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A Research On The Principle Of Capital Maintenance And The Protection Of Creditor's Interests

Posted on:2019-12-12Degree:MasterType:Thesis
Country:ChinaCandidate:H Y HouFull Text:PDF
GTID:2416330545955430Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The creditor protection function of capital maintenance principle is an old and gradually reborn topic in the company law system.Since the reform of the capital system in the People's Republic of China in 2013,the review and reconstruction of this principle have aroused widespread attention.This paper argues that china should insist on and perfect the principle of capital maintenance,and on the basis of this,this paper will go deeply into the subject on 'principle of capital maintenance and the protection of creditor's interests.When giving basic respect to the principle of capital maintenance as 'convention',it is necessary to realize fully that its expression is interpreted without real understanding,that its connotation is not precise,that its concept should be refined from the essence.As the product of the law transplantation,in the perspective of comparative law,we find that in China there are some misunderstandings about the principle of capital maintenance and the relevant legal systems are not match,which means that it is necessary to study the relevant legislation,judicial practice and theoretical viewpoints in other countries and then to compared with the present situation of capital maintenance and the predicament capital maintenance faces in China.In this way,we can develop and perfect the capital maintenance principle in China more effectively.This paper probes into the essence and connotation of capital maintenance principle in the perspective of creditor protection,and in order to find out the challenge and predicament of the principle of capital maintenance in China,this paper,from the perspective of comparative law,examines the status of legislation and judicial practice of capital maintenance principle in other countries such as Germany,Japan,Britain and the United States,especially the specific rules of shareholder's capital contribution,restrictions on profit distribution,restrictions on capital reduction and restrictions on share repurchase,etc.Therefore,the paper puts forward the path of reform of the principle of capital maintenance,so as to implement the essential purpose:to protect the interests of creditors.Apart from the parts of introduction and epilogue,the main body of this paper is divided into four chapters.Chapter 1 'Interpretation of the Essence of Capital Maintenance Principle',do properly textual research on the essence and connotation of the principle of capital maintenance in China from two aspects:the difference between the two kinds of capital maintenance view(relative maintenance and absolute maintenance)and the object of capital maintenance(including the definition and scope of object).Then correct the misinterpretation of the concept,for prompting the concept of the principle of capital maintenance to return to the nature:protection the legitimate interests of creditors,and for avoiding the ambiguity and misunderstanding of concepts becoming an obstacle to the application of capital maintenance principles.Chapter 2 'Review Capital Maintenance Principle from the Perspective of Comparative',investigate in detail the situation of legislation and application in judicial practice of the principle of capital maintenance and the specific rules in its category by the way to compare Continental Law system(represented by Germany and Japan)and Common Law system(represented by Britain and the United States).Investigate the alternative approaches(solvency test)developed by the United States.Then based on the mentioned above,find the guidance material for China's capital maintenance principle reform from the advanced system and experience.Chapter 3 'Review Situation and Predicament of Capital Maintenance Principle in China',analyze the Chinese legislation of the rule group under the current effective capital maintenance principle,review the capital maintenance principle in China integrally and comprehensively combining the academic viewpoint and judicial practice.Then compare and analyze the related system of other countries to find the dilemma of the capital maintenance principle and the impact of the solvency test on the capital maintenance principle in the reform era.Chapter 4 'Reform Path of Capital Maintenance Principle:From the Perspective of Protecting Creditors',based on the detailed analysis and argumentation of the foregoing chapters,put forward some suggestions for the improvement and perfection of the principle of capital maintenance in China from three aspects:the director's responsibility mechanism to the company creditor,The preliminary reference of the solvency Test,the lawsuit mechanism based on the principle of capital maintenance,so as to better realize the essential purpose:the protection of the creditor's interests.
Keywords/Search Tags:Principle of capital maintenance, Creditor's interest protection, Prohibition to return of capital illegally
PDF Full Text Request
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