Research Of Promoters' Joint And Several Liability System In China

The promoters are those who sign the articles of association while subscribing for the capital contributions or shares and performing the duties in the process of establishing the company,including the shareholders who establish the limited liability company.The application of joint liability is in line with the pursuit of the value of efficiency in Corporations Law and it is in accordance with the balance of interests of the promoters,creditors and the company itself.The promoters' joint liability is the requirement of capital enrichment liability,which is a kind of legal means set up by Corporations Law to realize the determination of the company's capital.Keeping an eye on the history of the promoters' joint liability system in China tells us that system innovation is inseparably related to social needs.And the research on the foreign promoters' joint liability system reveals that the trend of institutional change is also closely related to the social needs.And application of promoters' joint liability system in all countries are paying full attention on the balance of the interests of the company itself,promoters and creditors,which is a typical way of Commercial Law.In the framework of Corporations Law and its judicial interpretations,the current rules of promoters' joint liability system should be summarized as follows:If the promoter violated the investment obligation,the company and its shareholders have right to request the promoter to make a supplementary of capital and other promoters shall take joint and several liability for that.And the creditor can request the promoter to contribute capital and the interests which should be included by the debt that the company can't pay off.And other promoters should take joint and several liability,after that they have the right to recover the debt to the promoter who failed to perform the duty of contribution.The third judicial interpretation's integration of promoters' joint liability system makes the system's application needn't care about companies' type and the specific circumstances of the promoters' defaults.Which has caused some doubts in theory as well as its application.In the new environment of the revised Corporations Law in 2014,it is necessary for the creditor to have the right to ask promoter to take joint and several liability.The reasonableness can be found in the basic theory of Corporations Law as well.Because the boundaries of limited liability companies and joint stock companies are becoming more and more ambiguous,Unifying the promoters' joint liability system applies to the two kinds of companies is also the embodiment of equal application of law.If "the part of debt corporate can't be paid" placed in the context of the company's bankruptcy liquidation,will result in promoters' joint liability system loses its value of application.Capital subscription system makes "not fulfill or not fully fulfill the obligation of contribution" have a new meaning.Even if the duty of contribution has not expired,the promoters shall take joint and several liability when the corporate debts can't be paid off.