| Failure to meet capital contribution obligations equity includes unexpired and expired unpaid equity.This article analyzes the liability of the transferor and the transferee after the transfer of the equity,focusing on the two provisions of Article 89 of the draft amendment to the Company Law.At present,it is very common for shareholders to dispose of their unfunded equity,and shareholders who have not fulfilled their capital contribution obligations are also entitled to transfer their shareholder status.Equity in the broad sense includes not only rights but also obligations,When the Unfunded equity is transferred to a foreign party,the capital contribution obligation on it will also be transferred.In academic,the transfer of capital obligation is divided into two views: intentional transfer and statutory transfer.Intention means that the legal effect of the transfer of capital obligations occurs based on the intention of both parties.In this article,through a normative interpretation of the meaning of the two parties,it is argued that when a shareholder transfers a contributed equity interest at a reasonable price,an exemption from liability assumption should be established.The consent of creditors is required for the Exemption from liability to take effect,but the introduction of a corporate consent regime is not consistent with the objective of this reform to deregulate front-end capital,and corporate consent alone may hurt creditors of prior companies.Therefore,this article advocates the adoption of the statutory assumption structure,the transfer of contribution obligations does not occur according to the intention of the parties,and after the transfer of equity,the contribution obligations are legally and generally assumed by the transferee.According to Article 89,the transfer of unexpired equity is a statutory exemption from liability;the transfer of expired unpaid equity is a statutory concurrent liability.However,paragraph 1 of Article 89 provides that the transfer of unexpired equity is followed by the transferee’s obligation to contribute,which will be detrimental to the interests of creditors,and therefore,an attempt can be made to provide an after-the-fact remedy path for creditors by drawing on the relevant provisions of the partnership system.The last chapter of this paper analyzes the internal and external legal relations of equity transfer,as well as the subjects that determine the responsibility of contribution.From the viewpoint of internal relationship,it is not reasonable for Article 89(2)to make "knowledge" as a constituent element of the transferee shareholder’s liability for capital contribution,because the subjective state of the transferee is only meaningful between him and the transferor,and the defect of internal legal relationship has no effect on the outside.In terms of external relations,Article 89(2)provides that the transferor and the transferee are jointly and severally liable for the debts of the company,which is worthy of recognition,because the general assignment of rights and obligations should,in principle,occur as the relationship of concurrent debt assumption.Article89(1)is a new article,which only provides that the transferee assumes the obligation to contribute requires further explanation and justification.Through the review of comparative law provisions and the existing doctrine of capital contribution liability,this article believes that if the transferee shareholder is unable to assume the obligation of capital contribution after the transfer of unexpired equity,the creditor may request the transferor to assume supplementary liability within a reasonable period of time to the extent of the capital contribution. |
