| Capital System is the core of the company system.Out of capital,the company would like water without a source and a tree without roots.Therefore,it is the material foundation of company establishment,as well as the precondition of the ability to independently bear civil duties.Definitely the company could gain property through in various ways,however,shareholder investment is the only property in legal sense among the company’s possessions.The company capital plays two important role.For one hand,shareholders control the investment risk through contribution to assume limited responsibility,for another,shareholder’s contribution provide the capital to make the company engaged in commercial activities,also provide the guarantee to the creditors.The company capital attach significance for both training safety and bona fide third party’s benefits.However,the company is established on the shareholders’ contribution.The shareholders get profits for the company and rights to distribute the residue.Actually the company is controlled and managed by the shareholders,and the creditor couldn’t attend the management like a spectator.Hence for the sake of market stabilization,The Company Law always lay emphasis on creditor’s profit protection,but theshareholder and creditor have different influence to the company,like information asymmetry during management let them get different protection of rights,the creditor gets the bigger risk.Therefore,for the purpose of creditor’s profit wouldn’t be hurt from the shareholder’s limited liability,the legislation preset the process about company capital funding,operating and withdraw,generally speaking as “capital fixing and unchanged principal”.The process mainly aim at guarantee company’s solvency.“The three Company Capital Principals are set under the background of imbalance to the interests between creditors and shareholders,especially the risk of creditors is raising,so the principal aim at protecting the profit of the company,investors and the creditors.”Along with the economy development,traditional capital expose more and more problems.For investors,capital payment system elevates requirement for market access,and the preset process restrain investor’s enthusiasm,violate the market economy principal.Actually,the process couldn’t guarantee the trade safety.For creditor,the assets credit is more safety than capital credit.Therefore,the government has deregulated and given more autonomous space to the company.“Less deregulation,more autonomy” is becoming the target of the modern company system.(Then how to explain <Company Law> judicatory explanation 4 about the judicial intervention of company autonomy.)Given all that,our country follows the trend of international company capital system reform.We reformed enough of our company capital system in 2013,such as abolished the lowest limit requirements of legal registered capital,the registered capital of the company changed from the actually paid to subscription(no more limit the first payment and installment of the shareholder/sponsor),cancel the capital verification requirement and confirmation,and also revised the registration system.This reformation has the positive effect for lowering investment cost and stimulating the investment activity.In the meantime,the reformation has the far-reaching effects on the legal consequences which registered capital contains.And it also generates a vigorous discussion about the relevant issues of the theory circle and practical realm.Forexample,is the shareholder responsible for the obligation of funding? Does the funding have the statutory requirements for authenticity and adequacy?Company Law judicatory explanation about the rules of adjudication for confirming the accountability of contribution by shareholders are inappropriate or not.In author’s option,the revision reflects the thinking of transformation from capital credit to assets credit,because the company undertake the due obligations to creditors with total assets rather than registered capital.In the long run,it is beneficial to control the transaction exposure and protect the transaction safety.But the content situation is that shortcomings in China’s Enterprise Information Disclosure System and Enterprise’s Integrity System not yet established,transaction order and safety will suffer the most if implementing the Subscribed Capital System.The shareholders’ investment obligation in the system becomes more autonomic and flexible,so how to prevent the shareholders abuse their authority and protect creditors to realize their claims should be taken in Legal Practice.This article is built on Contract Law,Tort Liability Law,Corporate Law and The judicial interpretation or the the judicial precedent.It attempt to discuss the situations of the shareholders bear civil liability to the creditors in the Subscribed Capital System,searching the equilibrium point between the shareholders and creditors,also try to Analyzing the problem of Shareholder capital acceleration,disregard of corporate personality,etc.and figure out the results for reference. |
