The Research On The Acceleration Of Shareholders’ Capital Contribution Obligation Under Subscribed Capital System

In 2013,China’s capital system ushered in a major revision,the actual payment system into a subscription system,shareholders can pay their contributions in instalments,the period of capital contribution has become an agreement,the establishment of the company is no longer limited by the amount of registered capital.With this reform,the number of Chinese companies has increased rapidly,greatly stimulating market vitality.But with the development of subscription system,the problem gradually emerged.In practice,the company tries to drill the loophole of subscription system,set up "shell company" or agree on the time limit of capital contribution for a hundred years,which makes the risk of creditors in the transaction with the company greatly increase,and deviates from the original intention of subscription system reform.Because the company does not have enough property to pay off the creditors,in practice,the creditor requests the outstanding shareholders to pay off the maturing debts,which is the origin of the topic of accelerated maturity of shareholders’ capital contribution.It means that under the condition of non-bankruptcy,the company does not have enough property and can not pay off its debts due.At this time,the creditor can request the shareholders to pay their capital contribution in advance to realize the creditor’s rights.Because the reform of the capital system makes the interests of shareholders and creditors in an unbalanced state,if we do not take measures to protect the interests of creditors,in the long run,it will not only affect the vitality of the market.More likely to lead to the failure of capital system reform.Based on this,this paper analyzes the accelerated expiration of shareholders’ capital contribution,points out the existing problems in current regulations and practice,and proves the establishment of the system through theoretical and practical needs.Finally,the dilemma of its application is analyzed and the corresponding opinions are put forward.This paper first combs the current situation of legal regulation and judicial decision of shareholders’ obligation to accelerate the expiration of capital contribution.The law does not stipulate that shareholders are required to contribute in advance under the condition of non-bankruptcy.Therefore,in order to unify the judicial decisions,the Supreme Court issued the Summary of the National Court’s Civil and Commercial trial work Conference(hereinafter referred to as the Nine people’s minutes),which issued a new instruction," taking no acceleration as the principle and taking acceleration as the exception ",that is,only after the debt company has been enforced,no property can be found to pay off the debt,and if the company has not applied for bankruptcy or if the creditor’s rights to the company are established,the company may extend the term of shareholder’s contribution,the court may order the shareholder to pay the contribution in advance to pay off the debt.Through the comparison of judicial decisions,it is found that the "Nine people’s minutes" has indeed achieved the effect of unified judgment,but in practice,it has also appeared the problems of increasing the burden of proof,increasing the burden of creditor’s action and the limitation of application.Secondly,since the implementation of the subscription system in China,the system has not been established and perfected,and the company information disclosure is not perfect,which makes the creditors unable to fully understand the strength of the trading company and accurately evaluate the transaction risk.In addition,the lack of the call system allows shareholders to "recognize" rather than "pay ",and the subscription system has become the umbrella of the old shareholders.Theoretically,according to the requirements of stakeholder theory and corporate credit theory,the interests of corporate creditors should be protected.According to the theory of interest balance,in order to achieve the purpose of interest balance,the term interests of shareholders can be appropriately sacrificed.Thirdly,it is used to analyze the possible difficulties in practice.As a statutory state,every legal system needs to be implemented under the premise of legal provisions.Therefore,the application of shareholder contribution obligation to accelerate the expiration of the first dilemma is that there is no clear basic law basis.Secondly,after the reform of subscription system,shareholders have the interest of term.Based on this,before the time limit of capital contribution comes,shareholders have the right of defense according to law,which is the second dilemma applicable.Finally,the standard problem that can not be paid off,whether it is the objective standard of enforcement or the subjective standard of the company’s self-admission in the lawsuit,can not protect the interests of creditors.Finally,the corresponding solutions to the above difficulties are put forward.At the time of the amendment of the Company Law,it is the most convenient and authoritative method to incorporate it into the legal provisions.However,before the amendment of the Company Law,paragraph 2 of Article 13 of the Interpretation of the Company Law can be taken as the basis,and the shareholders whose capital contribution period has not reached the end of the can be included in the scope of the article through the expansion interpretation.Secondly,through the analysis of the term interest,it is found that it is not unlimited.When the shareholder’s contribution is an agreed obligation,the shareholder can defend the creditor on this basis,but the shareholder’s obligation is dual and legal.Finally,the author puts forward some suggestions on the standard that can not be paid off,and proposes to adopt the diversified standard,take the company’s continuous solvency as the judgment standard,and comprehensively judge the company’s solvency.In summary,under the background of subscription system,this paper analyzes the accelerated maturity of shareholders’ capital contribution,and thinks that the existing guiding principles of "no acceleration as the principle and acceleration as the exception" are not enough to protect the interests of creditors.