Study Of The Judicial Application Of Capital Contribution Liability After The Transfer Of Unpaid Equity

This paper discusses whether creditors can request shareholders to accelerate the maturity of their capital contribution obligations when the company cannot pay off external debts under the subscription system,under the background of the external transfer of equity of limited liability companies and joint stock limited companies initiated and established,and under the condition that the shareholders transfer their equity before the deadline of capital contribution and pay in full capital contribution,and if they are sure to accelerate the maturity,the rules for the distribution of internal responsibilities of shareholders.At present,there is no clear provision in law,and there are many cases of different judgments in the same case in practice.Taking 90 relevant cases as research samples,this paper finds that the dilemma of this problem in judicial application is mainly concentrated in two areas.One is the related problems of accelerating the expiration of shareholders’ capital contribution obligations,such as whether shareholders’ capital contribution obligations can accelerate the expiration in the case of non bankruptcy and non liquidation? What is the claim basis for the accelerated expiration of the judgment? What are the requirements for accelerating the expiration of shareholders’ capital contribution obligations? Second,in the case of qualitative evaluation of accelerated maturity of capital contribution obligations,the distribution of responsibilities between transferring shareholders and transferee shareholders is another difficulty.For example,how to distribute the follow-up responsibilities among relevant subjects?What is the basis of legitimacy? Do other relevant factors have an impact on the allocation of responsibilities?Aiming at the core dispute focus of the above problems,this paper intends to analyze the judicial application dilemma of the capital contribution liability after the expected equity transfer in three parts: the first part is a summary of the current situation of the topic selection theory and judicial practice,and selects some representative judicial cases to summarize the tendentious solutions and main differences in the academic and judicial practice.The second part discusses the premise of capital contribution responsibility distribution after overdue equity transfer-the accelerated maturity of shareholders’ capital contribution.In the case of "insolvency" of the company,accelerating the expiration of shareholders’ capital contribution obligations is the best choice to balance the interests of all parties.Due to the lack of theoretical and practical arguments for the right to claim the accelerated expiration of shareholders’ capital contribution obligations,we should clarify the path through the legislation of the company law system.Legislation should also make it clear that the judgment of "the company cannot pay off" needs to be confirmed by the implementation procedure.Based on the consideration of preventing substantial deprivation of shareholders’ interests during the period of capital contribution,the creditor’s right to request the accelerated expiration of shareholders’ capital contribution obligations should return to the trial procedure and should not be exercised in the execution procedure.Shareholders who fail to meet the deadline enjoy the interests of the deadline according to law,so the scope of responsibility for accelerating the maturity should only be for the unpaid capital.The third part is the responsibility distribution mode after the accelerated expiration of shareholders’ capital contribution obligations.The existing responsibility distribution model has its own disadvantages.The theory of joint and several liability in the theory of individual liability and joint liability of transferring shareholders limits the liquidity of equity.The theory of differentiated responsibility takes the factors such as the formation of creditor’s rights before the equity transfer,the transferee’s solvency and the transferee’s subjective state as the basis for the division of responsibility,which has some problems,such as insufficient justification,no legal basis and weak operability,so it can not be applied alone.Under the premise that the transferee shareholder has the legal status of capital contribution,the transferee shareholder shall obtain the responsibility.The agreement on the obligation of capital contribution between the transferring shareholder and the transferee shareholder cannot be against the company and external creditors.The transferee shareholder can recover from the transferring shareholder according to the agreement after performing the obligation of capital contribution.In the case of malicious collusion in the transfer of equity,the company and external creditors have the right to require the transferring shareholders to bear joint and several liability.However,the judgment of "malicious collusion" standard is complex.It can comprehensively judge whether there is subjective "malice" between the transferring shareholder and the transferee shareholder and cause "damage" to the company’s assets or trust interests to the company or creditors by considering whether the creditor’s rights are formed before the equity transfer,whether the creditor has high trust in the transferring shareholder,and whether the consideration of equity transfer is significantly lower than the actual value at the time of transaction,Finally,it will be clarified through judicial interpretation.