| After the reform of the company’s capital system,shareholders enjoy the right to agree with the term of equity contribution,the method of capital contribution,and the amount of capital contribution subscribed by shareholders to the company can be paid within the time limit they have committed to subscribe.This is the term benefit of capital contribution granted to shareholders under the New Company Law.However,this also raises the question of whether the shareholders’ capital contribution should bear the responsibility of the transferring shareholder or the transferee shareholder,or whether the two should bear joint and several liability after the shareholders transfer all their unpaid shares.Due to the lack of clear legal provisions and judicial interpretations,judicial practice often relies on the provisions of Article 18 of the Provisions of the Supreme People’s Court on the Application of Certain Issues(III)(<Company Law of the People’s Republic of China> hereinafter referred to as<Company Law> the "Judicial Interpretation(III)").However,due to the < Company Law >controversy over whether the scope of "failure to perform or not fully perform the capital contribution obligation" stipulated in Article 18 of the Judicial Interpretation(III)includes the transfer of unpaid equity by shareholders,there are also great differences between theoretical and practical circles on the legal basis and distribution rules for capital contribution liability after the external transfer of unpaid equity within the time limit.Article 88 of the Company Law of the People’s Republic of China(Revised Draft)(Second Deliberation Draft)(hereinafter referred to as the "Company Law(Second Deliberation Draft)")promulgated on December 30,2022 stipulates that the transferee shall bear the obligation to contribute capital,and the transferor shall bear supplementary liability for the transferee’s capital contribution that has not been paid on time.However,in view of the fact that there are still different views and major differences in the current discussions on this topic in the corporate law and practice circles,the issuance of the Company Law(Second Reading Draft of the Revised Draft)does not mean that the solution to the question of the attribution of capital contribution liability will tend to be the same.Based on the foregoing,this article discusses which entity should bear the capital contribution liability of the target equity when the shareholders of the company transfer their unexpired capital contribution period and have not actually paid the capital contribution under the subscription system,and the equity transfer agreement is legally valid and the corresponding change registration procedures have been completed,and the shareholders’ capital contribution expires at an accelerated date".On the basis of concluding that the free transfer of equity under the subscription system is legal and effective and that capital contribution must not be accelerated under non-statutory circumstances,this paper sorts out and analyzes the opinions of scholars and the adjudication ideas of judicial practice.The main solutions are:(1)expanding the interpretation of <Company Law> Article 18 of the Judicial Interpretation(III)or applying Article 3 of the Company Law,and the transferring shareholder shall bear the responsibility;(2)Distinguish capital contribution liability by the time of formation of claims;(3)The interests of creditors are better than the interests of shareholders,and the transferring shareholders should bear the corresponding capital contribution responsibilities;(4)The civil law debt assumption theory is applied by analogy,and the transferee shareholder is liable.Through analysis and argumentation,the above solution paths are unreasonable.With regard to the "Construction of Rules for the Distribution of Capital Contribution Liability for Unpaid Equity Transfers under the Subscription System",this paper starts from the legality of the commercial appearance doctrine and the shareholders’ capital contribution obligations,and argues that attention should be paid to the boundary of creditors’ interest protection,the commercial appearance doctrine should be strictly adhered to,and the transferee shareholders should bear the capital contribution liability.The transferor’s obligation to contribute capital is statutory,and although it cannot be waived with the transfer of shares,since the legislation does not expressly provide for this issue,the transferor shareholder cannot be held liable outside the law.In addition,when the transferor shareholder and the transferee shareholder collude in bad faith,the equity transfer agreement signed by both parties is invalid and they are jointly and severally liable within the scope of the unpaid capital interest.Therefore,within the current legal framework,the rules for assuming responsibility for capital contributions that are "severed in principle and exceptionally linked" have been constructed. |
