| As we all known, In modern times, companies play important role in the market activity. In china, with the foundation and perfection of the market economy system, the company acts in socialist market economy is more and more important, because of this, people pay intensive attention to the company legal personality and ability. To enrich the company capital is vital to the wholesome of company legal personality. It is necessary for the investment contributed by shareholder reaches the amount of capital required by law and by articles of association. To make their capital contributions properly is shareholders' first obligation according to company law. But because of all kinds of reasons, There are so much company established and gained the license but the shareholders did not pay in full their respective subscribed capital contributions specified in the articles of association, Which not only affect Shareholder's benefit, but also affect the company and Creditor's benefit. If the law couldn't regulate these economy activities, the problems exist in the Social economy activity wouldn't be solved. It would be able to affect inevitably the socialist market economy's healthy development. Therefore, it has become an important problem which put the economic intercourse into disorder, and the credit were harmed. Considering the significance of researching the legal problem on the shareholder's investment obligation and the civil liability and the present situation of research and legislation in the field, the author chose problem as the object of his research.Based on the investigation into system and theories about the legal problem on the shareholder's investment obligation and the civil liability in china and foreign countries, applying the method of comparative research and demonstration analysis, the author probed into the problem on shareholder's investment obligation and the civil liability. This thesis about 42000 words, is composed of five parts.The first part: "nature analysis about the Shareholder's investment obligation" .Whether countries of the continental law system or Anglo-America law system, the company theories of each country are all think that shareholder's investment obligation is a kind of contract obligation. But in my opinion, the Shareholder's investment obligation is a kind of contract obligation as well as a kind of legal obligation, it seems that more reasonable to consider it as a kind of legal obligation: on the one hand, the company law has explicited regulation. That is to say, the company law has specified the responsibility of shareholder who failed to make the capital contribution; on the other hand, if the shareholder's investment obligation is a kind of contract obligation, the company would investigate shareholder's investment responsibility based on the Contract theory when shareholder violated the obligation, but it difficult to say that is reasonable according to the contract theory. (To see the text for details)The Second part: Value analysis about the shareholder's investment obligation.First, in this part, the author analyzed the close relation about shareholder's investment obligation and company capital, including there aspects, namely, the relation about shareholder's investment obligation and capital value, and the capital credit, and the capital enrichment principle. Second, the author analyzed the close relation about shareholder's investment obligation and the transaction security, which from two aspects to elaborated, i.e., from capital system and capital enrichment and from shareholder's investment obligation.The Third part: the fulfillment, the illegal shape and the recognition about the shareholder's investment obligation. In this part, the author firstly analyzed the fulfillment of shareholder's investment obligation. In order to elaborate this problem, the author analyzed the relation about the fulfillment of shareholder's investment obligation and shareholder's qualification. Then analyzed the problem from four aspects underdifferent capital system, namely, the fulfillment of investment obligation under the authorized investment obligation, under the compromised capital system and the legal capital system.Second, The author analyzed simply the main illegal shape of shareholder's investment obligation.Third, The author analyzed and discussed two kinds of illegal shape which often occurred but difficult to recognized in the actual economic activities, namely making their false capital contributions and pulling out of the capital from the investment after make their capital contributions. Beside, the author also analyzed and discussed the investment recognition of the properties and rights, which didn't specified explicitly by the law.The fourth part: the civil liability analysis about the shareholder violates the investment obligation .in this part, the author analyzed and discussed three aspects problem according to the present legislation, namely, whose rights would be infringe when the share- holder failed to make their capital contributions; the civil liability localization theory and the responsibility object of the shareholder who violate the investment obligation.The fifth part: the civil liability system's insufficiency and its perfection of shareholder who failed to make his capital contributions in china.First, the author analyzed its insufficiency from three aspects, i.e. from macroscopic angle, from microscopic Angle and from the examine assets agency angle. This part point out: Analyzed from macroscopic angle, the administrative and criminal responsibility are more heavier than civil legal responsibility of shareholder who failed to make his capital contributions, The responsibility of company of limited liability is more heavier than initiator of Co.Ltd; Analyzed from microscopic Angle, the responsibility of investor's violating contract, the damage compensation and the capital enrichment are all imperfect. Otherwise, the present company has not been able to note that control shareholder'sspecial status and treat them in the same way, which will be unfair to the young shareholder. There are some flaw about the regulation of denying the company legal personality in different way. Analyzed from intermediary agency angle, the article point out: because the people have some recognizing deviation, it cause the responsibility of examining assets person would be enlarge unceasingly, and increase the legal liability of examining assets unit with no reason, and expand the examining assets risk for certified public accountant (CPA), which have caused the profession of CPA strong repercussion and resisted the examining assets service. Therefore, the author thinks that it is important to recognize clearly the nature of examining capital agency.Base on the said, the author analyzed the problem from three aspects and proposed the suggestion on how to perfect civil responsibility system of shareholder who failed to make his contributions, i.e. from legislative stratification angle—modifying the legislative flaw of shareholder's investment responsibility; from system stratification angle—establishing the relief procedure of shareholder who failed to make his contributions; and from ideological stratification angle—pay attention to the transaction safely enough to highlight the transaction efficiency. |
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