Research On The Legal Issues Of Capital Contribution Liability After Equity Transfer Of Unexpired Capital Contribution Term

At the end of 2013,the capital system of China’s company law was determined to be the full subscription system from the previous installment subscription system.Under the full subscription system,the minimum amount of registered capital,the time and form of capital payment become the content of shareholders’ autonomy.As a result,the subscribed but not paid or not fully paid equity(hereinafter referred to as "not paid equity")has become normal,and the transfer of not paid equity has occurred in practice.The transfer of equity in the future investment term involves the interests of many parties.In practice,the lack of relevant legislation leads to the problems of whether the equity transfer is effective and who should bear the responsibility of capital contribution after the transfer,which brings troubles to the judicial organs,and also causes difficulties to the implementation of the subscription system and the investment and financing market.This paper attempts to clarify the relationship among transferring shareholders,transferee shareholders,companies and corporate creditors after the transfer of shares in an outstanding investment term,and summarizes and analyzes various disputes that may affect the assumption of capital contribution liability through the study of related issues.Thus,the viewpoint and specific system design of the responsibility of capital contribution after the transfer of equity in the future capital contribution period are put forward.This paper is divided into four chapters,and the contents of each chapter are as follows:The first chapter sorts out the current situation of legislation and judicial judgment on the assumption of capital contribution liability after the equity transfer of the unexpired capital contribution term as well as the viewpoints of the academic circle.First of all,at the legislative level,it is determined that there is a legislative gap in this aspect in China at present,and there is no applicable clause to invoke in the Company Law and relevant judicial interpretation.Secondly,through the analysis of relevant cases,it is found that there are great differences in the practice circles on the determination of capital contribution liability after the equity transfer of the unexpired capital contribution term,and the phenomenon of different judgments in the same case is frequent.In the absence of legislation,judicial organs of different levels and regions have different understandings and attitudes on which clause to adopt to solve this problem.Finally,this paper summarizes three different viewpoints on the subject of capital contribution liability caused by the transfer of the shares in the term of capital contribution,including the transfer shareholder assumption theory,the transferee shareholder assumption theory and the differential liability theory.The second chapter analyzes the core dispute points about the assumption of capital contribution liability after the equity transfer of the unexpired capital contribution term.First of all,the legal analysis of equity transfer is made,and the equity is transferable,and the contribution obligation is a combination of legal and contractual nature.Secondly,the paper probes into the tendency of the distribution of capital contribution liability,respectively sorting out the two viewpoints that are inclined to protect creditors and inclined to protect shareholders,and puts forward the viewpoint that the interests of creditors and shareholders of the company should not be biased against either party.Then it analyzes whether the time of creditor’s right formation,the price of equity transfer and the subjective situation of both sides of equity transfer will affect the allocation of capital contribution liability.Finally,the paper probes into the controversial design points of creditor protection system after the transfer of shares in the unexpired investment term.Through analysis,it points out that in the case of normal equity transfer,the transferring shareholder should assume supplementary liability when the transferee shareholder has exhausted his property and means and still cannot fulfill the contribution liability,which is a feasible way to protect the interests of creditors.The third chapter takes the subject of responsibility as the entry point and clarifies the factors affecting the responsibility bearing on the basis of the above analysis.The contract of protecting the shareholders’ free withdrawal interest and the obligation of capital contribution is the basis for the assignee to undertake the responsibility of capital contribution,while the legal nature of protecting the creditor’s interest and the obligation of capital contribution is the basis for the assignee to undertake the responsibility of capital contribution.Transferee’s subjective situation in the transfer of equity will also have an impact on the allocation of capital contribution responsibility.On the basis of the above research,in the fourth chapter,the author puts forward some suggestions on the design of specific rules for the assumption of capital contribution liability after the equity transfer in the future investment term.First of all,under normal circumstances,the equity transfer of the unexpired investment term should be borne by the equity transferee,which is not only in line with the purpose of the reform of the subscription system,but also can stimulate the investment willingness of market subjects.However,even if there is no fraudulent behavior of the transferor and no malicious collusion between the transferor and the transferee,there still exists a situation in reality where the transferee’s capital contribution capacity is lower than the transferee.At this time,in order to take into account the interests of the company’s creditors,it is appropriate to stipulate that the transferor should bear supplementary liability within 5 years after the transfer of the equity.Secondly,if there is fraud in the transferring shareholder,it is determined whether the transferee needs to perform the contribution responsibility first according to whether the company is involved in the fraud,but the transferee is the ultimate subject of responsibility.Finally,if the transferee colluded maliciously to evade the obligation of capital contribution,the transferee should bear joint and several liability.