A Research On Credit As Capital

As a topic of Company Law, there are two different perspectives about credit as capital, but scholars believe that the other property cannot compare with the credit in the business function. From legislation, it is expressly prohibited in our national legislation. However, it was conditionally allowed in several international treaties, local laws and regulations, policies, national legislation or was implicitly allowed in the establishment, restructuring, mergers. Therefore, for effective management, it should be included, not be away from outside in the legal system. This fully shows it is necessary for the credit used as capital to further research.We were based on the legal capital system's mode of the company's capital credit when we used to study the problem of credit, and so the system was designed by thought. Thus we emphasize the Security functions of the claims of creditors in the transaction about the shareholders'registered capital. The interests of creditors as the center of the system designed, in practice, it did not change the protection of creditor's claims, but increased transaction costs and reduced the efficiency of the economy. The value of the regression in personal selfishness of private law, the capital system of company was changed from statutory capital system to eclectic capital system and asset credit was proposed, the value concept of company law from insisting the priority on security to considering the priority on efficiency, the primary function of the registered capital of company was business, not guarantee. The guarantee of creditor's claim was the existing assets of the company, the claims relying on asset was the company property, assets credit was the conversion of claims. In the new concept, we should gradually relax in the form of shareholders capital, when we reconstruct the company's system, particularly as credit, it should be the capital form as regards saving transaction costs and improving efficiency in the company. However, the scholars have a different understanding about the form of credit capital, which leads to the difficult points. As we think whether the credit capital can become the legitimate form of funding from the theoretical basis of credit and the eligibility credit capital, combine with the eclectic capital system, the new concepts credit capital and the domestic and international cases about the credit legislation, we believe that credit can be used for funding with sufficient reasons.In practice, if we allowed the credit as a legitimate capital, we must anticipate all the disadvantages in the investment process, and regulate in the design of the system. Specifically, as the specificity of value,it is impossible to count the value to quantify with the manner of work time or market competition, so,we should resolve the question that may arise according to its own characteristics for serving the economic construction. First, from the assessing factors, about the impact of the quantitative credit, we need to definite in detail and synthetically consider external factors, such as the collection in the form of credit, market rules, rating agencies and the assessment of the capabilities of intelligence, and internal factors, such as credit subject's own character, capital, capacity, collateral security and the continuity of credit value etc. Second, the existing form of credit is the information state in the transfer of credit, therefore, there should be constraints in the amount of its value, the ratio of capital and the time of investment in the contract; the procedures should be stipulated strictly in the verification, the audit in the general meeting of shareholders and the disclosure of shareholders'information. Third, according to the characteristics of their personal attachment, we use the appropriate type of share on the equity, it is restricted appropriately in the transfer of shares. Finally, the credit subjects have the obligation of the keeping and increasing the value of credit assets e during the credit as capital, making the credit assets in good operating condition. After the bankruptcy, the funders of the credit should bear the liability within the scope of the registered capital when their capital is untruth or unfulfilled, the other shareholders should bear joint liability in the scope of credit funded. At the same time we should prevent the fraudulent transfer in the redemption of the shares and the repurchase of the shares, if there is the fraudulent transfer of shares and it damages the rights of others, the credit subject should bear the liability.Although there are many controversies in the legal issues study about the credit as capital, no one can deny the fact that the credit contains value in the business, meanwhile the property value of credit in the economics is proved. Therefore, the law should give a positive response, so that it plays an important role in economic life.