The Protection Of Corporate Creditors Under The Subscribed Registered Capital System

In 2013,China revised the company law and started the reform of company capital system.Through the introduction of the subscribed registered capital system,it has greatly relaxed the control on the way of shareholders' contribution,the minimum amount of capital contribution,the proportion of non monetary capital contribution,the requirements of compulsory capital verification and the time limit of capital contribution.This has caused the continuous discussion in the field of legal theory and judicial practice,and the protection of corporate creditors under the subscribed registered capital system has become the focus of discussion.Under the subscribed registered capital system,the protection of corporate creditors' interests needs to be focused on,so that the static and dynamic transaction security can be balanced.In the structure of corporate governance,creditors are in a disadvantaged position,agency costs and the behavior of shareholders seeking profits often make it impossible to protect the rights of creditors.The traditional way of the protection to creditors has its own limitations.The protection modes of the traditional civil law and the company law have their own shortcomings.The means of creditor protection should adapt to the continuous changes of commercial environment.Based on the background of deepening the reform of the capital system,this paper discusses how to construct the system of creditor protection.Through the observation of practice and theory,the key points of creditor protection are analyzed from the aspects of accelerated maturity of shareholder capital,corporate personality denial,disclosure of company information and creditors' meeting.Through the analysis of theory and judicial cases,the cause of the problem can be found,and then put forward targeted institutional arrangements.Although the social and economic structure is constantly changing,the transformation from capital credit to asset credit has become a trend,but the orientation of creditor protection of corporate capital system has still remained.Under the subscribed registered capital system,there may be two changes in creditor protection: on the one hand,there may be adverse effects on creditor protection brought by judicial judgment,including some legal loopholes that may not be filled after the reform of corporate capital system,and the uncertainty of judicial judgment due to the lack of unified judgment standards;on the other hand,the lack of relevant supporting systems also brings about adverse effects on creditor's rights protection.The lacking supporting system includes the imperfection of supporting rules and the absence of original auxiliary regulations.The system of accelerated maturity of shareholders is an important means to protect the creditors of the company.However,under the framework of the existing company law,there is a lack of substantive institutional basis for the acceleration of the maturity of shareholders' contribution obligations.There are great theoretical disputes and judgment differences on whether to support the acceleration of the maturity of shareholders' contribution obligations.Most of the theorists hold a positive position,while the practitioners hold negative opinion.This paper holds that,in view of the natural disadvantaged position of creditors in the company,the difficulty of their rights claim and the necessary restrictions on the rights of shareholders,it is necessary to support the acceleration of the maturity of shareholders' investment obligations under specific conditions.Under the framework of the existing company law,although in the “Minutes of the National Court of Civil and Commercial Trial Work",it clearly protects the shareholders' interests within their terms,but two exceptions are provided to support the acceleration of maturity of shareholders' investment obligations.In addition,we can expand the interpretation of "Judicial Interpretations of the Company Law(III)",through the application of the basic legal principles such as the principle of good faith or the principle of proportion,as well as the application of the rules of subrogation in commercial law,to realize the requirement of accelerating the maturity of shareholders' investment.Under the subscribed registered capital system,whether the application of the rule of corporate personality denial will change substantially,the applicable conditions can be divided into subjective elements,behavioral elements and result elements.Under the subscribed registered capital system,there is no great change in the judgment standard of personality confusion.In terms of excessive control and significant capital deficiency,it is possible to deny corporate personality.Equitable subordination rule is of great significance to protect the equality of creditors.Under the subscribed registered capital system,the special influence of the significant capital deficiency should also be considered in the application standard of equitable subordination rule.In a word,to prevent the abuse of the rule of corporate personality denial,we should also pay attention to the comparison of neighboring rules,especially the application order and concurrence of the accelerated maturity of shareholders' contribution obligations.Under the subscribed registered capital system,it is necessary to pay attention to the relevant supporting system of the company's creditor protection,and establish and imperfect the company's information disclosure system and creditor's meeting system.In terms of the construction of the company's information disclosure system,it is necessary to scientifically define the scope of enterprise information disclosure,improve the standard and quality of information disclosure,and urge enterprises to fulfill their disclosure obligations in time.As for the creditors' meeting,we should take the opportunity of the application of “Judicial Interpretations of the Enterprise Bankruptcy Law(III)” to further strengthen the authority and function of the creditors' meeting in the bankruptcy proceedings,and establish the supervision mechanism of the creditors' meeting over the administrator's meeting on major matters.At present,the exercise of the duties and rights of the creditors' meeting of the company's debts completely rely on the contents of the contract,which seriously affects the operation efficiency of the creditors' meeting.It is necessary to introduce the system of creditors' meeting in the future revision of company law or securities law,improve the its application premium level,strengthen the attribute of organizational law of creditors' meeting,and clarify the relationship between creditors and trustee.For the future prospect of corporate creditor protection,in addition to focusing on transaction efficiency and transaction safety,we should make a judgment in line with commercial law thinking,which is,we should pay attention to the balanced protection of interests rather than absolute protection.It is important to protect the interests of corporate creditors,but we should prevent excessive protection from causing interest imbalance of other subjects.It is necessary to understand the particularity of creditor protection from the perspective of organizational law.At the legislative level,we should pay attention to the coordination of legislative rules,including the coordination of departmental laws and different regulatory systems.We should emphasize to achieve common regulatory effects and cooperate with each other,rather than fighting against each other.In the legislative evaluation,we need to pay attention to the external legislative evaluation and strengthen the internal legislative evaluation.In terms of external legislative evaluation,we should pay attention to the pressure of external rules reform brought by “Doing Business 2020” reported by the World Bank Group.The registration system of Chattel Security has not been unified,which not only affects the score of "obtaining credit" index,but also affects the improvement of enterprise information disclosure system.In terms of internal legislative evaluation,we should pay attention to the professionalism and emphasis of legislative evaluation of civil and commercial departments.It is necessary to actively evaluate the legal norms of cost-benefit.