Study On The Transfer Of Defective Capital Contribution

The behaviors of shareholders violating capital contribution duties always occur in our country. Many conflicts result from the transfer of defective capital contribution. The questions whether the defective capital contribution can be transferred and how to decide the validity of contract and how to assume the civil liabilities after the transfer are still the main concern among judicial practices because of lack of law rules and academic research. Many researches pay more attention to the civil liabilities of the shareholders who violate capital contribution duties and little to the transfer of defective capital contribution. After a thorough review on theories, cases and legislations home and abroad, this essay tries to analyze and resolve these difficult questions.The following is the main content of this essay:Chapter one mainly introduces the basic theories of this essay. This part first defines and classifies the defective capital contribution. Second, the part point out that defective capital contribution is one of the reason of the creation of defective shares and analyze the characteristics of defective shares caused by defective capital contribution. A contract is the general form of transfer of defective contribution and the contract has its own features. Chapter two primarily analyzes the validity of the defective capital contribution transfer contract. This part first introduces the different viewpoints from academic circle and judicial practices. The next part analyzes the flaws of the viewpoints on theoretical basis and the reason of the point this essay supports. The violators can be shareholders and still have legal rights to transfer their shares. To maintain trading order and balance the interest of the parties in company law, the contract should be hold effect.Chapter three discusses the subject of the civil liabilities resulting from defective capital contribution after the transfer of the defective shares. Academic field and judicial practice have lots of controversy over this question. Foreign company law also have different rules. Based on the analysis of the controversy and the review of company law abroad, with liability object as a standard, this part points out that the violators should take civil liabilities toward the company, other shareholders and the creditors and analyze the subject of liability after the transfer of shares one by one.