement,such as the joint and several liability of capital contribution between the promoters and the insufficient liability in case of insufficient capital contribution,the promoters certainly have the right to call on each other for capital contribution no matter from the contractual or legal point of view;According to the company policy,other shareholders who have paid in full have the right to sue the court to demand the defaulting shareholders to pay their capital contributions.The shareholders who have not paid their capital contributions will not be deprived of their rights to call for capital contributions after the time limit for capital contributions has come,and they will still be given the right to request capital calls after they have fulfilled the procedures for making up their capital contributions.At the same time,the shareholders’ behavior of not making capital contribution according to the agreement will inevitably lead to infringement of the interests of the company and shareholders.The sufficiency of capital is the primary condition for the survival and operation of the company.Any transaction without capital is "empty talk".For other shareholders who have paid their capital in full,the benefits generated by the transaction based on the company’s capital are expected to be available Therefore,based on the tort liability,shareholders with full capital contribution can also file a lawsuit of capital contribution infringement.In the exercise of shareholder funding request right of calls,shareholders can bring direct litigation based on the theory of breach of contract and indirect litigation can be filed based on infringement theory.In the applicable "Company Law judicial interpretation of the three" first paragraph of Article 13 When,the classification of the subject of this claim and the circumstances of the lawsuit should be clearly.At the same time,we should improve the corresponding supporting measures and set up the internal call procedure.The purpose is to elect the representative of shareholders in multi person litigation,determine the content of litigation,and urge the defaulting shareholders to provide guarantee,so as to save the judicial cost and maintain the internal relationship of shareholders.