On Outward Civil Liability Of The Capital Contributions Flaw Of Shareholders

The interest game between shareholders and company creditors is a very important relationship that needs to be dealt with in company legislation. In a certain sense, it is the starting point of the Company Law. Stemming from shareholders' contributions, the company capital is not only the material base of the operation of the company and important basis for external credit, but also important guarantee for creditors to realize their creditor's rights. The Company Law strictly prohibits shareholders' flaw contributions activity, for it not only infringes upon the interests of the company, but also the interests of company creditors. However, in the real business deal and social life, the phenomenon of flaw shareholders' flaw contributions, such as false capital contribution, flight of capital contribution, etc, are quite common. The act of shareholders'flaw contributions severely harms the legitimate interests of the creditors, and causes the imbalance of interests between shareholders and company creditors. The phenomenon of shareholders' flaw contributions demands urgent containment and the interests of the company creditors require prompt protection. In judicial practice, the hearing the case of creditors' request for shareholders' civil liability on the grounds of shareholders' flaw contributions is relatively difficult, the theory is deficient and the relevant legal basis is insufficient. In dealing with such cases, the court judges according to different standards and results. The main reason of this problem lies in that provisions on external civil liability of shareholders with the act of flaw contributions is rather simple, the present Company Law and the practical feasibility is weak. Many scholars merely do research aimed at the civil liability of the shareholders with flaw contributions to the company as well as other shareholders. But seldom make monographic study on civil liability of shareholders' flaw contributions from the angle of protecting the interests of the company creditors.This paper is divided into four parts:Part One studies the definition of external civil liability on shareholders' flaw contributions. First, starting with the definition of the concept and the type of shareholders'flaw contributions is the starting point of analyzing and solving problems. Second, to define the external civil liability of shareholders' flaw contributions defines the concept of the external civil liability of shareholders' flaw contributions, and analyzes the legitimacy basis for the creditors' civil liability bearded by the shareholders with flaw contributions. Finally, it discusses the historical evolution of the external civil liability system on shareholders' flaw contributions, so as to help us have a clear understanding and grasp of the status quo.Part Two studies the nature and the constitutive requirements of external civil liability on shareholders'flaw contributions. under the circumstances of the existence of corporate personality, it analyzes the theoretical basis of the external civil liability on shareholders'flaw contributions. Combing the analysis of foreign theories, namely, trust fund theory, formal fraud theory, factual fraud theory, subscription agreement theory, legal liability theory, with domestic theories, namely, subrogation theory, tort theory, co-opetition of tort theory and subrogation theory, it analyzes the advantages and disadvantages of various theories. Finally, this paper agrees with the theory of infringement on creditor's right in tort theory and holds that shareholders'flaw contributions is an act of infringing upon creditors'legitimate creditor's right. Based upon the tort theory, it defines four constitutive requirements of the external civil liability on shareholders'flaw contributions.Part Three studies the defects of the external civil liability system on shareholders' flaw contributions. Through the analysis of the status quo, it holds that the major defects of existing external civil liability system on shareholders'flaw contributions include: insufficient theoretical basis and lower normative level, unreasonable civil liability system on shareholders' flight of capital contribution, irrationalized sequence between the shareholders of flaw contributions and the company's liquidation of debts, indefinite responsibility assignment between shareholders of flaw contributions and relevant subjects and incomplete issues in judicial proceedings.Part Four studies the perfection of the external civil liability system on shareholders' flaw contributions. Through the analysis of defects of the existing system, it proposes legislative advice on external civil liability on shareholders' flaw contributions, which includes:to perfect theory and improve normative level, to reconstruct the mode of bearing responsibilities of shareholders'flight of capital contribution, to rationalize the sequence between shareholders of flaw contributions and company's liquidation of debts, to define the responsibility assignment between shareholders of flaw contributions and relevant subjects and to improve issues in judicial proceedings, etc.