| The capital contribution made by shareholders is the basis for the company’s operation and sustainable operation.When there are flaws in shareholder contributions,they not only affect the integrity of the company’s capital,but also may harm the interests of the company’s creditors.Especially when the company is already unable to repay its due debts,and shareholders also transfer their defective equity contributions,there is considerable controversy about how to reasonably resolve the issue of civil liability for creditors.The "Judicial Interpretation of the Company Law(III)" issued during the period of the paid-in system has solved this problem well,and to a certain extent unified the thinking of judicial adjudication.However,with the change from the paid-in system to the subscription system,the company law no longer enforces the deadline and minimum amount of capital contributions,but leaves it to shareholders to agree on their own,resulting in an increasingly serious phenomenon of defective capital contributions in practice.The number of defective equity transfer disputes caused by this has also been increasing,and a series of new issues have arisen.In current practice,there are still the following issues regarding the civil liability of the parties involved in the transfer of defective capital contributions to creditors:First,there is a view that the concept of defective capital contributions can be used to cover non capital contributions that have not yet expired,thereby requiring the transferring shareholders and transferee shareholders of shares that have not yet expired to bear joint and several liability to creditors.The second is the "Judicial Interpretation of the Company Law(III)",which stipulates that after the transfer of defective capital contributions,the transferee only needs to bear joint and several liability if he knows or should know.The assignee does not need to bear joint and several liability if he or she does not know or is in good faith,but there is no clear definition of the criteria for "knowing or should know".In practice,it often evolves into a presumption of fault in order to protect the interests of creditors.Third,if the company is unable to repay its debts as they fall due after the transfer of equity before the expiration of the capital contribution period,it is unclear whether the creditors can claim accelerated maturity without bankruptcy or dissolution,and who should bear the liability to the creditors after accelerated maturity.The published Second Review Draft of the Judicial Amendment provides for accelerated maturity when the company is unable to repay its debts as they fall due under Article 53,as well as Article 88,Paragraph 1,After the transfer of equity that has not yet reached the deadline for capital contribution,the transferee shareholder shall,in principle,assume the obligation to make capital contributions.However,if the transferee shareholder subsequently makes defective capital contributions,the transferring shareholder shall assume supplementary responsibility for this.However,this responsibility assumption model has also caused considerable controversy.Fourth,there is a lack of legal basis for the parties to bear civil liability to creditors after the transfer of defective capital contributions in a joint stock limited company.Under the subscription system,the interests of shareholders in the period of capital contribution should be respected.Defective capital contributions refer to non capital contributions that have expired,and do not include non capital contributions that have not expired.As for how to judge whether the transferee is in good faith,the main criterion should be whether the transferee is a related person of the company.When the transferee is a related person of the company,it should be presumed that it knows or should know,and if it is not a related person,it is necessary to comprehensively judge whether it is in good faith in combination with other circumstances."When a company is unable to repay its debts as they fall due,it should be allowed to accelerate their maturity.This system is conducive to balancing the interests of creditors and shareholders.After the transfer of equity that has not yet reached the deadline for capital contributions,in principle,the transferee shareholder should bear civil liability to the creditor.After the transfer of equity that has not yet reached the deadline for capital contributions,the transferee shareholder should subsequently have defective capital contributions,whether they are defective capital contributions that have accelerated their maturity or those that have normally matured,",The original transferring shareholder only assumes supplementary liability under specific conditions,not unconditionally.Specific conditions mainly refer to determining whether the transferring shareholder has the purpose of evading debts,and whether the creditor has confidence in the identity of the original shareholder of the company,and comprehensively using the time of equity transfer,transfer price,and the investment ability of the transferee shareholder to make specific judgments.When solving the issue of civil liability to creditors after the transfer of defective capital contributions,a joint stock limited company should distinguish whether it is a listed company or not.Listed companies mainly solve problems through the relevant provisions of the exchange and the CSRC,while sponsors and non sponsors of non listed companies should be allowed to refer to Article 18 of the Judicial Interpretation of the Company Law(III)when there are no clear legal provisions. |
