Study On The Obligation Of Notice To Creditors In The Process Of Reducing Capital

The obligation of notice to creditors in capital reduction can be expressed as: when the company reduces its registered capital,the company should make its creditors know the basic information of capital reduction by means of notice and announcement.Any kind of capital reduction will affect the security of creditor’s rights.In order to protect the security of creditor’s rights in the process of capital reduction,China chooses the system of requiring the company to notify creditors and meet their claims within a certain period of time.The perfect obligation of notice can reduce the cost of the creditor to obtain the information of capital reduction,and make the creditor claim according to the actual situation of the debtor.Traders have a trust interest in the public registered capital,and the establishment of the obligation of notice of capital reduction is the requirement of maintaining the credibility of the registered capital.When a company gives notice,it not only reminds the creditor to claim the creditor’s rights,but also calculates the creditor’s exercise period from then on.If the creditor fails to claim within the specified period after receiving the notice,the company can obtain the registration of capital reduction.Therefore,the value of establishing the obligation of notice in China is positioned between the protection of creditor’s rights and the convenience of capital reduction.The company is the subject of obligation stipulated by law.It is wrong to regard shareholders as the subject of notification obligation in judicial practice.However,Dong Jiangao has the duty of care for the company’s notice of capital reduction.The object of the obligation of notice in capital reduction also includes the creditor whose creditor’s right is not due and the claimant of disputed creditor’s right.As for the content of the notice,the current law can not deduce that the company should provide balance sheet and property list for creditors to consult.However,the information contained in the capital reduction resolution shall become the content of the notice.The obligation of notice of capital reduction requires the company to notify the creditors who can be notified individually,and then to notify the creditors and other stakeholders who cannot be notified individually.The company’s compliance with the obligation of notice of capital reduction is a prerequisite for the application of the creditor’s exercise period in the "terms of capital reduction procedure".The legislative purpose of article 177 of the company law is to require the company to be liable to the existing creditors with the property before capital reduction.If the company fails to perform the obligation of notice and deprives the creditor of the right to know,the capital reduction will not take effect to the creditor’s rights to the company formed before the registration of capital reduction change.Because when the capital reduction is invalid,the property returned by the shareholders will be responsible to all creditors,which is not conducive to the protection of the direct victims of illegal acts.Therefore,it is not appropriate to cancel the registration of capital reduction to make the capital reduction invalid.It can be deduced from the relative ineffectiveness that the shareholders of capital reduction shall be liable for the creditor’s rights formed before the capital reduction with the property obtained from the capital reduction,but they do not need to return the property obtained from the capital reduction to the company.However,due to the lack of clear legal provisions,especially the lack of special liability provisions,in judicial practice,it is often avoided to confirm the effectiveness of capital reduction,and shareholders are required to bear the liability by analogy to relieve the creditors who have not been informed and can not be paid off.For the improvement of the system of notification obligation in the capital reduction of Companies in China,the company law should implement the notification duty of company managers in the capital reduction process,clarify and increase the legal content of the notice,clarify the connotation of creditors,and require the company to notify the person with the basis of creditor’s rights,improve the way of announcement by using the Internet platform,and clarify the responsibility of the company not being informed when it fails to perform the notification obligation The creditor’s right which forms the basis of the creditor’s right before the registration of capital reduction is relatively ineffective,and the relief rules for the interests of the creditor who is not notified are added from the relatively ineffective point of view.