The Research On The Remedies For Creditors To Companies Whose Contribution Is Undue

After the reform of the company's registered capital system,it becomes easier to set up the company.And the autonomy of the company and the shareholders is also improved.But the issue of the creditor's interests protection has been highlighted.The first subscription case in Shanghai reflects some sharp problems after the reform.If the time limit of capital contribution stipulated in the articles of association is not due while the company's external debt is already due,is it right to ask shareholders to prepay their capital contribution since the existing capital is not enough to pay off the debt? After the abolition of the minimum registered capital,what changes have been made to the legal effect of the company's act of reduction of capital compared with the past? If a shareholder transfers his or her equity to a third person within the period of capital contribution,who will be the principal subject of the continued contribution obligation?Despite lacking specific legal basis,the court in this case sentenced the shareholders to pay their unpaid capital contribution,only in accordance with the principles of the Company Law and the concept of the protection of creditors.This approach contradicted the concept and provisions of the new Company Law.The interests of the creditor,the company autonomy,the freedom of the Articles of Association and the interests of the shareholders' investment period are equally protected by law,and the judicial judgment should be more rational and objective.Modern companies are comprised of various parties like shareholders,directors,employees,creditors,etc. Different corporate participants have different interests.In the company's practice,the interests of the various subjects would have a certain degree of conflict,which requires the law to balance and protect the legitimate interests of the various subjects.Despite lacking specific legal basis,the court in this case sentenced the shareholders to pay their unpaid shares,only in accordance with the principles of the Company Law and the concept of the protection of creditors.This approach contradicted the concept and provisions of the new Company Law.The interests of the creditor,the company autonomy,the freedom of the Articles of Association and the interests of the shareholders' investment period are equally protected by law,and the judicial judgment should be more rational and objective.Modern companies are comprised of various parties like shareholders,directors,employees,creditors,etc.Different corporate participants have different interests.In the company's practice,the interests of the various subjects would have a certain degree of conflict,which requires the law to balance and protect the legitimate interests of the various subjects.This article is divided into three chapters.The first chapter begins with the first subscription case in Shanghai,pointing out that the judgment of this case lacks rationality in the background of the reform of capital system.The paper then puts forward the thinking approach of judicial adjudication should be the idea of balance of interests in company law.The uniqueness and superiority of corporate system is largely based on the company's independent personality and shareholders' limited liability.So the law must protect the interests of companies,shareholders and creditors in a balanced manner.The article then analyze the first focus of dispute of the case,which is,how to determine the effectiveness of corporate capital reduction without notifying the creditors in advance.This paper holds that the creditors' consent is only the element of confrontation and does not affect the reduction of capital to come into force.The two other focuses of dispute of the case are more complex and require a larger space,so they are put in the next two chapters.The second chapter discusses several ways to remedy creditors of companies whose capital are still in the state of subscription.It is also an academic problem full of theoretical controversy.The theoretical and practical viewpoints are summed up mainly including acceleration of maturity,disregarding of corporate personality and the application of bankruptcy procedure.After pointing out the defects of the first two theories,this paper expounds the rationality and legality of the application of bankruptcy procedure.The third chapter discusses the last focus of dispute of the case: the subject of responsibility after the transfer of undue equity.Some scholars,based on the theory of defective equity,propose that the transferer shall bear the responsibility independently or jointly with the transferee.This article holds that there is an essential difference between the undue capital stock and the defective stock,and the liability clause of defective share transfer cannot be applied.So,based on the strict explanation of law,this paper holds that the transferee shareholder shall bear the responsibility independently.