Research On Issues About Civil Liability Of Defect Of Shareholder's Contribution

In the system of company, shareholder's contribution is the most important thing for the shareholder, company and creditor. For the purpose of the shareholder, shareholder's contribution is not only the material basis for them who take limited liability for the company, but also the grounds on which the shareholder has the equity security in respect of company. For the purpose of the cooperation, the shareholder's contribution is an indispensable component for the company to obtain independent personality and the material basis for the operation and development thereof. For the purpose of the company's creditors, shareholder's contribution is a general warranty concerning cooperation's debt, and at the same time, the material and credit grounds for creditors to achieve the rights thereof. As a result, whether the shareholder contributes based on relevant laws and the cooperation's constitute or not, it will have a significant influence on the others shareholders, the company itself and the interest of the creditors as a third party.However, it has turned into a serious problem for a long distance in our nation since the shareholder fails to contribute correctly, thereby the transaction security has been threatened significantly and the establishment relating to credit system for the whole society has been destroyed seriously. The amended company law, which focuses on the stiff stipulations in the former one in respect of the component in the shareholder's contribution defect and the civil juristic consequences thereof and the condition that the company fails to be operated pursuant to the relevant laws and regulations, has been revised in the greater part concerning the system for shareholder's contribution, thereby makes substantial progress, provided that the stipulations are a little simple and fail to be performed practically. Therefore, it's still worthy to take more consideration into the theoretical discussion relating to the way to construct a system for shareholder's contribution.It can be divided into three chapters.Chapter OneGeneral statements on shareholder's contribution defect This chapter gives a brief introduction in the following aspects, such as the conception of shareholder's contribution, the characteristics thereof, the diversity of its behavior and the relationship between the subjects of liabilities. The author holds the belief that, where the shareholder fails to render performance of contribution subject to the stipulations in the contributive agreement or the company's constitution after it is established, it shall include no contribution at all, no sufficient contribution, no appropriate contribution and no timely contribution. Where the laws and regulations stipulate definitely the shareholder's contributive action, if the shareholder's contribution fails to comply with these requirements thereof, the contribution defect shall prevail. Additionally, the characteristics of contribution defect, its relative behavior and the party who assumes the liability have also been discussed in this chapter. In the Section about potent ional party for liability, how to identify the potent ional party for liability shall be discussed mainly. The duty for shareholder to contribution is the base and premise to result from contribution defect, if the shareholder's duty to contribution correctly is broken down. The contribution defect has such characteristic as the complexity and implication of the potent ional party for liability and the plural for object of liability.Chapter TwoIdentification of civil liability relating to shareholder's contribution defectThis chapter gives an interpretation on the following aspects, the jurisprudential basis to ascertain where the civil liability lies concerning shareholder's contribution defect, the characteristics of civil liability and the principles of culpability thereof. The legal nature of the civil liability of shareholder's contribution defect varies with the nature of the potent ional party. The author believes that, where the shareholder contributes defectively, the nature of liability is deemed the breach of the contract for the purpose of the shareholders who invest sufficiently and tort for the purpose of the creditors of the company. If the company is deemed a net of contracts and shareholders is the one of parties of the net of contracts, the relationship between the company and the shareholders become contract relationship. if the shareholder fails to contribute sufficiently according to the contract, he must burden the liability for breach of contract. For the creditor of the company, the nature of liability for shareholder's contribution defect to them can deemed as tort to credit, which the third party exercises separately or malicious collaboration intending for disrupting the realization of creditors and making the creditor suffer damages thereof, according to the judicial interpretation and relevant cases in the judicial practice, the clear and definite stipulations can not be found in our laws and regulations. What's more, the strict liability shall apply relevant to the principles of culpability for the shareholder's contribution defect whether or not there existly the default of shareholders.Chapter ThreeThe civil liability assumed by the shareholderThis chapter offers an illustration on the following aspects, the stipulations relevant to the mode and scope of civil liability for the shareholder's contribution defect governed by the foreign counties and our nation, the defect and legislation suggestions on our company law and proposes the corresponding suggestions by comparing the differences in legislation for shareholder's contribution defect between our nation and foreign counties. The chapter first discuss on the civil liability of shareholder's contribution defect for other shareholders. The author thinks that the civil liability of contribution defects of shareholder is liability for breach contract. There not exist relevant stipulations in our company law how to bearing the civil liability, but it can be applied the corresponding civil liability of nonperformance for duties. Then the chapter emphasize on discussing the liability of capital sufficiency and unchanged for the shareholder of company which is the legal civil liability joint bearing by promoter in order to ensure each other the performance of contribution and guarantee the consistence between the registered capital and paid-in capital and can not be relieved through contract by parties. The liability of capital investing sufficienctly and unchanged, as the special civil liability, reflects some important legal values such as justice, benefit, order and so on. The author analysis the system of insufficiency of the contribution nowadays such that how to bear the civil liability for money or goods contribution insufficiently can not been stipulated in our laws and regulations; how to restrict the stock equity which the shareholder contribute with defect fail to be stipulated in our laws and regulations. The author propose some corresponding suggestions such that making the company direct as the liability party in favor of supervising the contribution of shareholders; introduce the system of loss of right in our company law, which the shareholder who has contributed sufficiently have the right to interpellae the shareholders who failed to contribute sufficiently to pay within a period. If the shareholder who fails to contribution overdue, he shall loss the right of subscriber of shares and the shares shall be floated separately.