| The "Revised Draft of the Company Law" stipulates for the first time that the investment obligation after the transfer of equity shall be borne by the transferee,however,the validity of the agreement between the transferor,whether the transferor is completely exempt,and the scope of responsibility of the creditors borne by the transferor are not clear,which is easy to cause questions when specific application,on the other hand,the root cause of solving these problems also lies in the interpretation of the legislative reasons for the transferee’s capital contribution obligation.Therefore,in the first Chapter of the paper,the theoretical basis of the transferee’s capital contribution obligation is explored first.In the first section,through the sorting out of the practical disputes that the two parties have assumed the responsibilities to the company,the focus of the dispute mainly focuses on the legality of the capital contribution obligations,the consent of the company,and the summary and transfer of the creditor’s rights and debts,however,there is no sufficient reasoning.In the second section,the relationship between capital contribution obligations and equity is explored.In the establishment of the company,the company and the individual founder reach an agreement on capital contribution in the articles of association forming the capital contribution obligation;on the other hand,the founder also exchanged the capital contribution obligation for the shares,and the equity is the ownership of the shares.Different from the shareholders’ rights,the equity can be freely transferred by the shareholders without the assistance of the company;in the third section,the rationality of the transferee’s capital contribution obligation is made a discussion.From the comparative law and the discussion of scholars,the statutory nature of the capital contribution obligation in the sense of the Company Law focuses on indicating that the obligation is not exempt rather than must be fixed to a specific shareholder;equity is similar to ownership,for example,the equity transfer will lead to the overall transfer of the company’s legal status.Equity is the core of the legal relationship between shareholders and the company,and the capital contribution obligation as an obligation associated with equity shall also be transferred along with it;drawing on the principle of the typical legal debt and debt summary transfer system,the company pays more attention to the shares rather than the share owner is obvious than the lessee to the leasing property.In the second Chapter,it’s to explore the possibility of its responsibility to the company from the perspective of the transferor.Section I,the liability of the transferor when there is no special circumstances is discussed.The first chapter preceding part of the text only discusses the rationality of the transferee’s capital contribution obligation based on the transfer of equity and the shareholder status,however,from the legal point of view,if the capital contribution obligation is taken as a debt,the transferor’s complete exemption needs the company consent,unless it can learn from the principle of land debt transfer with usufructuary right.However,the lease of the land as the ground right is also subject to the agreement of the parties.Paragraph 1 of Article 89 of the "Draft Company Law" provides a complete transfer of contribution obligations and substantially depriving the company of its right of consent.Moreover,because the capital contribution obligation cannot be exempted,the agreement of the transfer parties can be effective to the company only when the transferor also assumes the responsibility for the capital contribution obligation,and the company cannot make other types of agreement with the transfer parties.In the second section,the possibility of applying the defective equity transfer rules is made a discussion.In the transfer of defective equity,the transferor defaults on the contract first,however,the transferor did not violate any agreement or legal provisions in the outstanding equity transfer,which cannot be directly similar.In the two cases,the difference between the subject of capital contribution obligation can be explained as saying that the obligation object has been specific to the transferred shareholder at the time of the capital contribution obligation expires,and will be transferred along with the term.The premise of the system of accelerating the maturity of investment obligation is that "the company cannot pay off debts after it is enforced",the node must be determined by the claim of creditors,which is an instantaneous status,therefore,it cannot retroactively require the transfer shareholders liability.One point for reference in the transfer of defective equity is to distinguish whether the transferee is informed or not.The ignorance of the transferee in the outstanding equity transfer is usually caused by the joint fraud of the transferor and the company.The company is not a third party in good faith,and the transferee may exercise the right to revoke.In the third section,the disposition of an assignment to an insolvent transferee is discussed,at that time,the liability of the transferor is legitimate.Since there are no specific provisions at present,it can be considered to deduce the obligation of the transferor "not to transfer to the transferee who clearly lacks solvency" in the articles of association in accordance with the principle of good faith.If the transferor breaches the obligation,it shall be jointly and severally liable for capital deficiency with the transferee.Chapter III,the liability to creditors is discussed.When the equity transfer is not registered,the third party presumes bona fide,and the equity transfer will not have an effective force on it.However,a bona fide transaction counterpart has the right to choose either party for liability as a stockholder.On the other hand,in the case of the industrial and commercial registration having been changed,the creditors of the company have obtained the right of supplementary repayment claim to the transferee shareholders by means of the right of subrogation.Since the capital credit still has an independent value,the responsibility of the transferred shareholders for the true payment of the company’s capital should also be extended to the creditors. |
