On Creditor Protection From Perspective Of Coporate Capital Reform

The company's registered capital system reform is a special reform measure for the company's registered capital system under the macro background of the central government's new requirements for market economy reform in the new era.At the legal level,it is manifested that the company registration is changed from the previous legal registered capital payment system to the registered capital recognition system.Such reform measures play an important role in stimulating the vitality of market players,fostering the creation and growth of companies,and an active market economy.The reform of the company's registered capital system conforms to the trend of the development of contemporary corporate law.It relaxes the control of market entities to enter the trading field,which minimizes the threshold for market participants to participate in transactions,and enhances the efficiency and convenience of transactions.While the reform of the registered capital system of the company brings convenience to economic development,the negative problems it derives cannot be ignored.In accordance with the principle of determining,maintaining and changing the company's capital in the traditional company law,the company can rely on its strong registered capital to ensure that the company has sufficient risk resilience and debt repayment ability.At that time,as the creditor of the company's development stakeholders,the interests of the company can be effectively protected by the effective barrier of the company's capital.However,after the reform of the company's registered capital system,the existing three principles of registered capital of the company have been affected to a considerable extent.The barrier function of the original company's registered capital has disappeared,and the interests of creditors have been greatly affected.On the one hand,creditors can not rely on the barrier formed by the company's capital to protect itself;On the other hand,under the institutional framework of the current company law in China,creditors are independent of one party outside the company while losing the company's capital protection.They cannot know the company's internal business information and financial information,and cannot accurately grasp the company's business trends.It is even more uncertain to ensure the safety of funds flowing into the company through its own loan relationship.The new institutional changes in the company's registered capital system reform combined with the absence of institutional rules in the existing company law have led to the construction of corporate creditor interests protection mechanism has become an urgent problem to be solved.Inspect the internal and external entities of the company for different time nodes and identity positioning,and be able to know the specific legal relationship between the parties to the company's affairs and the types of liabilities that may arise.In the pre-establishment phase of the company,the company's personality did not exist,and the company was not an independent legal entity.Only through the sponsor agreement,many investors are connected together,and the parties are a standard contractual relationship.The sponsor agreement is the basis of the rights and obligations between investors.If the parties fail to fulfill their obligations as required by the sponsor agreement,for example,failing to pay their subscribed capital in a timely manner will result in a typical breach of contract.After the establishment of the company,the sponsor agreement was changed into the company's articles of association,and it also has the nature of the agreement,so the parties still have a contractual relationship.However,in the company's operation process,the company's management or management layer may form a tort liability for the company's infringement based on the consideration of self-interest maximization.As a subject independent of the company,the creditor forms a capital loan relationship with the company through a contract.The company will form a liability for breach of contract,and the management and governance of the company and the creditor may also form an infringement relationship.After sorting out the main body relationship and responsibility types of the company's affairs,it is not difficult to find out that the post-company registration system reform stage focuses on the reform of the company's articles of association,which is based on the institutional reforms,and the registration capital is too large and the payment time is too long.Significantly insufficient payment,difficulty in identifying the value of the shareholders' physical contribution,whether the capital contribution of the shareholders under the new capital system requires capital verification,the difficulty in obtaining the company's real capital information,the legal obstacles on the company's capital collection and the institutional dilemma of the creditor requesting the shareholders to bear the company's debt.The above problems cannot be solved by a single measure.Because there are intricacies of their own structure and the complexity of the background of the times they face.If the above problems are classified,the approach of the law typed measures from the perspective of functionalism is undoubtedly the most effective treatment.In essence,the above problems should be attributed to the problem domain of company law at the ontology level.Under the background of the reform of the company's registered capital system,the existing corporate law system rules can no longer meet the new problems of creditor protection under the registered capital subscription system.The rules of company law need to be optimized and upgraded in order to cope with the company's capital system better.At the same time,any problem,especially a highly complex one,is difficult to