Research On Identifing Withdrawing Of Capital

Prohibit withdrawal of capital is the consensus of many countries,but different countries have different standards.In consideration of the fact that the standard used is controversial,lack of operability,make the court "each hold a set of standard",can not distinguish it with the normal trade between shareholders and company,falling to “a pocket crime”.At the same time,the academia and the practical circle also respectively define the behavior characteristic of withdrawal of capital from different aspects,such as "without legal procedures","accounts inconsistent","secret".However,the above standards focus the perspective on the appearance of withdrawal of capital,and failed to outline a clear and effective criteria for recognition,andunable effectively to copy with the diverse,concealed status quo.Under the perspective of doctrine of capital maintenance,the paper decides to build the concept of withdrawal of capital and the identification criterion,to perfect the current criterion.The first chapter,first of all,presents the concept of withdrawal of capital,and horizontally compares the representative views of academia,then generalizes the lack of current concepts.At the same time,from the view of legislation evolution,the paper reviews the patterns of withdrawal of capital,and analyzes the fuzzy standards and other problems of withdrawal of capital,laying the foundation for the following discussion.In the second chapter,on the one hand,draws lessons from the four elements of criminal,the subject,the object,the subjective aspect and objective aspect,to obtain the quality on withdrawal of capital.On the other hand,compares it with false capital contribution,borrowing,reduction of capital,in order to minimize chaos in the practice.In the third chapter,the paper analyzes and clarifies the hidden capital contribution and the round-trip payment and so on,which are common in practice.Because of the lack of similar problems such as hidden capital contribution and round-trip payment,judicial cases encountered similar cases are also directly applicable to the rules and regulations of withdrawal of capital.However,it should be clear that the similar behavior which attempts to circumvent the investment does not produce the result of obligation to fulfill.The obligations of the shareholders are not completed,then need apply the doctrine of capital determination to determine the shareholdersinvestment behavior,rather than directly ignore the doctrine of capital determination,and then seek the principle of withdrawal of capital under the doctrine of capital maintenance.The fourth chapter is under the premise that strictly distinguish between the doctrine of capital determination and the doctrine of capital maintenance to construct the rules of withdrawal of capital.After the above analysis of the concept of withdrawal of capital we can see,the standard to determine withdrawal of capital is too vague,especially in 2013,after the capital system reform in the relaxation of the "access" threshold,making the previous call to use the concept of illegal possession of the property to take back the view of withdrawal of capital has gradually become active,emphasizing using the concept of illegal possession of the property taking place of capital rules.But as China's corporate law clearly stipulates that "the shareholders are not allowed to withdraw the capital",the same is the most basic and primitive rule of the corporate law of each country,but also the core of the doctrine of capital maintenance.In most countries,often in the expression that "prohibit the company to return the capital to shareholders",the expression appears in the corporation law,becaming an important part of the capital system,so far none of a country flee the rules of exclusion to the corporation law,and directly apply to the tort law.In this paper,we attempt to interpret the concept of distribution broadly,and then from the view of the distribution of the withdrawal of capital belongs to the distribution of capital,the distribution of capital is the behavior which violates the distribution process and distribution content.At the same time,this article finally explains the three kinds of modes of withdrawal of capital,which are clearly listed in Article 12 of Judicial Interpretation(3),from the perspective of distribution,and further demonstrates the rationality that the withdrawal of capital should be allocated to the illegal distribution.