Research On The Issues Of Capital Contribution Responsibility After The Transfer Of Unpaid Capital Contributions

Since the implementation of the subscribed capital system,it not only enlivens the market investment,but also causes many problems such as sky high price company,one yuan company and so on.It is allowed by law that the capital contribution is not paid in before the expiration of the capital contribution period,and this kind of equity can be legally transferred.However,the liability of capital contribution after the equity transfer is in a dilemma in the application of law,which has also caused a lot of discussion in theory.On the one hand,the contribution of shareholders affects the enrichment of the company’s capital,on the other hand,it affects the realization of the interests of creditors.Therefore,the application of law on the responsibility of contribution plays an important role in ensuring the normal order of market economy,which urgently needs to be solved.Shareholder qualifications are the qualifications for natural persons or legal persons to be granted shareholder rights in law,and the acquisition of shareholder qualifications affects the determination of the subject of subsequent capital contributions.Under the subscription system,unpaid capital contributions still enjoy shareholder qualifications and there are three types of existence: Shareholders who have not paid all their capital contributions,some shareholders who have not paid their capital by the expiry date,and shareholders who have not paid their capital before the expiry date.The first two types belong to situations of capital contribution breach of contract,and the exercise of shareholder rights should be restricted.The latter is a situation permitted by law,and unless the law has special provisions,it should enjoy complete shareholder rights.At the same time,the unpaid capital equity is transferable and the effectiveness of the equity transfer contract should also be affirmed.This is not only reflected in the "Judicial Interpretation of the Company Law(3)",but is also the proper meaning of maintaining the stability of market transactions.The current situation of contribution responsibility after the transfer of non paid in shares in China is reflected in Article 18 of judicial interpretation(3)of company law.The failure to perform or fully perform the obligation of contribution is regulated by the breach of contribution,and the behavior of non paid in shares should not be included in the extended interpretation.Therefore,there is a gap in the scope of application,and it is difficult to regulate the non paid in shares After the transfer of the right,the way to bear the capital contribution liability is that the transferee still needs to bear joint and several liability after knowing the defective capital contribution of the transferor.In addition,through the empirical analysis of 43 cases,it is found that there are many different judgments in the same case in judicial practice,and the number of cases is increasing.The judgment results show three situations: the transferor and the transferor share the responsibility,distinguish the investment responsibility according to the formation time of the creditor’s rights,and the transferor does not bear the responsibility.There are some problems,such as the different standards for the determination of the failure to perform or fully perform the obligation of capital contribution,the judgment that the transferor does not bear the responsibility will damage the interests of creditors,and there are errors in the application of legal norms,which will affect the judicial credibility and the order of market transactions.In the overseas investigation of the liability for capital contribution after the transfer of shares with unpaid capital contribution,the United States affirms that the bona fide assignee does not bear the liability for capital contribution,but the assignor can not be exempted;in Japan,other shareholders need to bear joint and several liability for the acts of those shareholders who have subscribed but not paid in;in Germany,after the transfer of shares with unpaid capital contribution,the assignee should become the first subject of capital contribution liability,The transferor shall bear the supplementary liability,but the period of the supplementary liability is five years.All of the above countries prefer that the transferor should not be exempted from the liability of capital contribution through equity transfer.The following suggestions are made on the issue of capital contribution responsibility after the transfer of unpaid capital contributions: On the one hand,it is necessary to clarify the criteria for determining "non-fulfillment or failure to fully perform capital contribution obligations",and determine the scope of application of Article 18 of the "Judicial Interpretation of the Company Law(3)";On the other hand,it is possible to construct a system where the assignee is the subject of capital contribution and the assignor assumes supplementary responsibilities.The premise of the assignor’s responsibility is not only to meet the expiration of the capital contribution period,but also that the transferee shareholder cannot repay the capital contribution after the execution of the court.Debt;At the same time,the capital reduction procedure,as an important means to protect the company’s capital enrichment and the interests of creditors,can be analogously applied to the procedure for the transfer of unpaid capital contributions,thereby strengthening the protection of the rights and interests of creditors.