Research On The Problem Of Accelerated Expiration Of Shareholder’s Capital Contribution Under Non-bankruptcy Procedures

After the revision of the Company Law in 2013,the subscription system entered the stage of my country’s capital system.The implementation of the subscription system has lowered the market access threshold and stimulated the investment enthusiasm of market players.However,at the same time,it is difficult to avoid shareholders evading their capital contribution obligations by means of the freedom of agreement such as the capital contribution period.In addition,the lack of corresponding legal regulations and relief measures will bring risks to the interests of creditors and even the entire market order,resulting in an imbalance between the autonomy of shareholders’ investment and the protection of creditors’ interests.The attempt of easing the tension between each other has triggered disputes in the academic and practical circles over whether the accelerated maturity of the capital contribution is applicable under the non-bankruptcy situation.In order to better resolve the disputes,the author believes that we should start with the relevant laws and regulations,and make it clear that China currently only allows the application of the accelerated expiration system to the capital contributions of unexpired shareholders in the case of bankruptcy or dissolution of the company,but there is no clearly defined“non-bankruptcy acceleration”.By analyzing the disputed clauses such as Article 3 of the Company Law and Paragraph 2 of Article 13 of the Judicial Interpretation of the Company Law(3),it can be seen that due to the lack of a unified interpretation of the conditions such as “failure to perform or fail to fully perform the capital contribution obligation”,different scholars have different understandings: “affirmative theory”,“negative theory” and “eclectic theory”,which also reflects the current vagueness of China’s legal regulation.With the new ideas provided by the Summary of the National Court’s Civil and Commercial Trials Conference and the direction pointed out by the Company Law(Revised Draft),it can be seen that China still takes a cautious attitude towards this issue: in principle,it does not support accelerated expiration under non-bankruptcy procedures.At the same time,it is also gradually filling the loopholes in the system through legislation and other means.Through counting and arranging the judgment documents of relevant cases in the past three years,it is found that after the promulgation of the Summary of the National Court’s Civil and Commercial Trials Conference,the number of cases supporting the application of accelerated expiration has gradually increased,and it essentially reflects that the application of accelerated expiration still needs a clear regulatory basis.After reviewing the “this court’s opinion” part of the case,it can be seen that there are a lot of juridical difficulties: “different judgements in the same case” in the application of accelerated maturity in the practical world,the judgment obstacle of “inability to pay off the debts due”,and the different priority of protecting the rights and interests of creditors or shareholders.The author tries to find a solution by analyzing the above dilemma.In view of the above situation,corresponding solutions are proposed.Adhering to the basic principle that shareholders’ capital contribution does not apply to accelerated expiration,first of all,there should be respect for the company’s autonomy,maintaining market order and the company’s stability.Secondly,through legislation and other means,it is important to strictly regulate the disputed expressions and statutory application situations in the laws and regulations,and avoid analogy or expansion of interpretation.At the same time,it is also necessary to improve the protection rules for creditors such as the denial of legal personality,the bankruptcy system,and the limitation on the period of shareholders’ capital contribution.Based on Chinese national conditions and status quo,an alternative mechanism to accelerate the expiration of the is needed,and it is also necessary to clarify the responsible subject,the application situation,the program design of the system and the confirmation of responsibility.To sum up,the author believes that through the improvement of existing rules,systems and the construction of alternative mechanisms,the balance between the protection of shareholders’ rights and creditors’ interests can be achieved to the greatest extent,and the dispute dilemma of “non-bankruptcy acceleration” can be solved.