Joint And Several Liability Of Shareholders Of A Company

The liability of shareholders of a company is based on the independent liability and limited liabiliry, but in the case of the situations as the shareholder regardless of his liability of caution, loss of good faith, and abusement of shareholder's rights, it is necessary to bear the joint and several liability by the shareholder.The legislation of joint and several liability born by the shareholders regulated in the amended company law has been analysised in this article.The amended company law regulated the relative situations and applied conditions of the shareholders bearing the joint and several liability in five articles. In short, it provided that(1)shareholder bearing the joint anf several liability in the case of abusement of the independent status of the company and the limied liability of the shareholder.(2) the shareholder should bear the joint and several liability of repayment of the registration capital in the case of the other shareholders's did not pay the non-currency capital that they should pay.(3)the initiator of the joint stock limited compay should bear the joint and several liability of repayment the regiatration capital when some initiator did not pay the capital that they should pay.(4) the initiator of the joint stock limited compay should bear the joint and several liability to the expenses and debts and repay the capital when the cpmpany fail to be set up.(5) the shareholder of one-person compay should bear the joint and several liability to the company's debt when he could not prove that the property of the company is independent to the sharehloder's property. But due to the brief regulation and the small scope of the application, there are much difficulties in the judicial practices.The foreign laws about the joint and several liabiblity born by the shareholders has been comparatively analysised in this article. The doctrine of Piecing the corporate veil of common law, the Durehgriff of German law and the Disregard of the Corporate Fiction or Corporate Personality of Japanese law all have the elements of system of bearing the joint and several liability by the sharesholders. The legislation and judicial rules that established by the doctrines could be references of the judicial practice and the improvement of the company law of our country. But due to the differences of the legal cultures, there are different theory basis and systems on the constructure of the relative system of the joint and several liability of the shareholder which need to be distinguished in the theory.This article analysised the forms of liability born by the shareholders of company, which included the limited liability, the independent liability and the joint and several liability, the point of view has been addressed as follow: (1) In the merit of the ccompany's system, the linited liability and independent liabiliy are fixed on as the normal liability of the sharesholder which impressed the basis charasteristic of the company law. On the other hand , the joint and several liability is fixed on as the complementary liability of the shareholder, which impress the equity idea was given attentioned in the legislation of the company law.(2) The forms of the joint and several liability could be either the joint between the shareholder and the company or the joint of shareholders and the initiators. The scope of the joint could be either the joint under the situation of limied liablity or the joint beyond the extention of the registration capital. The nature of the joint and several liability could be either joint of refund or joint of reimbursement.(3) The emphasis of the improvement of the joint and several liability of the shareholder should focus on the further improvement of the application conditin and scope. The irregal situations of the shareholder that fit the application condition and scope should be adopted to the system of the joint and several liability.