Study On The Supplementary Responsibility Of The Transferor For The Post-transfer Capital Contribution

At the end of 2013,the Standing Committee of the National People’s Congress made a number of adjustments to the Company Law,including the reform of the system of company capital.The current Company Law not only cancelled the restrictions on the minimum registered capital,the amount of the initial capital contribution,and the time for capital contribution,but also cancelled the requirements of statutory capital verification.The changes of these regulations make the registration system of registered capital in our country turn from paid-in system into full-subscription system,which greatly encourages the enthusiasm of market investors,stimulates entrepreneurial innovation vigor,effectively reduces the barriers to company entry.At the same time,however,it should also be noted that due to the lack of credit system in modern society and inadequate market supervision,the corresponding measures to protect the interests of creditors are still not perfect.Full-subscription system makes shareholders invested more convenient at the same time,also more easily infringes on the legitimate interests of the creditors.Therefore,this article mainly discusses this issue--"when the equity transferor transfers the equity before the expiration of the funding period,and the transferee of the equity transfer fails to perform after the obligation of contribution has expired,and the company capital cannot repay the debts due,how should the creditors of the companyseek the protection from the court,and whether they can request the transferor to assume the responsibility of supplementary contribution ".The first part of the article is mainly about the related cases.By "Non-litigation" and "China Judgment Paper",I find a total of 8 cases,all of which are related to the creditor`s request that the transferor assume the supplementary responsibility.Two of the cases do not support the investment,and another six cases support.One of the six cases is special,which mainly analyzes the system of the accelerated payment of capital contribution,but also supports the assumption of the supplementary responsibility of the transferor for the post-transfer capital contribution.The second part is mainly about the legal analysis of the supplementary responsibility of the transferor for the post-transfer capital contribution.By analyzing the situation that the transferor dose not assume the supplementary responsibility,the paper points out the disadvantages of this situation,and raise the conclusion that transferor should assume supplementary responsibilities.After analyzing the principle of capital enrichment and the creditor`s interest protection,this paper believes that there are some excuses and significance for the unexpired equity transferor to assume the supplementary responsibility.It is not only the innovation and the implementation of the principle of capital enrichment,but also the good protection of the interests of creditors under the subscription system.The third part is the conclusion that after the key analysis of Article 18 of the Judicial Interpretation of the Company Law(III),this paper concludes that the current law of China lacks the rule of law on the issue of the transferor`s supplementary responsibility.In the first part of the article,there are six cases that all support the conclusion of the supplementary responsibility of the transferor for the post-transfer capital contribution.However,the conclusions are based on Article 18.Through the analysis of Article 18,the author finds that Article 18 is totally inapplicable to this article.It seems to be similar to the fact that it is not true.In the issue of the role,the transferor and transferee are reversed,and the transferor’s transfer of the capital contribution obligation before its maturity date is completely inconsistent with the premise that “there is no implementation or the full implementation of the capitalcontribution obligation”.Therefore,Article 18 of the Judicial Interpretation of Corporate Law(III)does not apply to the resolution of this article.In addition,through combing and analyzing other relevant laws of the company law,it was found that there was no applicable law.Therefore,based on the affirmative attitude of the majority courts analyzed above,the legal basis for the transferor to shoulder the responsibility of replenishment,and the background that there is no reasonable basis in the existing law,the last part which draws on the German Company Law builds the framework about "the supplementary responsibility of the transferor for the post-transfer capital contribution",ultimately promotes the security and stabilization of the capital market transactions under the subscription capital system.First of all,the supplementary responsibility assumed by the transferor has a co-location effect,that is only when the transferee fails to fulfill its capital contribution responsibility,the transferor assumes supplementary responsibility.Secondly,when the creditor requests the company and its shareholders(in this case,it refers to the transferee shareholder)to assume the liability for liquidation,the court can ask shareholders to accelerate capital contribution.When the company’s capital is difficult to pay off its corporate debt,the capital contribution obligation is expedited,which allows shareholders to fulfill their capital contribution obligations and enrich company capital.Then again,regardless of whether the company’s debt occurs before or after the equity transfer,the transferor needs to assume the additional responsibilities,as was the case with German Company Law.Then,the stipulations of the equity transfer agreement between the transferor and the transferee on the follow-up capital contribution shall not be valid to the outside world,and can only be used as the basis for recourse against each other.When the court judges that the transferor and the transferee bear the corresponding responsibilities,the transferee assumes supplementary compensation liability for the company’s debt within the scope of the unsuccessful capital interest held by the transferee.The transferor assumes additional responsibility when the transferee cannot perform the supplementary liability.Of course,in order to balance the interests between the transferor and the creditor,the transferor and the transferee,the transferor’s interest should also be protected.It is the same as the German Company Law.The transferor of a limited liability company should bear the additional responsibility for the inability of any transferee to fulfill its capital obligation within 5 years after the transfer.The limited company is 2 years.Secondly,if the equity transfer agreement does not stipulate the follow-up responsibilities that may occur after the transfer,the legislation should achieve a balance of interests and give the transferor the right to buy back the equity,so that the transferor can obtain the transferee’s own responsibility after the replenishment.The legislation,to a certain extent,forces the transferees to fulfill their capital contribution in full time and at the same time,taks into account the legitimate interests of the transferor,so that the new system proposed in this paper is reasonable and can be adopted.At present,the implementation of the subscription system is in line with the international trend.All over the world are in the reform of the company`s capital system to promote the development of market economy.Premier Li Keqiang also delivered aslogan of "mass entrepreneurship and innovation" at the 2014 Davos forum in summer,which was an excellent response to the reform of the current company law.On one hand,we should encourage innovation business,on the other hand,we must also strengthen the protection of the interest of creditors in the market.We must study and solve the problems that have already emerged but are not yet legally prescribed,and set up corresponding laws and regulations.Only in this way can the subscription system really play a role in achieving its original purpose.