A Comparative Study On Legal Liability Of Shareholders' Defective Capital Contribution

The capital, not only the vital and the basic material basis of the corporate, but also the external exchange as well as the vital guarantee for corporate's floating of a loan and creditor's realization of its rights, is a prime and important constituent of corporate property. Shareholders' capital contribution is an important segment of the assets of the corporate as a jurisdical person as well as the precondition and foundation for a corporate to be a separate legal entity with civil capacity for action and civil liability ability.However, Shareholder's defective capital contribution is considerably universal in practice, which would cause varying degrees of damage to the benefits of the corporate, corporate bond holders, other shareholders that have fully paid, and the top ranking officers. The Corporate Law improved on the legal responsibility of stockholders because of defective capital contribution , thought the provision is still curt and less operability. We have researched on correlated institution construction in several countries including Germany, Japan, American, Britain and done feasibility analysis in China,both of which will be meaningful for us on how to set up a rational legal responsibility system.Four chapters compose this paper:Chapter One: Summary Of Shareholders' Defective Capital Contribution. This chapter begins with the analysis of the concept of shareholders' defective capital contribution, and analyse several popular views, concluding my own concept of the stockholder's defective capital contribution ,That is departing from law or capital contribution claim that is stated by articles of association, there is some flaws on the property used for contributing or the rights itself, or the flaw consist in the financial contribution behavior, which leads to the behavior that doesn't completely obey the state of the law or articles of association.Judging from the commonly represent of shareholders' defective contribution, there are two categories, not enough capital and flight capital contribution. Shareholders' defective contribution would cause varying degrees of damages to the benefits of corporate, other appropriate performance stockholders, corporate bond holders, and the top ranking officer.Chapter Two: The Legal Responsibility Of Shareholders For The Defective Capital Contribution. The legal responsibility of shareholders for the defective capital contribution should be comprehensive, including civil liability, criminal responsibility, administrative responsibility. Here we emphasis on the civil liability. Shareholders for The defective capital contribution hold the responsibility of fulfilling the balance and guaranteeing, which means the property of liability for breach of contract as well as the property of liability for tort; to other stockholders who have appropriately performanced the duty, go on performing, disbursing the penalty, redressing the damage and so on;to the corporate bonds holders, taking the liability for satisfaction.Chapter Three: Correlated System On The Legal Responsibility For Shareholders' Defective Capital Contribution In Other Countries And The Feasibility Analysis In China. Introduce and analyse some in Germany, the right-losing procedure, promoters liability affording, interest punishment, stockholders' filling responsibility definitudion and liability for compensation, emphasizing the duty of contribution of the predecessor shareholder who has been removed because of the nonfeasance on financial contribution, and endue the corporation the right to make over the right and so on ; the perfect rule of capital in Japan; In USA, emphasize the authenticity of capital stock, establish the good faith obligation of the stockholders, and underline the creditor's rights characteristic of stockholder's duty of contribution, and the appropriateness of valuable consideration in illiquid contributive mode during the stock issue and so on. With the emphasis of the establishment of right-losing procedure and perfecting the capital system in China, presenting author's comparing them with the analogy provisions, and dissecting the rationality and feasibility.Chapter Four: Point Out The Defects Of Our Corporate Law, and present detailed idea of construction of the consequence for breach of the contribution obligation. There are two defects, non-balance of the liability system and non-completion of the contents. There are four principles such as shareholders equality, bond holders protection, the whole capital principle and the civil liability priority. And There are four advice, for example, completing the precaution system.