On Civil Liability Of The Capital Contribution Flaw Of Shareholders

Capital contribution is shareholders'fundamental duty. The duty of capital contribution bears the characteristics of both stipulated duty and legal duty. Thus, once there is violation of the duty of capital contribution of shareholders, the shareholders shall not only shoulder the responsibility of breach of contract but also the responsibility prescribed by the law. The responsibility of capital contribution flaw of shareholders is not the same with ordinary civil liability and it has its peculiarities in main body, property, criterion of liability, main body of claim and other aspects.The basic aim of the regulations of the responsibility of capital contribution flaw prescribed in company law is to strengthen the relief of the interests of companies, honest shareholders and company creditors in order to maintain the balance of the interests among parties and the balance of interests between parties and the society in the hope of promoting the harmonious and stable development of market economy. Therefore, some compulsory rules shall be adopted in company law. At the same time, the intensity of coercive power of the country to interfere with private law shall be taken into consideration in order to guarantee the validity and effectiveness of the rules.The duty of capital contribution of shareholders means the duty of shareholders to deliver property or fulfill other obligation to company as the regulations prescribed by the contract and law. The nature of the duty of capital contribution of shareholders is both stipulated duty and legal duty. Capital contribution flaw of shareholders means shareholders'violation of capital contribution duty or the fulfillment of capital contribution does not conform to the regulations of law, establishment contract or company rules. The manifestation of capital contribution flaw takes the forms of no capital contribution, improper capital contribution or drawing-out of capital. The conduct of shareholders'capital contribution flaw goes against the principle of capital enrichment of company seriously and do harm to the basic transaction safety among market parties and interfere with normal economy order of market and stability of society. It also invades the legal rights of companies, other shareholders and creditors. The legislation of most country in the world have given detailed regulations to civil liability of shareholders'capital contribution flaw.The foundations of the liability of shareholders'capital contribution flaw are sponsor contract, rules of company and the regulations in company law. When the company has been established, the liabilities of shareholders'capital contribution flaw are as follows: responsibility of breach of contract, responsibility of capital enrichment, responsibility of damage compensation and the direct responsibility of shareholders to creditors. When the company has not been established, the liabilities of shareholders'capital contribution flaw are the responsibility of breach of contract and the responsibility of damage compensation. The author holds that sponsors as well as directors of company and other senior administrative staff and dishonest intermediaries shall act as the party that shoulder the responsibility of capital enrichment and joint responsibility with the shareholders with capital contribution flaw for the damage done to companies, honest shareholders and company creditors caused by their faults. The principle of fault estimation shall be adopted for capital enrichment responsibility instead of the principle of no fault liability. The company creditors could make claim to the shareholders with capital contribution flaw directly when the status of legal person of company has not been denied and the company's property is insufficient for the clearness of the debt. However, the limit shall be the shareholder's unpaid capital.The defects of the civil liability system of capital contribution flaw of shareholders in our country are mainly as follows: the unbalance of responsibility system, relatively many gaps in law, ambiguities in the application of regulations of law, etc. The civil liability system of capital contribution flaw of shareholders in our country shall make a reasonable boundary between nation coercion and autonomy of private law, based on comprehensive investigation of the relationship among shareholders and companies, other shareholders and creditors, reconstruct the system according to the design aim and innate function of capital system in order to strengthen the protection to companies, honest shareholders and creditors.