The Civil Liability Of Shareholders' Capital Flight Is Research

A corporation is a company taking capital as credit, in which, shareholder capital contribution is the primary source of its capital formalization, which is also the most fundamental duty of shareholders. But in reality, the phenomenon that dishonest shareholder violates capital contribution responsibility, that is to say, withdrawal of capital, occurs frequently.The behavior of withdrawal of capital violates capital keeping principle, which not only destroys effective operation and business reputation of the corporation, but also damages the interest of the corporation and other shareholders. More important, it can do harm to the creditor who makes a deal with the corporation for trusting in the corporation credit appearance, which as a return, affects the security of social trade. A very important cause why these cases occur so frequently is the defects of corporation law system currently in effect in our country, which obstacle the formalization of capital contribution supervision and restriction mechanism among shareholders. As a result, it is difficult for infringed company, other law-abiding shareholders, company's creditors and other interested person to request damage remedy by applying civil lawsuit.The 201st article in new"Corporation Law"of China has stipulated the legal liability for the behavior of withdrawal of capital. The 159th article in"Criminal Law"has stipulated faking and withdrawing capital crime. However, which cannot be denied is that, in new"Corporation Law"there still exists a phenomenon out of balance in the aspect of liability system of withdrawal of capital, which is,"do much work on criminal and administration, and neglect civil". And, there still lacks responsibility belonging and remedy approach. Therefore, this thesis demonstrate civil liability of shareholder who withdraw capital as a view; it discusses the nature and manner of responsibility and remedy approach of withdrawal of capital. Meanwhile, it integrates relative law, regulations and judicial interpretations and submits corresponding law strategy and proposal.The first chapter of this thesis is a summary of the behavior of withdrawal of capital. It makes an explanation of the concept of withdrawal of capital, introduces the main methods of withdrawal of capital, and has a discussion of the questions which should be pay attention to judge it. The second chapter till the fourth chapter is the core part of the thesis, which has a discussion of civil liability that the shareholder who withdrawing capital should undertake. Also, it proposes corresponding manners of liability and possible remedy approach mainly from the nature of liability. The second chapter has a discussion of the liability for breaching of contracts that the withdrawer should undertake to the sufficient contributed shareholders, and proposes legislative proposal by which shareholders can suit directly and restrict or exempt the right of the shareholder who has withdrawn capital. In the third chapter, it proposes that, to the corporation, withdrawal of capital charges duo-properties of breaching of contract and tort. Then it suggests that the corporation can take the direct repaying right to the withdrawal of capital shareholder, compensation for damages right and shareholder delegate suit as remedy approach. In the fourth chapter, it is regarded that the withdrawer's civil liability to company creditors should be tort responsibility, and proposes that it can pursue creditor's right of subrogation and veto legal personality as remedy approach. In the fifth chapter, it aims at problems of Corporation Law currently in effect in our country, proposes concrete suggestion to improve legislation. First, construct entire civil liability system, define liability for breach of contract of the shareholder who withdraw capital to the sufficient contributed shareholders, refund the balance responsibility of the corporation and purse direct liability for compensation to company's creditors. If withdrawing capital causes other lose to the victims, it should undertake compensation for damage. Second, establish strict responsibility principle to civil responsibility to the withdrawer. Third, broaden remedy approach to relevant interest body including stipulate procedure of removing shareholder's right, improve shareholder delegate suit system, define right of subrogation of the company's creditors, apply legal personality veto system on condition, stipulate right to claim damage, etc.