The Study On The Feasibility Of Human Capital Contribution And Its Risk Prevention Mechanism

On December 24,2021,Company Law of the People’s Republic of China(Revised Draft)(“《中华人民共和国公司法(修订草案)》”),which was considered by the Thirtysecond Meeting of the Standing Committee of the Thirteenth National People’s Congress,was formally made available to the public for comments.The draft absorbed the practical experience and added equity and debt to the types of capital that can be contributed in Article 43,however,the current draft did not absorb the pilot experience of human capital contribution and did not affirm the legality of human capital contribution.In practice,the demand for human capital contribution is increasing.However,based on the characteristics of human capital such as personal attachment,the academic community generally believes that human capital contribution cannot meet the requirements of valuation and transfer as stipulated in Article 27 of the Company Law.This article focuses on the current regulations of human capital contribution in four places,compares the provisions of the U.S.Model Company Law and the Delaware State Corporation Law,and considers the current practice of human capital contribution in China,and argues for the difficulties in valuation and transfer of human capital raised by the academic community.Finally,this article suggests to prevent the additional risks arising from human capital contribution from outside and inside.The research topic of this paper is the feasibility of human capital contribution and its risk prevention mechanism,and the main part of this paper consists of five chapters:The first chapter is about the characteristics of human capital and its realistic needs for contribution.This chapter starts with introducing the personal dependence,intangibility and gradual performance characteristics of human capital,and argues the property value of human capital by analyzing the scarcity of human capital and combining it with the case of the valuation adjustment agreement signed by the passing entertainment company.The second chapter is the theoretical dilemma and practical exploration of human capital contribution.This chapter outlines the difficulties raised by traditional scholars on human capital contribution:(a)it is difficult to be classified into the system of civil legal relationship objects;(b)it conflicts with the principle of capital determination in PRC Company Law;(c)it is difficult to meet the elements of assessability and transferability stipulated in PRC Company Law;(d)it is difficult to protect the interests of the company and creditors.On the other hand,it introduces the gradual liberalization of pilot legislation at the practical level,the broad criteria of the U.S.Model Business Corporation Act and the Delaware General Corporate Law on the subject matter of capital contribution,and highlights the necessity of allowing human capital contribution through comparison.The third chapter is the feasibility analysis of human capital appraisal and its rule design.By arguing that human capital can be appraised theoretically and has been appraised at the practical level,this chapter argues that human capital satisfies the appraisability elements stipulated in the company law,and proposes the criteria for human capital appraisal subjects to be appraised by shareholders with reference to third-party appraisal agencies,as well as the dynamic assessment of human capital contribution proposed by absorbing the spirit of the legislation of Jinan Free Trade Zone The assessment method of the arrival of human capital.The fourth chapter is an explanation of the feasibility of human capital transfer,and the contents of this chapter are the core and difficult point of this paper’s argumentation.From the perspective of balancing the legitimate rights and interests of the company,shareholders and creditors,this chapter demonstrates the necessity of expanding the interpretation of "transfer" of human capital,including partial transfer,by considering the practice of expanding the interpretation of transfer of intellectual property rights.It analyzes the actual and legal rights of human capital in conjunction with the provisions of the Civil Code,and divides the rights of human capital into possession,actual and legal rights of use,actual and legal rights of income,actual and legal rights of disposal,and argues that the legal rights of use,legal rights of income and legal rights of disposal of human capital can be transferred to meet the requirements of transferability under the Company Law.The fifth chapter is the risk control of human capital contribution,and this chapter prevents the additional risks brought by the form of human capital contribution from two perspectives: external and internal.Combining the provisions of local pilot legislation and theories of domestic scholars,and drawing on the provisions of the U.S.standard company law,from the internal perspective,it is recommended to set up a public notice system for human capital contribution,regulate the joint and several liability of human capital carrier investors and non-carrier investors,and impose restrictions on the industry and from the internal perspective,i.e.,the human capital contributors themselves,it is recommended to set up a compulsory personal liability insurance system,a share retention system,and to analyze the restrictions on noncompetition and part-time employment suggested by the current legislation and academia.