Research On The Realization Of Subscribed Capital Claim

The reform of the company’s capital system at the end of 2013 marks the formal transformation of China’s company’s capital system into a full subscription system.Since then,the subscribed but unpaid capital contribution accounts for a high proportion in the company’s registered capital,which has become a normal phenomenon.At present,the sixth revision of Company Law is advancing.From the Company Law(Revised Draft)published in December 2021,China’s corporate capital system will not undergo subversive changes.It is still the core issue of the company’s capital system to ensure that shareholders’ capital contribution can truly become the material basis to ensure the company’s operation and debt repayment,and avoid the capital contribution subscribed by shareholders becoming an empty paper figure.Starting from the demonstration of the creditor’s right nature of shareholders’ subscribed capital contribution,this paper analyzes the current legal system of capital contribution in China,and tries to explore how to improve the legal rules of corporate capital from the perspective of ensuring the realization of subscribed capital claims on the basis of comparative investigation of foreign legislation.In addition to the introduction and conclusion,this paper is divided into six chapters.The main contents of each chapter are as follows:The first chapter is the basic theory of the realization of subscribed capital claims.The subscribed capital of shareholders,whether or not it is due,is the creditor’s property of the company.Subscribed capital refers to the creditor’s rights of the company to the personal property of shareholders within the scope of their subscribed but unpaid.Subscribed capital is both legal and contractual.The shareholders are members of the company,so there is an organizational correlation between the creditor and the debtor.In the process of realizing the subscribed creditor’s rights,we need to comprehensively consider the multiple value objectives such as freedom,efficiency,fairness and security,and coordinate the interest relationship between multiple subjects with the concept of cooperation,so as to improve the overall interests of the company.The second chapter is the guarantee of subscribed capital claims.Theoretically,subscribed capital can be guaranteed.Requiring shareholders to provide guarantee for their subscribed but unpaid capital conforms to the principle of prohibition of abuse of rights.From a practical point of view,requiring shareholders to provide guarantee for their subscribed and unpaid capital can fill the supply gap of the capital guarantee system and effectively avoid shareholders’ failure to pay their subscribed capital and shake the capital enrichment of the company.The legislative experience of other countries and regions shows that the subscribed capital guarantee is feasible.Based on the general civil guarantee rules,China can make adaptive changes and construct a set of special subscribed capital guarantee rules to guarantee the realization of subscribed capital creditor’s rights and consolidate the company’s capital enrichment.Chapter three is the collection of subscribed capital debt."call for subscribed capital"and "collection of subscribed capital debt" are actually two sides of one body,the difference only lies in the perspective of shareholders or companies to view call for payment.In order to be consistent with the judicial interpretation and the wording of the company law(Revised Draft),the wording of this chapter adopts the expression of "call for subscribed capital”.The current rules on the call of subscribed capital are trivial and vague,seriously lacking operability.Although Article 46 of the company law(Revised Draft)specifically provides for the subscription of capital contributions,there are obvious deficiencies.China can learn from the experience of other countries and regions to make more detailed provisions on the application of capital call,the operation rules of capital call and the restraint and remedy rules of capital call.The decision-making and execution rights of capital call should be determined to belong to the board of directors and the executive director of the company.If the director fails to fulfill his legal obligations in capital call,he should make up the company’s capital together with the shareholders who fail to fulfill their capital contribution obligations,but the director is not the ultimate responsible person and can claim compensation from the shareholders.Chapter four is the disposition of subscribed capital claims.According to the general principle of debt law,the disposition of creditor’s rights also contains the function of realizing creditor’s rights.The claim right of subscribed capital does not have strong ethical attribute and personal attachment,and has the theoretical legitimacy of disposal by means of transfer and offsetting.At present,the disposition of the right to claim for subscribed capital is often dealt with according to the disposition rules of civil creditor’s rights,which may bring risks to the company’s capital enrichment and creditor protection.Our country should construct the disposition system of capital claim which is different from the rules of set-off and transfer of civil creditor’s rights.In principle,the company shall give priority to the realization of the capital subscription claim by way of capital calling.The law should prohibit shareholders from claiming offset,but the company can be allowed to claim offset.The transfer of subscribed capital by the company shall be publicized in time.Chapter five is the advance realization of subscribed capital claim.Subscribed capital has both legal and contractual properties and is the company’s liability property,so it has theoretical legitimacy to realize subscribed capital claims in advance under certain conditions.Allowing the right to claim subscribed capital in advance is not only conducive to ensuring that the time of capital payment matches the actual needs of the company,but also conducive to curbing the irrational capital contribution behavior of shareholders.The current regulations on the advance realization of subscribed capital claim fail to balance the interests of shareholders in time,the efficiency of corporate financing and the protection of corporate creditors.It is advisable for the board of directors or executive directors to claim the right of capital claim on behalf of the company in advance when expressly permitted by law,rather than allowing the shareholders’ meeting to reduce the period of capital contribution at will.When the company is unable to pay off its external debts,the creditors of the company may be allowed to claim the right of capital in advance,but it is not appropriate to allow the creditors to receive compensation directly.Chapter six is the realization of the capital claim after the transfer of unpaid-in equity.Article 89 of The Company Law(Revised Draft)focuses on the fairness of equity transaction between the two parties,but desalinizes the legal compulsion of capital payment.It is a more appropriate system choice to give priority to the realization of the claim right of subscribed capital and to balance the interests of transferor and transferee appropriately.The law should make it clear that both the transferor and the transferee have the legal responsibility to enrich the company’s capital,the transferee has the priority to bear the obligation to pay the capital,and the transferor bears the supplementary responsibility.The recovery between the transferee and the transferor shall be handled in accordance with the agreement first.If there is no agreement,it shall be comprehensively judged in consideration of substantive fairness,combined with the equity type,the cognitive state of the transferee and the consideration paid by the transferee.