| In 2013,the company law established the subscribed capital system.The contents of the amendment mainly include the cancellation of the minimum registered capital limit,and the shareholders only need to subscribe for the capital contribution.For the protection of creditors,it brings a difficult judicial application: In the case of non-bankruptcy,can the referee accelerate the shareholder's capital contribution responsibilities that have not expired? In this regard,there is a great theoretical dispute.There are many solutions proposed by the theoretical and practical circles,mainly supporting the accelerated expiry of the capital contributions of non-term shareholders in non-bankruptcy occasions,the disapproval of corporate personality due to significant inadequacy of the company's capital,and the implementation of changes in execution procedures,bankruptcy and other routes.For this reason,the author clarifies the legitimacy and legitimacy of the above major paths and chooses one path that is currently the best and the only one that is applicable.The creditor applies for bankruptcy proceedings and forces the uninitiated shareholders to voluntarily fulfill their capital contribution obligations.Therefore,this article is divided into four chapters to be discussed.The Chapter 1 mainly questions the legitimacy of the "accelerated expiry system." Regarding whether it is possible to fulfill the capital contribution obligations of non-term shareholders in the non-bankruptcy state,this chapter tries to analyze and demonstrate the first case of accelerating the expiration of the “Attending Case Transfer of Xiangtong Company v.Gongyue Company” and combines similar 229 cases(see Appendix II for details)were analyzed by big data in an attempt to explain the issue of shareholder capital contribution and creditor protection under the subscribed capital system.In Chapter 2,the chapter mainly questions the legitimacy of the path of “denial of corporate personality based on a significant shortage of corporate capital”.This chapter mainly states that the company's personality disclaimer system is difficult to apply from the aspects of “conspicuous capital inadequacy” and its criteria for judging “necessity of company personality”,the relationship between them,and the combination of existing judicial practices(see Appendix 2 for details).In Chapter 3,the chapter mainly questions the legitimacy of the "change of execution object requires shareholders to invest in advance under the execution procedure." For the path of changing the execution object,the author mainly clarified the inappropriateness of the path of the change execution object from the connotation of “change the execution object requires shareholders to invest in advance” and the defects of the path and the combination of judicial practice(see Appendix III for details).In Chapter 4,the author proposes the path that the author approves,which is the path that the creditor directly applies for bankruptcy procedures and pushes the shareholders to fulfill their capital contribution obligations in advance(hereinafter referred to as "the bankruptcy retreat route").The author clarifies the legality and legitimacy of the application of the bankruptcy procedure to the shareholders' voluntary early fulfillment of the capital contribution obligation path from the intension of the bankruptcy retreat route,the function and value of the application for bankruptcy procedures,and the preconditions for the court's inquiry.That is,on the one hand,the law clearly stipulates the system of bankruptcy proceedings that breaks through the capital contribution period.On the other hand,the court can reasonably use the inquiry procedure to actively ask whether the shareholders who have not paid up the period are willing to give up the term benefits and fulfill their capital contribution obligations in advance.Therefore,compared to the three paths described previously,the path of bankruptcy proceedings is the only applicable path. |
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