A Study On Creditor's Rights As A Capital Contribution In Corporation Law

The objections of capital system of company involve making the investment more freedom for shareholders and protecting the creditors of the company. But at different times, different legal systems have their own focus on the objections. Capital system of company in common law system focus on maximizing shareholder interests, civil law focus on the social standard which focusing on transaction security and the protection of the interests of creditors. The law of China is so affected well by civil law that the relevant provisions of company law is also to protect the safety and interests of creditors and protect the social transaction. Therefore, the three principles of capital, often is seen in the literature about the company law, namely the establishment of capital, capital maintenance and capital unchanged.Company Law of China published in 1993 deeply reflects the three principles of capital. For example, the law provided the content about the registered capital and the type of fund .The Company law published in 2005 have been changing the legal capital system, such as the article 26 of the registered capital system with a compromise, 27 of the type of general funding requirements, so it was that our company law Legislation has been transformed from emphasizing on protecting the interests of creditors, to seek the pursuit of efficiency and respond to practice. But whether justifiably claim that the creditor's right investment is been approved for the type of financing investment in China, the revised Company Law has not made an affirmative answer. Although scholars believe that the first paragraph of Article 27 has been approved the type of the creditor's right, because of claims to meet the monetary valuation and the terms of transfer according to law. The article is that except for assets forbidden to be used as contribution by laws and administrative regulations, a shareholder may make its capital contributions to a company in currency or by contributing such non-currency property as material objects, intellectual property rights and land-use rights that can be evaluated in the form of currency and transferred in accordance with the law.The exceptions provision in article 27 raises the question first, namely, administrative regulations have the restrictions on investment are implicit in the rule form of debt as investment requirements. Second, the claims can be valued, but how to determine the value of claims, according to the provisions of the Company law, it sure be that by the statutory bodies to assess and review. However, the revised Company Law has no provisions in the evaluation and reviews of, and has not provided such agencies out there to do a false assessment of damage caused by the creditors at the same time, what are the responsibilities of such institutions. The resulting question is: in the ambiguous legislative mode, the agencies risk of non-state companies to determine the probability of the value of claims and how many? Even so, if agencies wish to assess the correct price risk, but inherent in the legal capital system under the influence of creditors, the company's other shareholders, have questioned whether, and hinder the establishment of the company. Therefore, in the existing legal system, that the financial claims have become a legitimate type of investment the company has yet to be demonstrated.Hinder the claim for the type of investment as the main reason is based on the claim is an uncertain right, if approve the claim as a type of investment; it is possible to harm the interests of creditors.Obtaining the conclusion by those reason, that the company's investment types and firm-related capital system, the company funded capital system affect the type of setting. Therefore, to think the legal capital of our country is the key for solving the claim to become the type of investment. The company demonstrated the establishment of the capital system, evolution, development and the relationship between creditor protections, which became the break our traditional thinking - the capital system is a necessary means to protect the interests of creditor's logical starting point. Secondly, new understanding of the status of claims, claims will also is able to type, as more fully funded theoretical support. Again, on a comprehensive analysis of financial claims, on the reading of financial claims are implemented, unrealized impact on creditors under the circumstances, and the relief system, you become debt financing to build the legitimate purpose after all the words.This article is based on the idea, to take positive analysis, specification analysis and comparative analysis of the in-depth study, and the article is divided into four chapters, each chapter follows.Chapter I is named the relationship between the basic principles of corporate capital system and creditor's protections. This chapter begins to explore the company capital rules from the initial legislative motive, we must use the capital system of the United States and the European Union to analyze that there is no necessary link between the capital system and creditors'protections. Second, a series of changes based on the foreign contrast analysis to establish the capital of China's capital system of credit and creditor protection paradox.Chapter II is named creditor-funded feasibility study. This chapter begins by analyzing the claims presented in the development process changes, as well as countries of Credit, shall be recognized legislative approach, laying the basis for financial claims. Second, the legal basis for financial claims and said that claims and their challenge to the assertion that re-definition and analysis, and further demonstrate the feasibility of financial claims.Chapter III is named International Comparison of debt financing. This chapter from the common law and civil law claims related to the state legislature funded study comparing attitudes of further legislative recognition that our country is the need of the times debt financing. Secondly, the comparison of our current system of debt financing the implementation of company law deficiencies, as well as ideas for the following proposed reforms.Chapter IV is named China's financial claims system design. This chapter will set conditions on the credit investment, according to the definition and implementation of the transfer of debt and investment risk prevention of the claims. And final get the conclusion that it is possible for claim investment in China implementation.