Corporate Law Protection Of Creditor’s Interests Under Authorized Capital System

Article 97 of the first review of the Company Law(Draft Amendment)in 2021 intends to introduce the authorized capital system into joint-stock companies,allowing the company’s articles of association or the board of shareholders to authorize the board of directors to issue shares that have not been issued when the company is established,and limiting the term and proportion of shares issued.On this basis,Article 152 of the second draft clearly stipulates the term and proportion of authorized issuance of shares in the articles of association of the company or the shareholders’ committee,and adds the provision that payment of shares in the form of non-cash payment shall be subject to a resolution of the shareholders’ committee.These two provisions mean that the basis of corporate capital credit to asset credit transformation,which on the one hand improves the autonomy of corporate financing,but also brings adverse effects of creditors’ interests,for instance,make it harder for creditors to judge the company’s credit,increasing the transaction cost of creditors,and increasing the risk of realizing creditors’ claims.Therefore,the Company law should,according to the institutional demand of creditor’s interest protection under the authorized capital system,perfect the system of creditor’s interest protection.This paper has four parts:In the first part,under the background of the reform of corporate capital system,the foundation of corporate credit is transformed from capital credit to asset credit,and the adverse impact on the interests of creditors will be deeply analyzed.On this basis,the institutional demand for the protection of the interests of creditors under the authorized capital system is discussed.The second part mainly analyzes the deficiencies in the protection of the creditors’ interests under the authorized capital system,including: information disclosure system has not fully satisfied the needs of creditors,the denial of legal personality system is difficult to apply,directors’ responsibility to creditors is not universal,and the principle of shareholders’ contribution drive system,etc.Our company law should further improve the quality of information disclosure,expand the applicable subject of the denial of liability of legal person,clarify the applicable scope of directors’ liability to creditor,and refine the procedural rules about the call for the share payment.And it can be used for reference to the solvency test system under the concept of large distribution.The fourth part starts from protecting the creditors’ interests under the current capital system of our country,combines our judicial practice and foreign experiences,and improves the quality of information disclosure,legal personality denial system,director to creditor liability system and shareholder contribution call system,and suggests introducing appropriately a debt paying capacity test system.Thus ADAPTS our country the creditor protection system to the requirement of authorized capital system.