Research On Accelerated Maturity System Of Shareholder’s Contribution Under Subscription System

Since the reform of China’s capital system,the company’s autonomy has been expanded from the paid in system to the subscription system,financing efficiency has also been greatly improved,for shareholders,they have greater autonomy in the amount and duration of capital contribution.But just because of the system reform,at the same time,it also brings the problem of accelerating the maturity of shareholders’ capital contribution obligations.In the existing legal system,only the Enterprise bankruptcy Law provides a kind of applicable shareholder acceleration of maturity,but in the case of non-bankruptcy,whether the accelerated maturity system of shareholders’ capital contribution obligations can be applied has triggered a series of new problems,which is also the "sequela" of the hasty revision of the Company law.This paper is mainly divided into five parts to analyze this problem:The first part is the introduction.This part mainly combs the relevant literature in the academic circles,combs the controversial points related to the accelerated maturity of shareholders,and then discusses the problems involved through normative research method,empirical research method and comparative analysis method.The second part is to analyze the current law of accelerating maturity.This part mainly analyzes the controversial laws and regulations in the theoretical and practical circles.First,in the company law,there is a controversy over whether the second paragraph of Article 3 and Article 28 should be interpreted by meaning or by extension.However,no matter which interpretation method is adopted,there is no clear provision on the acceleration of maturity.The second is the Enterprise bankruptcy Law,which clearly stipulates that only when the company enters into bankruptcy or liquidation procedure,shareholders’ contribution can accelerate the maturity,but for the company that has not entered into bankruptcy procedure,whether it can accelerate the maturity when it cannot pay off the debts due has not been stipulated.Then comes the Contract Law,the subrogation right system and the revocation right system often appear as supporting reasons for ripening,but because the application of these two systems has strict preconditions,they can not well solve the problem of acceleration of maturity.The last one is Jiu Min Ji Yao,which mainly holds negative opinions,but also stipulates that two special cases can be applied to accelerate the expiration.However,since it is only minutes of the meeting and does not have legal effect,it can only be used as reference.The third part is the dilemma in judicial practice.This part takes China judicial document network as the data source,with "capital contribution obligation",expire "accelerate" as keywords selection for nearly three years of information written judgment,intensive reading on the documents and found that after careful combing,statistics,the court until the referee acceleration related to the case when a similar case and in judicial practice,the application of accelerated maturity is generally based on the principle of negation and the principle of exceptional support.In addition,even if the opinion is supported in the judgment,the reasons for making the judgment are different.and even the opposite situation may occur.Therefore,the actual situation in the judiciary also reflects the urgent need to solve this problem.Finally by due for speeding up in front of the system related to the current law is analyzed,and in the practical application of judicial practice,it is found that in judicial practice to accelerate due system because the legal provisions shall be applicable to the fuzzy and even led to different class appeared in the process of practical application case,this shows that we should improve the existing legal norms and make the provisions of legal provisions more clear so as to better maintain the seriousness of justice.The fourth part is the justification of the accelerated maturity system.At present,there are three attitudes towards the accelerated maturity system: support,oppose and oppose,but there are exceptions.The confirmation of supporting this view mainly includes legal support,that is,expanding the second paragraph of Article 3 of the company law and the second paragraph of Article 13 of the interpretation(III)of the company law to better protect the interests of creditors;According to the theory of the consistency of rights and responsibilities,it is precisely because shareholders have the right to term interests that they should bear the corresponding obligation not to damage the interests of creditors.Convention validity defect theory,that is,internal agreement has relativity,can not fight against external creditors.The negative theories that hold opposing views include lack of legal basis,strict interpretation,creditor’s own risk and existence of other relief channels.Finally,it is commonly known as compromise theory,which is similar to Jiu Min Ji Yao,holding that the application of shareholder acceleration of maturity should be negated as a principle,and can only be applied under special circumstances.Finally,through the analysis and correction of the negative and compromise views,and from the practical significance of the accelerated maturity system,to provide sufficient justification for the accelerated maturity system.The fifth part is the realization path of shareholder accelerated maturity.This paper puts forward some suggestions from entity level and procedure level respectively.First of all,the entity level needs to clarify the creditor’s claim basis,which is appropriate to use the right of subrogation.It is also necessary to clarify the scope of liability of shareholders in the acceleration of maturity,that is,it is limited to the part that has not yet contributed,and should not bear the corresponding interest,nor be deducted by the corresponding interest,and give their own legislative suggestions.The next is the procedural level,that is,to build a collection system.The causes of call can be divided into legal causes: the company’s failure to repay a single debt under the standard of cash flow;Intentional cause: if the articles of association or agreement or both agreements are agreed to by the shareholders or the board of Directors,the board shall be the subject of collection,which is preferred because of its innate advantages.At the same time,a supporting responsibility mechanism should be set up to regulate the execution of the board of directors’ demand for payment and the timely investment behavior of shareholders after the demand for payment.