Research Of Capital Adequacy Liability System Under Fully Subscribed Capital System

Capital adequacy liability system has existed in Chinese corporate law system for a long time,thereafter,with further amendments to laws and judicial interpretations,this liability system has been improved and played an important role in protecting the interests of creditors.With the advance of the reform of company subscribed system,fully subscribed capital system has been established in "Company Law" in 2013.The guarantee means of capital adequacy has changed from prevention before the event to monitoring during the event and discipline after the event,from supervision by public power to autonomy by promotors themselves.This change reduced the difficulty of establishment of company,increased the flexibility of investment.Meanwhile,the paying liability for breach and capital adequacy liability of the promotors played a more important role in protecting the interests of creditors.It's no doubt that the shareholder who didn't perform duties of making capital contributions well assumes paying liability for breach.As to the promotor who seemed make no obvious fault assumes capital adequacy liability,there are always different voices.Especially about the method and range of capital adequacy liability,legislation precedent of each countries varies.Objectively,the accomplishment of reform of fully subscribed capital system increases the capital adequacy liability for no-fault shareholders,brings a series of problems.To take advantage of the reform of fully subscribed capital system,it is necessary to further improve capitaladequacy liability.The first part of article combs the basic content,legal principle and legislative embodiment of capital adequacy liability.The properties of capital adequacy responsibility can be summarized as statutory no-fault joint and several guarantee liability,including the fulfill liability of difference,the guarantee liability of subscription and making capital contributions.The capital adequacy liability can effectively reduce,under limited liability system,the risk caused of the different benefit goals of the shareholders and the external creditors reflecting the perfect combination of justice,order and efficiency.Although theoretically,there are always doubtful voice about the rationality of capital adequacy liability,but its existence value can not be deny,and a new balance among the promotors,shareholders,creditors,company and creditors should be seek,based on the new changes of the legal system.Taking a simple "one size fits all" approach,compared to advanced foreign legislation precedent,Chinese capital adequacy liability has still room for improvement.The second part is the study of the reform of Chinese subscribed capital system.Our registered capital system has experienced three stages:paid-up capital system,paid by instalment system and fully subscribed capital system.Although being modified by several times,the property of statutory capital system has been remained.Fully subscribed capital system has reduced the excessive administrative intervention,adapted further to demand of market economy,facilitated the employment of capital and reflected fully the capital value of company.However,the reform has also brought new problems such as inflated capital of company.Part three describes the impact of fully subscribed capital system to capital adequacy liability.Flexibility of fully subscribed capital system has brought new risks at the same time.The no-fault promotors,especially the minority of them will take enormous risks,have become the most innocent victims in the reform.The reform have brought new concept of capital and restraint of paying,brought new doubt about the rationality of Chinese-style capital adequacy liability.The impacts of the acceleration the maturity of outstanding contributions,the reduction of share capital,and the transfer of shares to the capital adequacy liability are also the problemshad to face.Trying to resolve the heavier capital adequacy capital liability under fully subscribed capital system,a number of solutions are proposed in the fourth part,including the improvement of capital adequacy capital liability itself,and the establishment of supporting measures.Refered to common law and legislation precedent of Japan,make some limited breakthrough in the form of capital adequacy liability,the promotors who assume capital adequacy liability may be given equity option under certain conditions.Moreover,we can establish the information disclosure system of paid-up capital and the quota system of company's profit distribution,to further reduce the risk of capital adequacy liability.Final solution,probably depends on the establishment of a social credit system.