Shenzhen South Mountain V.Hu And Other Directors A Case Study On The Responsibility Of Urging Capital Contribution

Shenzhen South Mountain Case went through first instance,second instance and retrial,the Supreme People’s Court finally applied the duty of diligence to calling for capital contribution for the first time,and realized the accountability of the directors who called for capital contributions negatively.This case is of great significance for theoretical research and practical guidance.First of all,this case has fully displayed the weak investment control system,which means that the shareholders who enjoy the high freedom of contributing inject vigor to the market economy,however,the implementation of subscription but no contribution constantly hits the market credit system in our country,and our country is lacking investment control system to respond accordingly.Secondly,the case highlights the necessity and feasibility of constructing the system of calling for payment.At present,there are two major dilemmas in China’s investment control system: the institutional vacuum and the limitation of the current system.It is difficult to effectively guarantee the company’s capital enrichment,and it is more likely to damage the interests of potential creditors.From the perspective of comparative law,it can be observed that Japan,which has a similar path of capital reform with China,has built a complete director system.Both Corporate Contract Theory and Social Contract Theory can provide theoretical support for the construction of director calling system.Considering the practical status and operability of the system,it is more appropriate to introduce Social Contract Theory in public law.Finally,the concrete structure of the director’s call system can be fully discussed due to the conflicting reasons of the courts at all levels and the fierce confrontation between the parties.Through the focus of the dispute in this case,the whole picture of the system of director’s call can be summarized,including :(1)the nature of call obligation,whether it should be classified as duty of diligence;(2)The scope of application of call obligation,whether it is only applicable in the capital increase stage;(3)The causal relationship between directors’ negative calling behavior and the company’s damage;(4)The judgment criteria for fulfilling the duty of diligence and the types of liabilities to be borne by directors who violate the obligation of calling for contribution.Combined with the judgment of the Supreme Court of retrial,the system of director call system can be set up.It is embodied as follows: the director call system should be established as an important system in China’s investment control system.At the same time,as a part of the duty of diligence,the director’s call system aims to ensure the capital enrichment of the company,so its application scope should run through the whole life course of the company.Directors’ failure to actively fulfill the obligation of calling for payment constitutes an infringement of the company by omission,which together with shareholders’ violation of the obligation of capital contribution will lead to the occurrence of damages.In practice,judges can construct specific personality images of ordinary people in individual cases,and combine the reconstructed business background to comprehensively consider the appropriateness of directors’ actions,and judge the directors who violate the obligation of diligent calling to bear the liability of compensation to the company.Under the premise that the company or the creditors have filed a lawsuit against the shareholders,the directors who violate the obligation of calling for payment shall,as the subject of liability,bear the joint and several supplementary liability for capital contribution to the company or the joint and several supplementary liability for compensation to the creditors.