| The company capital system has undergone three earth-shaking changes in our country.Since the first “Company Law” was promulgated in 1994,China realized a one-time paid-in capital system.The revision in 2005 changed to the installment payment system,and it was changed to a complete subscription system until the revision in 2013.The subscription system greatly ignited the enthusiasm of investors and stimulated the vitality of the market,and a batch of new words have emerged,including not fully funded on schedule,which include failure to pay capital contribution in full by the deadline for subscription and failure to pay capital contribution in full before the deadline for subscription.As for the former’s responsibility for capital contribution after equity transfer,a clear answer has been given in the “Interpretation of Company Law(III)”.Correspondingly,the equity transfer that has not paid its capital contribution before the deadline is always been in a state of lack of legal norms.Although in practice some judges think that the institutional arrangement of capital contribution responsibility after the transfer of defective equity can be used for reference,the most essential difference between them is whether shareholders have term interests,which also determines different treatment results of them.In order to fill the legal gap and give more effective guidance to judicial practice,avoid repeating the dilemma of different judgments in the same case,it is particularly important to construct rational rules.Consequently,this thesis will focus on: after the transfer of unexpired equity,when the term of capital contribution is up,the company’s capital contribution is not fully in place,and the company’s debt is not enough to pay off the creditors,how to allocate the capital contribution responsibilities of both sides of equity transfer.This issue is not simply determine the transfer shareholder or the transferee shareholder to bear the responsibility.Instead,it is necessary to take the company,other shareholders,creditors and other relevant stakeholders into consider,and seek the best solution under the condition that the interests of all parties are balanced,so as to maximize the advantages of the subscribed capital system and create a good business environment.In order to be more concise,the “unexpired equity” in this thesis refers to the equity that has not expired and has not fulfilled or fully fulfilled its capital contribution obligations.This thesis discusses the unexpired equity transfer through four chapters,as follows:The first chapter mainly analyzes the judicial status quo of capital contribution responsibility after the unexpired equity transfer.The author selected 12 typical judicial cases,classified and summarized them from the aspects of judgment result,judgment reason and litigation type,etc.,and draws a conclusion that the judicial practice community generally hold three viewpoints on responsibility,and each viewpoint corresponds to different judgment basis.It can be seen that there are not a few contradictory judgments on this issue,and there are misinterpretations of individual laws and concepts.The second chapter further analyzes the judgment basis under the different judgment results in the first chapter,finds that the reason for deciding that the transfer shareholder bears responsibility is unreasonable.On the one hand,through the analysis of the legal and judicial interpretation,the conclusion of the lack of legislation in China is drawn.On the other hand,the author refutes the judgment reason that the capital contribution obligation is not transferable,which is unfair to the transferring shareholders.If the shareholders are required to bear the permanent obligation of capital contribution after exiting the company,the liquidity of equity will be weakened and the original intention of the subscription system reform will not be met.However,the complete relaxation of the conditions to allow the transfer also has a negative impact,that is,the market security cannot be guaranteed.The third chapter affirms that the obligation of capital contribution is difficult to separate from the equity,and should be transferred together,and provides a solution based on the theory of debt undertaking.Firstly,both sides can agree on the assignment independently which is only internally binding.Secondly,more emphasis is placed on “commitment” rather than “payment” under the subscription system.Shareholders form debts to the company by making a commitment to the company for capital contribution,the company recognizes the commitment to forms a creditor’s right to shareholders.The company exercises the right of consent according to legal procedures and agrees to transfer the equity and capital contribution obligations.When the subscription period expires,the transferee shareholders must assume the obligation of capital contribution generally,while the transferring shareholders are completely relieved from the obligation of capital contribution after the transfer of equity,unless the company approves the special agreement in the equity transfer agreement,the capital contribution obligation shall be allocated according to the agreement exceptionally.The fourth chapter discusses the subject and form of the supplementary liability to creditors.First of all,it is an essential part that it is affirmed that the protection of creditors’ interests is still the keynote of the development of current company law and an essential part.Secondly,comparing with the third chapter,it discusses in depth who will bear the supplementary compensation liability to creditors.Combined with the commercial appearance doctrine and the effectiveness of the equity transfer agreement,it is concluded that the transferee shareholders should bear the responsibility of supplementary capital contribution.Finally,combined with extraterritorial laws to demonstrate the rationality of transferring shareholders to bear the "responsibility related to capital contribution",and put forward the idea of responsibility construction. |
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