The Procedure Of Adding Defective Shareholders As Parties Of Execution

In practice,the behavior of shareholders' capital contribution flaw is not uncommon,and the forms are diverse.Especially after the reform of company capital system,the capital subscription system provides a strong shelter for the shareholders' defective capital contribution behavior.Under this circumstance,the company often becomes a “empty shell”.If the principle of relative force of the subjective of the executive force is still strictly adhered to,the creditor's winning judgment will also become a blank sheet due to the lack of assets of the company.Even if the creditor separately sues the shareholders,the realization of creditor's rights will also become uncertain due to the influence of various factors in litigation and enforcement.This situation will inevitably lead to doubts about the effect of public power to resolve disputes,which will lead people to seek disorderly private relief.On the other hand,in recent years,the shareholders who do not contribution have been added as executive parties,demanding responsibility for liquidation,vigorously promoted the implementation of the courts at all levels and achieved good social effects.The implementation of this proposition is related to two dimensions of the entity specification and the procedure specification,which can be decomposed into the identification of the defective capital contribution,the responsibility form of the capital contribution flaw,and the provisions of the procedure of adding the defective capital contribution shareholder as parties of execution.The three basic elements,which are the key to determining the specific rules for the implementation of the additional parties of execution.Based on the civil norms and procedural norms of these three elements,the author explores the difficulties in its application in practice.On the basis of clarifying the specific civil law and procedural law theory,the author put forward detailed recommendations for optimizing the procedure.Based on this,the body of this paper is composed of four parts:?.The evolution of the provisions of the procedure of adding shareholders as parties of execution.This part introduces the process of the evolution of the legal origin of the capital contribution responsibility: from the "Company Law" to the "Company Law Interpretation(?)",the responsibility form changes from the general limited liability to the secondary limited liability;from the "Implementation Regulations(Trial)","Interpretation of the Civil Procedure Law" to "Changes and Adds Provisions",the procedural rules changed from subrogation to change or adds the parties of execution;the "Company Law" reform led to the transformation of the capital system from the capital payment system to the capital subscription system.The concept of capital credit changes to the concept of asset credit,and the criteria for the identification of effective capital contribution should also be changed accordingly.This part of the paper is the basis for the development described later,so this paper will take the specific provisions of the legal norms as the entry point for the study.?.The actual dilemma of the implement of the procedure of adding shareholders who have failed to fulfill or to fully fulfill the obligation of capital contribute as parties.The practical dilemma applied by the system directly stems from the contradictions between the legal sources.Specifically,it contains three levels: First,the legal basis is very controversial,including dispute between the trial and the enforcement of adding parties,between the subrogation of the creditor's rights and the procedure of adding parties based on capital contribution responsibility,and dispute between the scope of the expansion of the executive force and the expansion of the res judicata.And the dispute between the general legal limited liability form and the secondary limited liability form.Second,there are many contradictions between rules.Third,the procedural operation is very difficult.It refers to the existence of many imperfections in the specific procedural rules imposed by the judicial interpretation of the execution of adding defective shareholders.For example,there are problems in the application procedure,the review procedure,the referee procedure and the relief procedure.?.The basic legal principles for the procedure of adding defective shareholders.This part is based on the analysis of the legal sources and analysis of the dilemma of application,to clarify the basic legal basis for the procedure of adding defective shareholders.Specifically,in the procedural legal theory,firstly demonstrate the theoretical basis of the expansion of the enforcement force,and further propose that the subjective scope expansion of execution should be logically consistent with the subjective scope expansion of the res judicata.That is,the type of expansion of the subjective scope of execution should be basically the same as the three types of expansion of the res judicata,but based on the difference in the value objectives of the execution procedure and the trial,the corresponding adjustments are made on the basis of the three types of expansion.In the civil jurisprudence,the responsibility form of defective capital contribution should be returned to the basic position of the general limited liability of the legislation of the company law,and the secondary responsibility form should be criticized from the complementary logical paradox and the contradictory situation in application.Finally,from the maintenance of the order of the civil law and the pursuit of the efficiency value of the procedural law,the authors discuss the institutional value of this procedure.?.Suggestions for the procedures of adding defective shareholders.This part of the discussion is the end of the topic,the embodiment of the value of the article.Based on the above-mentioned realistic dilemmas and basic theories,this part proposes perfect suggestions for the specific problems and defects of the application procedures,review procedures,referee procedures and relief procedures.