Nature Of The Company Creditor's Right To Claim For Supplementary Compensation

Company capital is not only the prerequisite for the establishment of the company,but also the material basis for the maintaining of a company.Shareholders pay the capital is the most basic way to form company's capital,even so,in China a shareholder fails to fulfill or to fully fulfill the obligation of capital contribution is very common,which cause serious damage to the corporate creditor to realize their claims.Current academic research most focuses on the responsibility to the company and other shareholders when a shareholder fails to fulfill or fully fulfill his obligation of capital contribution but there is few research about his responsibility to the company creditors.Taking the reform of the company's capital system into account,the law is no longer strictly regulating when and how shareholders to pay the registered capital and the corresponding verification procedures are abolished.That causes shareholder fails to fulfill or fully fulfill obligation of capital obligation more often,so it is necessary to highlight the protection the rights of company creditors.Although there are some scholars try to protect corporate creditors' right through exploring "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China(3)"Article 13,paragraph 2,it aims to study their supplementary claims on the shareholders which do not fulfill or do not fully fulfill their obligations.But most scholars directly claim that the nature of the claim belongs to the subrogation,and then analysis it from elements of subrogation.I draw out the problems that arise in the application through the contradictory cases of some courts,and then make a comparative analysis of the nature of the claim.Although there are some scholars try to protect company creditors'right through exploring "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China(III)" Article 13,paragraph 2,it aims to study their supplementary claims on the shareholder which fails to fulfill or fully fulfill obligation of capital contribution.But most scholars directly claim that the nature of the claim belongs to the subrogation,and then analysis it from elements of subrogation.I try to solve this problem from a new way.I approach to the problem arising from the contradictory cases of the court,and then make a comparative analysis of the nature of the claim in the theoretical and literary understanding ways.The main body of this paper is mainly composed of four parts.In the first part,I start from several contradictory jurisprudence of the court and try to point out the problems may occur during pursuing the supplementary obligation of the shareholder that fails to fulfill or to fully fulfill the obligation of capital contribution.And points out the reason cause this fact is because there is no uniformity in the doctrine of the nature of the company creditors' right to claim for supplement compensation.In the second part,I make a comparative analysis on the three theories of the nature of the company creditor's right to claim for supplementary compensation on the theoretical level,and draw the conclusion that the right to subrogation can explain the nature of the claims of the company's creditors more rationally.In the third part,I compare the three doctrines about the nature of the company creditor's right to claim for supplementary compensation in literal understanding level,and draw out that the right to subrogation is more in line with the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China(?)" on the nature of the company creditor's right to claim for supplementary compensation.In the fourth part,after analyzing the malpractice of the"no storage" rule,I recommend to restore the "storage" rule which replies to the traditional right to subrogation.And then I put forward some suggestions on perfecting the "storage" rule.