Judicial Cognizance Of Accelerated Expiration Of Shareholder's Contribution Obligation Under The Subscription System

After the revision of the Company Law in 2013,China has began to implement a full capital subscription system,which means that shareholders can arrange their own capital contributions according to the company's articles of association.However,in the field of judicial practice,more and more creditors filed a lawsuit against the company,and pushed the shareholders who had not invested in the capital to the dock,demanding that they pay in advance and assume additional liability for the company's debt.Through the statistics of the relevant judgments on accelerating the maturity of shareholders' contributions from 2015 to 2018,it is found that the number of cases presented in these characteristics that cases is increasing year by year,the distribution of cases is wide,the application of law is not uniform,and the results of judgments are all the same.In order to effectively protect the legitimate interests of corporate creditors and maintain the efficiency and stability of commercial transactions,the court should uniformly identify the cases in which the shareholders' request for capital contribution is accelerated,and balance the interests of the company,shareholders and creditors under the capital subscription system.The judicial field should focus on solving the three major problems of disputes,that is,the shareholder's obligation to accelerate the expiration of the right to claim,the factual requirements and the exercise procedures.The basis for the claim of the shareholders' contribution to accelerate the expiration is to solve that which substantive legal norms can be applied when the creditor requests the shareholders to make advance payment.In judicial practice,the Company Law,the Enterprise Bankruptcy Law and related judicial interpretations have been used by the court as the legal basis for supporting creditor requests.However,there are also no legal basis for the referee to believe that the creditor's request for the shareholders' contribution to accelerate the expiration.Judicial activity is a process of exploring the basis of claims.In the case of disputes over the law,judges should seek the truth of the law by interpreting the law and even “creating” the law.Combining relevant theories and practices at home and abroad,,we can try to explain the third article of the company law by using the statutory obligation theory or reinterpret the meaning of "unfulfilled or not fully fulfilled the capital contribution obligation" and the "unpaid or insufficiently paid contribution" by the expansion interpretation method.When determining that the shareholder's contribution obligation accelerates the expiration,the court tends to use the “insolvent after execution” standard to determine that the company is unable to pay off the debt due,mainly because the standard is objective and quantifiable.However,the standard of “insolvent after execution” is uneconomical for judicial activities and requires a large cost for the court.At the same time,the standard of “insolvent after execution” violates the principle that commercial law encourages transactions and emphasizes efficiency.Companies,shareholders and creditors also need to spend a lot of money and energy.It should be considered that as long as the company's debt is legal,expires,and the company has not fully settled its debts,the factual conditions are already in place.Of course,this fact should be confirmed by the court.The company and its shareholders can also put forward corresponding evidence to defend against the realization of the creditor's request.When the creditor proposes the request that the shareholder's capital contribution obligation accelerates the expiration,because of the theoretical dispute,different judges make different judgments according to different viewpoints,which leads to litigation and execution mutual deduction,and it is difficult for the parties to form reasonable expectations.In fact,the litigation process and the execution procedure are all feasible ways for creditors to make an expiration of the expiration request.If the creditor's request is substantively processed in either the proceedings or the execution of the procedure,it should not be supported in another procedure.If the creditor does not request the company's shareholders to make capital contributions in advance in the lawsuit,it may file another lawsuit or add the person to be executed in the execution procedure.If the shareholder chooses to expedite the expiration in the proceedings or promises that the he has actually paid all the capital contribution to company before the litigation,and the actual payment has not been paid,the court can simplify the process and accelerate the expiration.