On The Claim Of The Company's Creditors For Shareholders Who Have Not Fulfilled Their Obligations

After 2013 company capital system reform,the requirement for ‘minimum amount of registered capital' was replaced by the paid subscription system.The new system lifted government intervention in proportion of capital contribution and payment deadline,which significantly lowered investment threshold for potential shareholders and capital holders.However,a favorable investment environment may increase market's concern over shareholders' ability to abuse the company's independent legal personality and limited liability,delay funding or breach investment obligations,thereby increasing the risk of creditors.Supreme People's Court has anticipated certain issues as new system was introduced and tried to put a rule in place to ease market's concern.According to para 2,article 13 of the "Supreme People's Court on Several Issues concerning the application of the" company law "provisions of People's Republic of China(three)"(hereinafter referred to as the "company law judicial interpretation three"),when company became insolvent,with regard to the debts balance,creditors have the right to request against those shareholders who had not fully fulfilled their obligation of capital contribution to repay debts within the amount of their subscribed capital and any interests incurred.This rule encountered a series of problems in judicial practice and aroused debates over the theory underlying since the revised Company Law 2014 was put into effect.The controversial parts from theoretical aspect were mainly around issues such as the legal basis of the direct claim right of creditor's rights,rights of elements,contents,nature of shareholder responsibility,relevant parties in the proceedings,court of jurisdiction,allocation of the burden of proof,subscription period effect on creditors request.This article gives a discussion of the root of the controversy and tries to analyse those longstanding theories that would be affected along the application of the new rule established by the Supreme People's court:Introduction: topic background and research significance,literature review,research object and research ideas,the article special instructions.Chapter 1: Shareholders 'contribution is a composite obligation of both contractual and statutory.The obligation of shareholders' contribution elicits the right of the company to request the shareholders who have not made the obligation to make a contribution.According to the company's agreement,constitution,independent personality and corporate As the logical starting point,so as to explore the company's obligations to the shareholders of the principle of the right to claim,for the latter creditors over the company to exercise the right to claim the right to deal with shareholders.Chapter 2: Based on the conflict between the shareholders and the interests of the company,the creditor's direct claim is triggered,and the origin and the legal basis of the creditor's claim are analyzed from the viewpoints of different theories.Chapter 3: the creditor's right to direct the application of the judicial application of the process,the creditor to add the right to claim the right of law,the composition and content of the rights of the shareholders bear the nature of the liability to speed up the claim,the parties to the proceedings to determine,The jurisdiction of the court,the distribution of the burden of proof,the expiration of the funding period is not how to identify the responsibility there are more vague areas.This paper analyzes the liability of litigants,regional jurisdiction and proof,and tries to discuss the issues related to the right of first instance and the supplementary liability of the shareholders and the shareholders as a common defendant.The conclusion part summarizes the problem and puts forward feasible suggestions on the legal loopholes and analysis in judicial practice.Chapter 4: Based on the theory of subrogation,this paper makes a comparative analysis of the constituent elements of creditor 's direct claim.The theory of subrogation applies to the company law,relax the "debt of maturity",combined with the case of the judicial practice of the differences were analyzed,that the creditors did not fulfill or not fully fulfill the obligations of shareholders to pay supplementary liability,not By the capital contribution agreement,the company's articles of association in the agreed period of the restrictions,the application of capital responsibility to accelerate the expiration of the theory.While the need to relax the "debt of money" and "debtor lazy exercise of the right" two elements.Another focus of this chapter is to analyze the content of the creditor's direct claim: the calculation of the scope of compensation,for the shareholders to contribute to the accelerated maturity of the shareholders within the agreed period of interest can not be against the claims of external creditors.In addition,the shareholders bear the relationship between the supplementary liability and the right of first-instance defense,and affirmed the rationality of the right of the shareholders to vote.