An Empirical Study On The Application Of Law To The Accelerated Maturity Of Shareholders’ Capital Contribution

In 1993,China’s first company law established the paid in system for the company’s capital system.In 2005,the company law was revised to change the onetime paid in to installment payment.In 2013,the company law was reformed to implement comprehensive subscription.The time of shareholders’ capital contribution is no longer fixed by law,which is conducive to the "deregulation" of shareholders and the release of market vitality.However,when the balance is biased towards the protection of shareholders’ term interests,the protection of creditors’ interests tends to be tense.When the company’s existing assets are insufficient to pay off its debts,if the shareholders’ subscribed capital contribution has not reached the deadline,can it be recognized as having expired at that time.This issue is a controversial issue in academic circles.Scholars have different views on this issue.At present,it can be summarized into three theories,namely,positive theory,negative theory and compromise theory.In the actual judicial practice,the court does not apply completely unified standards in the process of adjudication.The same cases often appear and different adjudication results appear in different courts.Since this issue is closely related to economic issues,the results of different judgments in the same case have seriously affected the healthy development of the economic market.This paper finds that the reason for the difference of judgment,that is,the dilemma of the application of law,is that the existing legal provisions are not clear.Neither the liability for breach of contract of shareholders’ defective capital contribution nor bankruptcy,dissolution and liquidation can solve the problem well.The judge adheres to the principle of not refusing judgment and mechanically applies other legal systems,but the application of the denial of legal personality system,creditor’s cancellation right,subrogation and bankruptcy acceleration mechanism can not solve the problem well,but lead to the expansion of differences.Therefore,starting from the actual state,collect and sort out a large number of judicial case data,make various data statistics on the cases,and analyze the real situation in its judicial practice,from which we can get: the number of cases involving the system is increasing,and the causes of cases and areas involved are becoming wider and wider,which has become one of the important factors affecting the healthy development of economy.However,through the data,it can also be seen that in the judgment,judges everywhere have no unified attitude towards accelerating the expiration,Although the minutes of the civil and commercial trial work conference of the national courts(hereinafter referred to as the minutes of the Ninth People’s court)brought new judgment ideas,this problem still could not be properly solved.By sorting out the judgment reasons of local courts and making typed treatment and analysis,five types of dispute focus were summarized.First,how to prove that the company has the reasons for bankruptcy but does not apply for bankruptcy;Second,what evidence should be used to prove that the company cannot fully pay off its due debts;Third,we need to check whether the time of capital contribution agreed in the articles of association can be used to defend the creditors of the company;Fourth,for the shareholders who have not reached the subscription period of shareholders to transfer their equity,whether the capital contribution responsibility should be borne by the transferee shareholder or the transferring shareholder should continue to bear the responsibility;Fifth,once the case enters the execution procedure,can the person subjected to execution include shareholders who have not yet reached the time of capital contribution.Finally,starting from the problem,improve the accelerated maturity system of shareholders’ capital contribution,so as to balance the interests of shareholders and creditors.Based on a comprehensive search of relevant literature and data,the author advocates that on the one hand,the accelerated maturity system of shareholders’ capital contribution adapts to the development of social practice.On the other hand,from the perspective of the theory of corporate capital maintenance,shareholders’ legal capital contribution obligations and the legislative purpose of protecting the relevant rights and interests of creditors,it also has a deep legal basis,and can be reasonably explained according to the current legal provisions.In the non bankruptcy state,Whether the company has a strong will to pay off its debts subjectively and whether the company has sufficient cash flow objectively should be judged by a combination of subjective and objective methods to determine whether the company has really entered the situation of being unable to pay off its due debts.Even if the capital contribution period has been clearly stipulated in the articles of association and the subscription period of shareholders has not expired,the internal agreement can not resist external creditors,Then the shareholders who fail to fully fulfill the obligation of capital contribution shall make capital contribution within the subscription limit.