deal with through a single solution.Besides corporate law,such problems with comprehensive and complex factors need to be adjusted simultaneously with the relevant institutional rules,in order to solve the new problem of creditor's interest protection under the background of the company's registered capital system reform.Specifically,on the company law aspect,the following rules should be optimized to solve the problem of protecting the interests of creditors in the context of the reform of the registered capital system.First of all,simplify the starting conditions and certification responsibilities of the company's personality denial.As long as the company creditor can prove that the shareholder has the initial situation of abusing the company's limited personality,the company's personality denial can be initiated.Since the creditor is in a weak position compared to the company and its shareholders,the subjective aspect of the abuse of the company's personality by the shareholders takes the technical means of the burden of proof and protects the interests of the creditors.Secondly,in the case of controlling the company and the subordinate company,once the subordinate company becomes insolvent and enters the bankruptcy liquidation procedure,it should be allowed to break through the restrictions of existing institutional rules and start the “equilibration”,the principle of bankruptcy liquidation protects the interests of creditors.Thirdly,through the method of legal interpretation,by introducing the "legal creditor's rights" theory in the US case law,the creditor is given a direct claim to the shareholders who have not paid the capital to ensure that the interests of the company's creditors are effectively protected.Finally,the capital verification process that was cancelled in the company law reform should be resumed.The reason why the capital verification process should be resumed is as followed.The capital verification procedure is a verification measure of the authenticity of the company's capital through a professional third party.Its institutional function is to ensure the authenticity of the registered capital,and then to protect the interests of the relatively issued creditors,especially in the context of the reform of the registered capital system.Corresponding to the optimization of the institutional rules of the company law,other rules with associated relationships other than company law should also make coordinated and coordinated adjustments.Frist of all,at the administrative supervision level,the competent authority is required to set up a mandatory disclosure mechanism for company information.The disclosure of certain sensitive information(other than business secrets)should be limited to corporate creditors.By forcing information disclosure,company creditors can timely understand the company's business information and financial information,and ensure that the interests of creditors are well protected.On this basis,if the company does not disclose the information in time,it will cooperate with the corresponding administrative punishment measures to increase the illegal cost of the perpetrator and increase the powerful shock to its illegal behavior.Secondly,on the aspect of contract law,the interests of creditors can be protected through the improvement of the system of credit subrogation and revocation in the contract law.By changing the distribution of litigation burdens in the contract subrogation right and the revocation right,decreasing the creditor's proof obligation.It can achieve the purpose of protecting the creditor's interests in the context of the registered capital system reform and make the application of the system more compliance with the real situation of the transaction structure.Third,at the level of bankruptcy law,the interests of creditors should be protected by reforming the insolvency obligations of shareholders in the process of bankruptcy.On the level of proof responsibility distribution,the debtor's certification obligation should be strengthened and the creditor's burden of proof should be weaken.After the scientific rationalization and adjustment of the existing legal rules,the protection of the creditor's interests can be basically solved at the institutional rule level,and the requirements for the protection of creditors' interests also can be met.At the same time,in order to better protect the interests of creditors and respect for corporate autonomy in the context of the new system,it also can be considered trying to break through the traditional corporate governance structure at the legislative concept and technical operation level.Giving creditors the right to join the corporate governance structure and participating in an important part of corporate governance are useful ways to solve this problem.By participating in governance,expressing opinions,exercising rights,and checking the company's board of directors,creditors can form a strong protection of their own claims.Specifically,the purpose of creditor involvement in corporate governance is achieved in two ways.On the one hand,it may be considered to set up a meeting of corporate creditors,giving creditors the right to dissent the decision-making affairs of the company's board of directors,directly changing the existing corporate governance structure,and forming a check and balance of the rights of the board of directors at the creditors' meeting;On the other hand,it can be considered to retain the existing corporate governance structure,reorganize the company's board of supervisors,establish a creditor committee in the board of supervisors,learn from the advanced experience of the German board of supervisors,and pass the right of information and consent to reserve,so that the board of supervisors can play The function of the balance of the board of directors,in turn,better protect the interests of creditors.