A Study On The Secondary Liability Of Shareholders Who Do Not Contribute

The secondary liability of shareholders who have failed to fulfill or to fully fulfill the obligation of capital contribution means that the non-funded shareholder should assume the secondary liability to the creditor within the scope of its non-contribution when the company can not pay off its due debts.The secondary liability of non-funded shareholders is a type of statutory,supplementary,limited and internal unrecoverable liability.It is different from joint and several liability.The background of the secondary liability of non-funded shareholders is the introduction of the capital system paid in installments.In the earlier,the discussion of its theoretical basis is mostly conducted from the perspective of contract law.The most representative of these is the creditor's right of subrogation theory.But,this theory may ignore the particularity of the secondary liability of the non-funded shareholder in terms of corporate law.Especially,the implementation of the subscription system has made the applicable conditions of subrogation doesn't match to the system.From the perspective of corporate law,this article argues that the theoretical basis of the system stems from the requirement of "capital security function",as well as the methodology of the special benefits measurement.At the same time,the implementation of the subscription system also brought a series of problems to the application of the system of secondary liability for non-funded shareholders,which is mainly summarized in the following four aspects:the first,That shareholders can freely agree on the deadline of capital contribution results in changes in the applicable object of the system.In other words,should the concept of "falling to fulfill or to fully fulfill the capital contribution" not only refers to the nonperformance after due date,but also includes these not yet due?The second,because of the cancellation of the capital verification procedure,so how should we to place the onus of proof between the shareholders and the creditors and how to design the basis for the review of the capital contribution?The third,how to define the extend of "unable to pay off"?At present,academia usually adopts the standard of"insufficient property after the compulsory enforcement executed by the trial or arbitration",but the standard is too mechanized to meet the needs of the development of the system.Therefore,in order to protect the legitimate rights and interests of creditors well and to play their function and value well of the secondary liability of non-funded shareholders,It need to be reinterpreted and institutionalized.First of all,from the perspective of "Internal Convention Can't Against The Third Parties" and "The Statutory Obligation Theory",this article argue that he concept of "falling to fulfill or to fully fulfill the capital contribution" not only refers to the nonperformance after due date,but also includes these not yet due.So it will be more satisfied with the development of the subscription capital system and the needs of creditor protection.Secondly,the article argues that the onus of proof should be reversed.It means that shareholders should provide evidence that they have fulfilled their contribution obligations,and if not,they should bear the corresponding risk of losing the lawsuit.Thirdly,it can be emphasized that the concept of "unable to pay off" should be determined by "the combined standards".On the one hand,at the start-up stage of the procedure,the "inner reasonable suspicion" based on the creditor's "ability" can be used to take into account the differences between the parties and the court in collecting the evidence of company's solvency.On the other hand,considering the diversification and complexity of the company's assets,the "cash flow" standard and the "convenience property" standard should be adopted in the judicial determination procedure.Finally,shareholders who contribute capital in advance can not claim the "period benefit" from creditors and companies.At the same time,when defining the scope of the secondary liability of non-contributing shareholders,we should compare the portion of the shareholders that has not yet been fully paid out with the portion of the creditors whose claims have not been fully satisfied and take the part which is smaller.Also,the article is suggested that within the scope of the shareholder's "limited liability",the secondary liability can not be assumed as "one-off responsibility",so as to avoid the shareholder from evade the remaining contribution obligation,so that the system can be equally applied to all the creditors of the company.