Research On Accelerating Expiration Of Shareholder's Capital Contribution Obligation

On December 28,2013,the amendment to the Company Law was officially passed.The company's capital system has undergone tremendous changes,and the company's registered capital has been changed from the paid-in system to the subscription system.The "Company Law" has abolished the mandatory requirement of paying a full-time capital contribution.Shareholders can freely agree on the capital contribution period.Although this has alleviated the financial pressure of shareholders and stimulated economic vitality,it also led to conflicts between shareholders' interests and the protection of creditors' interests.When the company is unable to pay off the debts due and the shareholder's capital contribution period has not expired,can the shareholders be required to fulfill the capital contribution obligation in advance to preserve the interests of the creditors? In this regard,both the theoretical and practical circles are quite controversial.From the perspective of empirical research,this paper conducts research and writing on the above-mentioned problems.In addition to the introduction,the full text is divided into five parts:The first part systematically retrieves the judicial cases related to the subject of this paper,and sorts out the disputes in the practice about whether to apply the shareholders' contribution obligation to accelerate the expiration system,including five aspects: the scope of application of the shareholders' contribution obligation to accelerate the expiration,and the shareholders' validity on the term of the capital contribution,the applicable path of the shareholders' contribution obligation to accelerate the expiration,and the litigation procedure for the shareholders' contribution obligation to expedite the expiration,and a brief description of the specific issues and practical points involved in each part.The second part identifies the scope of application of the investor's contribution obligation to expedite the expiration.The scope of application of the investor's capital contribution obligation to expedite the expiration shall not be limited to the case of bankruptcy and dissolution of the company.Compared with the acceleration of bankruptcy and the acceleration of dissolution,the direct application of the accelerated expiration system has the advantages of low cost and high profit,which is conducive to safeguarding the interests of creditors and ensuring the security of transactions.Compared with the former,it is more in line with the expectations of creditors.The third part identifies the effectiveness of the shareholders' agreement on the time limitfor funding.First of all,based on the liberal spirit of the "Company Law",we can not easily deny the legal effect of the shareholders on the term of the capital contribution;secondly,according to the principle of relativity of the debt,the agreement on the time limit for the investment belongs to the internal agreement between the shareholders,only internal Effectiveness cannot be binding on creditors.The fourth part identifies the applicable path of accelerating the maturity of shareholders' investment obligations.First,the main path for the application of the shareholder's contribution obligation to expedite the expiration lies in the expansion of the interpretation of the provisions of Article 13(2)of the Provisions of the Supreme People's Court on Several Issues Relating to Application of Company Law of the People's Republic of China(III).It should be considered that “unfulfilled or not fully fulfilled the capital contribution obligation”includes the fact that the shareholders have not expired.In the case of fulfilling the capital contribution,it should be considered that the “cannot pay off the debts due” must meet the preconditions for the company's enforcement and still unable to pay off,that is,the shareholders are entitled to the right of first-instance defense;secondly,in addition to the expansion explanation,the third interpretation of the “Provisions of the Supreme People's Court on Several Issues Relating to Application of Company Law of the People's Republic of China(III)” In addition to the provisions of the second paragraph,you can also learn from the legislative experience of the company law,contract law and enforcement law to seek other reasonable ways to accelerate the application of the maturity system.The fifth part identifies the procedural issue of accelerating the maturity of shareholders' contributions.First,when there are several unfunded shareholders,the creditor can arbitrarily request individual or all shareholders who have not yet made the capital to perform the capital contribution obligation in advance.When the original shareholder transfers the equity to others without fully funding,the creditor should first transfer the equity.The shareholder claims the right and requires the original shareholder to assume the general guarantee responsibility.Secondly,if the creditor requests the shareholders who have not fulfilled the capital contribution obligation to pay the capital contribution in advance,the company and the unfunded shareholder may be listed as the co-defendant;further,the creditor requests from the court.If a shareholder who fails to fulfill the capital contribution obligation pays the capital contribution in advance,special geographical jurisdiction shall not be applied.Instead,the general principle of determining the geographical jurisdiction shall be adopted in the CivilProcedure Law.Finally,it is recommended to use the method of inversion of the burden of proof to prove that the shareholder has performed he capital contribution obligation to avoid unfair results for creditors.