A Debate On The Reform Of Legal Capital Systemin China Based On The Solvency Testing System

At present, the company act has formed three kinds of relatively independent company capital systems through long-term practice, they are the legal capital system, authorized capital system and compromise capital system.Because of the differences in politics, economy, culture and so on, three kinds of company capital system are applicable to different countries, playing a role in standardize company establishment, management, transfer, cancellation and other functions.The three systems are mutually evolving, and all fields are having heated discussion on which is better. Now the forms of Chinese company capital is the legal capital system. Because of the limitations of the legal capital system itself, it results in the protection of "company capital" for the creditors may not be effective.With the operation of the company, the company’s capital has changed substantially, and it’s net value may have been less than the minimum amount of capital or in deficit.If only regard the certification of company capital which the companies submitted as the transaction credit reference,it may be too pale and even misleading. Because this company can only determine financial situation of capital when they set up the company, but to the assets of the company after operation the dynamic standard is hardly use a static index to measure.Even it can be measured by the time point, for a month or even the whole year the company will not have a rational expectations, which the limitations of the legal capital system is particularly.As the very few studies about how to introduce the solvency test system to the legal capital system. Solvency test system at present is not existing in China Company law. But look at the foreign legislation is not too difficult to find that more and more countries began to use this system,just like The European Commission proposed in2001to use the solvency test system of the most states of the United States and New Zealand in company law to prevent improper distribution to shareholders property act.The financial accounting standards board of England and Holland Corporate Law Department also mentioned in their reports that uesing the solvency test system and bankruptcy delay system to soften the mandatory of determining capital system. As can be seen, solvency test system has received more and more attention from all walks of life,it’s a breakthrough in protecting the interests of creditors.prominent.many research works focus on Reforming of the legal capital system have attracted increasing attention by the academic world. The focus is mainly on four points:first,the protection of creditors, Second, the relationship between capital and credit; third, reform of capital system; fourth, the rationality of the three principles of capital. This text starts from the first angle, emphasize from the point of view of creditor protection, to provide protection for the creditors, preventing their benefits from the illegal transfer of shareholders and directors. this system is the solvency test system.The system throughout the whole process of asset transfer,both the prior defense measures, the regulatory measures and the measures of remedies. it is sufficient to set up a systematic and comprehensive barrier for the proctection of the creditors’interests.Though the study on the protection of the interests of creditors related, such as piercing the corporate veil, bankruptcy law delay related research system, information disclosure system is widely researched, the introduction of the solvency test system related foreign application experience of company law is relatively small, this is also the novelty in this text This idea is, first of all, there is an introduction on the two types of systems, including the meaning, relevant literature review, function, characteristics and its development at home and abroad, in order to have a macro grasp of the two systems. Secondly, based on the related theories, the further exploration of the defect of legal capital system itself, together with the relevant application of solvency test system abroad in company law, and find the kind of system can largely overcome the legal capital system is not sufficient for this function, carries on the analysis to the feasibility of introducing.In this section,we will also discuss the liability of directors. Because objectively speaking, introducing the solvency test system to the company law, essentially increased the responsibilities of directors and executives. Because they need to guarantee that may affect the company’s solvency during their business activities, and the creditors must be responsible to the creditors for illegal transferring of the company’s property or according to the error of judgment which made company lack of solvency. Then, as a part of the introduction of the solvency test system, the liability of directors is required further discussion. Thirdly, combined with the specific application mode abroad, to explore a path which suitable for the reformation of Chinese capital system of company law.During the research process of solvency test system,we will also talk about the problems encountered,and find the solution of these problems, in order to make the research comprehensive and practical. Finally, it is the conclusion of the research, through it, as the little research on it I hope to draw more attention to the way of introduction of solvency test system in the reform of the legal capital system,it is one of the purpose of this thesisIn the aspect of research methods and results, this research based on learning the experience of foreign country,and related data such as:Provisions on solvency test system of Foreign Company law;the reform of legal capital system about introduction of the Solvency test system. After all, the solvency test system can effective make up for the legal capital system defect which can only use Static standard to measure dynamic changes.Scaning the development of related system in both domestic and overseas, there are many complete rules related to the Solvency testing system, and the main is when the director is about to transfer the property, there must be a premise which the company still has the solvency with this transfer.Through the application of this principle, it can make up for the lack Of the legal capital system in the assessment of the company’s solvency, and avoid the company operators transfer the company’s assets illegally. Through the introduction of Solvency test, it will gradually replace the statutory capital system, and strive to promote the development of SMEs based on the protection of the interests of creditors, and active the market while ensure the market stably, efficiently and orderly.Considering the difference between domestic and foreign, we can draw inspiration from the reformation of the capital system in China,they reduced to are the following four points:first, make clear the range. That can be through the solvency test system in the following reasons.For example, the distribution of dividends; capital, capital, corporate merger; purchase of its shares; foreign debt guarantees, etc., are available through the solvency test system, require the company assets, responsible for at a certain proportion to the board, and to provide the corresponding state and provide adequate solvency guarantee for these behavior. Second, the content of obligation. That is when the company needs through the agreement, must have the solvency of surety for the company. The Surety included the capital must be adapt to the scale of the enterprise, and strictly in accordance with the relevant legal procedures. Third, clear the period of the solvency test system. Not only is to make the test when the company has solvency, also can learn from New Zealand’s approach, the deadline was extended to make the report within one year after the series of acts, guarantee the company still has the solvency, which is due to the accounting system in the full responsibility system and other factors to consider, make the solvency test results more objective reference. Fourth, a clear violation of the consequences. When the director violates the above relevant obligations, so that companies in the transfer of funds at the same time, can not guarantee the solvency of the company’s assets, illegal transfer should be punished. Through these four points effective reaction in the future company law, I believe that many problems caused by the legal capital system, will be eased, the development of the company law of our country will enter a new height.