Study On The Rules For Forfeiture Of Shares

For the first time,Article 51 of the Company Law(Second Deliberation Draft of the Revised Draft)outlines the regulations for the forfeiture of rights of shareholders.,which makes up for the gap in the rule of loss of rights of shareholders in Chinese law,realizes the leap from "nothing" to "all-own",and provides intellectual support for the correct understanding and application of the rules of shareholders’ loss of rights in judicial practice and the issuance of relevant judicial interpretations.This article mainly analyzes through four chapters,Chapter 1 discusses the definition of rules for shareholders’ loss of rights,Chapter 2 discusses the scope of application of shareholders’ loss of rights,Chapter 3 discusses the procedures for shareholders’ loss of rights,and Chapter 4 discusses the legal consequences of shareholders’ loss of rights.The concept of "right" in "loss of rights of shareholders" should be restricted to shares alone.The essential components of a shareholder’s relinquishment of rights are that they postpone fulfilling the capital contribution obligation and,despite being encouraged by the firm,do not comply and the legal consequence is that the shareholder will lose the shares held by the shareholder and the relevant shares will be forcibly transferred,cancelled or forcibly made up by other shareholders if they are not transferred or cancelled.First of all,failure to pay the capital contribution in full and on time can cover "failure to pay the capital contribution in full and on time" and "the actual value of the non-monetary property as capital contribution is significantly lower than the subscribed capital contribution".At the same time,it also covers the situation of false capital contribution in practice.However,it should be clarified that the withdrawal of capital contribution by shareholders is not included,because the withdrawal of capital contribution is far more serious than the false capital contribution,and continuing to retain its shareholder qualification through the shareholder disadvantage rule will be counterproductive to the survival and development of the company.If it has not been fulfilled after the company’s collection,it should first be clear that verifying the capital contribution and calling for the capital contribution is the obligation of the board of directors and not the right.On the one hand,because the law uses the modal word "should",on the other hand,if the reminder of capital contribution is recognized as a right,it is contrary to the nature of the mandatory norm of the shareholder loss of rights rule,so that the purpose of the shareholder loss rule may be frustrated,and there may be multiple shareholders contributing capital at the same time that is not real-time,and the board of directors selectively calls for payment,which deviates from the equality of shareholders,and will also trigger moral hazard and damage the interests of creditors.Therefore,in judicial practice,when a shareholder representative files a lawsuit against the board of directors,if the board of directors cannot prove that it has a reasonable reason not to issue a reminder notice,it can be found that it violated the law when performing its duties as a company.Secondly,the company should issue a written reminder letter when calling for capital contribution,and the grace period for capital contribution is a necessary content of the written reminder.Although "may" is used in the expression of the law to specify the grace period,it should be made clear that the grace period must be stated in the written reminder,because the nature of the reminder is a quasi-legal act,and its legal effect should be statutory.After the pre-procedure of the board of directors’ reminder,if the shareholder who violates the capital contribution obligation still does not make up the capital contribution,it will trigger the company’s right to issue a notice of loss of rights and a series of subsequent legal effects such as equity transfer and capital reduction.There is still a need for further exploration and clarification of relevant legal effects at the level of interpretation.First,the nature of the notice of loss of rights can be interpreted as the exercise of the right of rescission by the company,and the body of the notice of loss of rights is the shareholders’ meeting,not the board of directors.Secondly,the time of shareholders’ loss of rights is stipulated as the date of issuance of the notice of loss of rights,which is contrary to the adoption of the arrival doctrine on the effective time of expression of intention in the Civil Code,and the appropriate path should be for a joint stock limited company to issue a notice of loss of rights in the form of a report,which is an exception to the arrival doctrine.In other cases,the arrival doctrine should still be adopted,and the shareholder loses its equity when the shareholder who has breached the breach of capital contribution obligation is notified of the loss of rights.Finally,since the capital reduction will lead to a decrease in the registered capital,the equity transfer should be carried out first,and the capital reduction can only be carried out if this cannot be achieved.