| The transfer of unexpired and unpaid equity is common after the capital subscription reform,which makes the already complex issue of equity transfer more controversial.Among them,how to determine the liability of shareholders’ capital contribution after the transfer of unexpired unpaid equity is a crucial issue.Article 13 and Article 18 of the Company Law Interpretation(III)are mainly for the transfer of unpaid shares after the expiration date of the capital liability,but in law,the issue of liability for unpaid shares after the transfer of unexpired shares is a blank,in the judicial trial of the above issues there is also a more serious phenomenon of different judgments in the same case.In judicial practice,the court’s decision on such cases has three results: one is the transfer of shareholders to assume responsibility for the capital,the second is the transfer of shareholders to assume responsibility,and the third is jointly and severally liable.There are three reasons for the above judicial disagreement: First,the lack of norms,the transfer of unexpired unpaid shareholdings can not be applied to the“Company Law Interpretation(III)” Article 13 and Article 18 to solve;Second,there are controversies in theory,there are four main doctrines: the transfer of shareholders to assume responsibility,the transferee shareholder to assume responsibility,joint and several liability,theoretical analysis through the different doctrines to The theoretical circles analyze different theories to prove how to reasonably regulate this issue.Thirdly,the provisions of Article 88 of the Company Law(Second Review Draft)make up for the deficiency of the recognition of shareholders’ obligation to make capital contribution after the transfer of unexpired and unpaid shareholdings from the legislative perspective,but some of the provisions are still open to question,such as: it is limited to requiring the transferee shareholder to make capital contribution,which is not conducive to the protection of creditors when the transferee shareholder has a debt crisis;in practice,if there is a In practice,if there is a situation of “topping up”,the transferring shareholder will transfer the equity to the transferee with a significant lack of financial strength should be further specified.In summary,both the practical and theoretical circles are controversial about the resolution of this issue.In order to clarify the corresponding responsibility subjects and forms of responsibility,the article will seek a solution to the allocation of responsibility through case analysis and comparison of different doctrines and other research methods.First of all,it is necessary to clarify the standard of “failure to perform or fully perform”,so as to show the difference between unexpired unpaid equity and “failure to perform or fully perform” and defective equity,as well as the determination that there is no “knowledge or should have known” for unexpired equity transfer.Second,by analyzing the theoretical controversies in the academic field regarding the responsibility of capital contribution after the transfer of unexpired and unpaid equity,we provide a theoretical basis for the solution of the problem;again,we analyze the limitations of each doctrine,so as to propose Lastly,the rules of liability after the transfer of unexpired and unpaid equity are improved by clarifying the criteria of “failure to perform or failure to fully perform” in the legislation,regulating the transfer of equity by analogy with the procedure of capital reduction,increasing the reminder system for the subscribing shareholders,and exercising the right of corporate consent. |
