The Research On Restriction Of Lacking Capital Contribution

Providing the funding is not only the primary legal obligation, but also the priceto obtain the corresponding rights of shareholders. We can not establish a realcompany capital system if there is no strict shareholder-financed system. With regardto financing in general flaws, the Company Law formulates that the defectivefinanced shareholder shall be responsible for the creditor, bear liability to thoseshareholders who abide the contract for the breach of covenant and the company andits shareholders should bear administrative responsibility and so on. But the currentlegislation and judicial interpretation has not yet made clear and specific provisionson the impact of the defective financed shareholder’s rights, except that the Judicialinterpretation three of Company Law made some principle provisions which limit tothe right to distribute the surplus property, the preemptive right and profitdistribution.The issue of limiting the rights of defective funded shareholder isbecoming an increasingly important task in the field of company law and prominenttopics in the theoretical and practical circles. The disputes of the flaws instockholders’ equity funding have emerged in actual operation due to the vague andmissing of our current legal provisions. But the limitation of rights of the defectivecapital contribution of shareholders lacks the legal basis in the trial practice, leadingto the court was not make the same judgment and dispute of defective shareholderscan not be solved.Although the existing theoretical research have ranged, most research hasfocused on the liability for the breach of the defective capital contribution ofshareholders, the specifically theory for the defective capital contribution ofshareholders’ rights restriction is not much. The defective funding shareholders doesnot have the complete rights even if defective capital contribution doesn’t affect theirqualification. It is reasonable to restrict the rights of the defective fundingshareholders. Limit the defective capital contribution of shareholders rights shallabide the following four cardinal principles: the equality of rights and obligations, thelegitimate procedure, capital majority decision and the elimination of voting right. The defective capital contribution of shareholders rights limits are basically measuredby the proportion of equity and non equity ratio and the right of shareholder should berestricted relating to the actual situation of the defective capital contribution which isgenerally in accordance with their payment in capital ratio, such as voting rights.Meanwhile the non equity ratio should not be restricted, such as the right to know.The practical operation of limiting the defective funded shareholders rights shouldcomply with the applicable legal requirements and procedures. There are there kind ofmethods to limiting the defective capital contribution of shareholders rights in thepremise of the company are not to be dissolved: payment of capital, equity transferand the forced expulsion. Forced expulsion belongs to passive expulsion ofshareholders,"Company law judicial interpretation (three)" only constructs theframework of the conditions and procedures to remove shareholder’s qualification,thus the flaw shareholder expulsion system also needs to explore the further theoryand practice.