| Under the existing company law, the shareholders just take limited liabilities. Therefore, only the shareholders fully take the duties of capital contribution can the company ensure its capital security. However, at present, the phenomenon of withdrawing capital contributions from company by shareholders is serious.This action not only violates the principle of keeping company's capital safety, but also does harm to company, other shareholders, and creditors of the company. Company law only stipulates the administrative and criminal liability of the withdrawing shareholder, not stipulating the civil liability of the withdrawing shareholder. Due to lack of intact system and mature related theory, it is difficult to investigate and affix legal liability of the withdrawing shareholder. Fortunately, the Third Judicial Interpretation to how to apply the Company Law of the Public Country of China by the Superior Court of China has been enforced since January 16th,2011, which describes the manifestation of withdrawing capital and improves the regulations about the civil liability of the withdrawing shareholder. However, these regulations still need to be perfected for their flaws. Therefore, the author hopes it is beneficial to establish a system of investigating the civil liability of the withdrawing shareholder based on the circumstances in our country and the legislation experience and judicial practice of other countries through the comparative analysis of the theories in different law systems.This article mainly contains three parts, which are foreword, main body and concluding remarks. The main body consists of four parts and the detail contents are as follows:Part one puts forward the questions about withdrawing capital contributions. The author analyses how the withdrawing shareholders take their civil liabilities to company, other honest shareholders and the creditors of the company through detail analysis on a typical case about a company suiting the withdrawing shareholders doing harms to the interests of the company.Part two is the introduction of withdrawing capital. The author gives interpretations to the concept of withdrawing capital and introduces the main methods of this action. In addition, the differences among withdrawing capital of the contribution, false capital contribution, legal reduction of the capital and shareholder's loan to the company also have been analyzed in this part.Part three is the analysis on the civil liability of the withdrawing shareholders to the company. This liability is in essence tort liability. As for how to investigate it, the author puts forward some suggestions, which are as follows:company can demand withdrawing shareholders to recover capital and return damages to company; or other honest shareholders can bring lawsuits; and if the demanded capital still cannot be recovered through the above methods, some honest shareholders can obtain the interest by taking the capital contribution duties for the withdrawing shareholder.Part four is the analysis on civil liability of the withdrawing shareholder to the honest shareholders of the company. This liability is in essence responsibility of breach of contract, for which the author gives her suggestion that limits or cancels the rights of the withdrawing shareholder in company and asks the withdrawing shareholder to return the loss and damages to company.Part five is the analysis on the civil liability of the withdrawing shareholders to the creditors of the company. This is in nature tort liability. The creditors can make use of their subrogation right to demand the withdrawing shareholder to take liability of loss recovery. This article also points out that the system of denial of corporate personality can be applied when the withdrawing shareholder greatly harms the interests of the creditors. At the same time, the author suggests that the withdrawing shareholders should be demanded to take joint liability in related regulations. |
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