On Our Shareholders Of Third Party Claims Funded Guarantee System

With creditor's rights whose property's character is constantly strengthened, creditor's rights as a shareholder contribution to the company also in gradually eased in the civil law countries where execute capital legal system. In order to ensure the certainty of capital and protect the interests of the creditor, the shareholder,who contribute credior' right to the company as a third party, must be liable to guarantee the realization of the credior' right. In the Chinese "Company Law" (2005),which though not stipulates clearly that creditor's rights can as shareholders of the company make conrribution to the company in the form of crditor' right, but also there is no ban.The Interpretation of Company Law(2009)'s drafts, which put forward first time in the contributive relevant creditor shareholders guarantee system. Shareholders as a third party guaranteeing creditor's rights to the comany, which was resulted in widespread comment. But there are no provisions about capital contribution with creditor's rights of a third party in 2011 official promulgation of Company Law.Even so, the researches of guarantee system still have very important significance. The author explains three Chinese company law draft version from the perspective of proposed method, through using other civil law system countries' relevant provisions on guaranty system and trying to discuss the creditor's as a third party aguarantee system of capital contribution, and combined with some of the current debt-to-equity specific provision, to enrich the design. This thesis is mainly around three sections, the characteristics of Credit Subscribed Capital, the basis theory about shareholders' guarantee system of Credit Subscribed Capital and the design about shareholders' guarantee system of Credit Subscribed Capital. The author introduces in the form of creditor's rights from the worldwide basic present situation, then analyzes the three characteristics of Credit Subscribed Capital, in particular the feasibility of Credit Subscribed Capital, the right of claim to the creditor's right, the characterization of creditor's rights and non-openness of creditor'rights, that determines disadvantages of Credit Subscribed Capital. That means:On the one side give investors with more investment choices;on the other side, we should ensure the capital's definiteness and authenticity. For that the shareholder must provide guaranty of Credit Subscribed Capital in order to the realize the creditor's rights,that protect the interest of creditor. The author analyses some civil law system countries where shareholders guarantee Credit Subscribed Capital System, summarizes two levels of content about the shareholders guarantee Credit Subscribed Capital System. One is the guarantee of defect creditor's rights and the guarantee system of realize creditor's right. Finally the author analyses some shareholders guarantee Credit Subscribed Capital System which has been put forwarded in China, one of the defect is excessive principle, which practicing in the company regulations is too difficult;the other is no clear distinguish of the two kinds of different guarantee form, or clear and definite which content of guarantee, the author contraposes the existing system, combining with Germany, Italy and other countries concerned regulation, separately from the guarantee of defect creditor's rights and guarantee of realize creditor's rights system, discusses the construction of Chinese shareholders as a third party guarantee Credit Subscribed Capital System.