Research On Shareholders' Capital Withdrawal And Their Legalliability In China

It is the basis of shareholders' rights of shareholders to fulfill the obligation of capital contribution,is also the obligation of shareholders,But in our country,the situation that the shareholders evade the obligation of capital contribution through the withdrawal of capital has occurred repeatedly.For this,the legislation of our country stipulates the civil,administrative and criminal responsibility of withdrawing capital contribution.Although these three kinds of legal liabilities play a very important role in the management of the withdrawal of capital,but there are still some legislative puzzled has not yet been resolved.For example,In terms of civil liability,the civil liability system is also not complete(there is no provision for imputation of civil liability and the status of parties in litigation),the type of civil liability is not comprehensive,distribution of burden of proof is not scientific,there are doubts about whether to bear civil liability to other shareholders,lack of operability and other issues of shareholder qualification.In terms of administrative respons-ibility,There are also some problems,such as the law provisions is non uniform,the administrative penalty is not clear,the lack of effective legal supervision.In addition,after the reform of the company's capital system,The criminal liability of shareholders withdrawing capital was be abolished,also triggered a debate on the abolition of the crime.Through the analysis of these legislative confusion,the author thinks that the improvement of these problems should be carried out from three aspects.First,Perfect civil liability legislation.Including make clear the target of the 28 and the 83 paragraph of article second of the company law,redistribute the burden of proof of the plaintiff and the defendant,perfecting the rule of expulsion of shareholders of withdrawing capital and perfecting the civil liability system of withdrawing capital contribution;Second,Improvement of administrative legislation and supervisionis.Including uniform the applicable subject of administrative sanction,clear penalties standards for false information publicity,improve the rules of administrative inspection,perfect business registration procedures;Third,The assumption of the crime of Embezzlement.Capital crime has been abolished,It is difficult to get the support of legislation to re classify it as a crime,However,in most cases,the withdrawal of capital has actually constituted the crime of embezzlement in the post,It can be considered as the scope of the crime of embezzlement in the post,On the one hand,For the company that the registered capital of the company does not need to be paid,apply the crime of embezzlement in the post,On the other hand,For the company that the registered capital of the company need to be paid in registration,When at the same time constitute capital crime and embezzlemen tin the post,In the crime of withdrawing capital and the crime of embezzlement in the post,choose the heavy penalty.