Study On Legal Issues Of Shareholders' Defective Capital Contribution

In modern times,companies play an important role in the market. The company, as a special form of enterprises, is increasingly appreciated by investors. With the establishment and perfection of socialist market economy system in China, the company shows its importance. People pay more and more attention to the company's legal personality and ability. The sufficiency of corporate capital is vital to the company legal personality. Shareholders'obligation of capital contribution is the most fundamental obligation according to company law. To the shareholders, the capital contribution of shareholders is, on one side, the material foundation to bear limited responsibility; on the other side, it's the basis of the shareholders to enjoy rights of the company. To the corporation, the capital contribution of shareholders is not only a necessity to obtain independent legal personality, but also the material foundation of operation and development. To the creditors of the corporation, the capital contribution of shareholders is the guarantee of company's debts, and is the material and credit foundation to realize the creditor's rights.However, various forms of fake contribution and withdrawal of contribution are not rare happenings. In cases of defective capital contribution, shall shareholders still remain obliged to the debts of company or does such occurrence have any effects on the status of legal personality of corporation, on the status of shareholder and on the rights held by shareholders? How to balance the conflicting interests between company, its shareholders and its creditors? There is no answer according to our company law. As a result, there are different judgments by courts, and it is not keeping with justice of the law. So it is necessary to research relevant legal issues of shareholders capital contribution. This thesis consists of four parts. Methods of comparison, analysis and induction are adopted in this study for reaching a specific analysis on defective capital contribution of shareholders.Chapter one is concerned of general overview of defective capital contribution. This chapter first introduces the concept, characteristics and the form of the defective capital contribution. The author holds a generalized conception of capital contribution including delay in capital contribution, insufficient capital contribution, inappropriate capital contribution, false capital contribution and taking out the capital contribution. Second, the chapter compares new company law with the old one, and analyzes the new issues of capital contribution according to newly amended company law.Chapter two is concerned of status of defective shareholders. This chapter firstly analyzes the general standard of confirming the qualification of a shareholder. Second, analyzes the relationship between capital contribution and acquisition of shareholders'qualification, and the author agrees that defective shareholders can acquire the qualification of shareholders. Then, the author analyzes that the rights of defective shareholders should be limited according to their real capital. Chapter three is concerned of legal issues on transfer of defective capital contribution. This chapter first analyzes the validity of a contract of transfer the defective capital contribution, and the author agrees that is an effective contract. Second, based on various views of the responsibility between assignor and assignee, the author agrees that the assignor and assignee should take joint responsibility together, except the assignee is in good faith.Chapter four is concerned of civil responsibility of shareholder with defective capital contribution. This chapter analyzes first discusses the civil responsibility of defective shareholders from three aspects. The author considers that the defective shareholder bears responsibility of breaching contract towards other shareholders and the corporation according to laws and regulations concerned, and also bears tort responsibility to the creditor. Second, other shareholders bear capital-refilling responsibility towards the corporation. Meanwhile, the first director and supervisor should bear joint responsibility if they violate their legal obligations. Lastly, the author introduces some remedies to capital contribution such as procedure of losing shareholders'rights, shareholder derivative litigation, piercing the corporate veil and judicial dissolution.