The Research On The Protection Of Creditors' Benefits Under The Subscribed Capital System

The company capital system,as a pillar system,serves the objectives of the company and the functions,together with the corporate governance system.It charges with the protection of the interests of creditors since it first appeared.The original statutory capital system before the new company law reform,which establish credit in capital,tried to make restrain the flexible and changeable market economy with fixed and rigid standards.It does not serve the intention of protecting the interests of the creditors,and also caused harmful limitations to the company's independent management and corporative investment venture.The reform of the subscribed capital system recognized the trend of the time.Compared to the original statutory capital system,it pays full respect to the independent business right of major investors in their markets,and it makes the shiftof 'capital credit' to 'assets credit' come true.Compared with statutory capital system,the subscribed capital systemcan support more systematic advantages to stimulate the market's economic vitality and enhance the flexibility of the market.In short,the subscribed capital system has its institutional strengths and rationality.In details,the reform abolished the restrict of minimum amount of registered capital and capital paid in restricted,lowered the threshold of the establishment of company,eased market access regulation and so on.It strengthens the shareholders' autonomy,shows full respect to their free operations,therefore satisfy the shareholders with more autonomy rights.The shareholders have the right to set the minimum amount of contribution;decide the proportion of investment for the first time;determine the specific plans of investment as well as the investment period in the articles of association when the company establishes.However,as the paid capital system of creditor protection function is failing,without effective legislative systems and improved supporting mechanism,the original mechanism that protects the interests of the creditors will depend on the statutory capital system which is set up by the impact and this may lead to imbalance in the interests of shareholders and creditors,as well as unfair market transactions,and may finally cause great detriment to the interests of creditors.As the core concept of the old system in the company law,protecting the interests of the creditors has always been an important mission to the capital system.It will also be subjected to a high degree of concern of all parties in the subscribed capital system.Due to the lack of supporting measures in the current law of our country and the protective situation of the interests of creditors,the risk of protection has been gradually revealed,we must put forward scientific and reasonable solutions to lower these risks.Therefore,the introduction of this paper shows the modified content of the company capital system reform.By demonstrating a case,we show that potential risks in protecting the interests of creditors may exist after subscribing the reform;In the first part,according to the historical background and specific path of capital system reform in the world,explore the era background of the corporation capital system reform of our country,and through the analysis and comparison between statutory capital system?authorized capital system and the subscribed capital system,to determine the nature of the subscribed capital system;In the second part,according to the contrast of before and after the amendment of the corporation law of two kinds of capital system,starting from capital credit and assets credit,the paper analyses the lack of the original statutory capital system to the creditor benefit protection,and discusses on the rationality of subscribed capital system;In the third part,the risks in the protection of creditors' interests under subscribed capital system are successively listed out,mainly consist of the imperfect current law of our country and lack of the supporting measures.The law is imperfect mainly because of the defective capital contribution,the registered capital credit deficiencies,the fiduciary duty of director and the liability to the third party as the lack of a few;Supporting measures is imperfect mainly because of the system of disregard of corporate personality,creditors' right protection mechanism and credit mechanism imperfect corporate system.The fourth part put forward specific solutions,through the potential risk of perfecting legislation and relevant supporting measures to follow up on the protection of the interests of creditors.First,perfect defective legislation of shareholders' defective contribution.It mainly concludes recognizing shareholders' contribution obligations explicitly,defining the concept and the scope of defective contribution,specifying the law regard with capital flights,establishing the accelerated maturity system of shareholders' contribution,empowering the creditors the request right of investment payment,establishing rebuttal burden of proof rules for defective contributions;Second,perfect legislation of the fiduciary duty of director and directors'liabilities for the third person,by clearing fiduciary duties of directors for the creditors,as well as,improving the specifications of the directors' liabilities for the third person;Third,the perfection of the system of disregard of corporate personality.It mainly concludes the function orientation of the system of disregard of corporate personality,clearing the judicial application of space of the system of disregard of corporate personality,and specifying the applicable conditions and specific standardsthe of the system of disregard of corporate personality;Last,the perfection of company creditors' rights safeguard mechanism and the credit evaluation mechanism.It involves in implementing the mandatory registration system of company information,establishment of the corporation's independent mechanisms to disclose company information,establishment of enterprise credit information publicity system,and establishment of the corporate annual report publicity system and so on.