Study On The Path Of Creditors Protection Under The Company' Subscribed Shares System

At the same time,the reform of subscribed shares system brings convenience to the shareholders of the company,Because there is no supporting monitoring mechanism,it also brings risks to creditors.In view of the problem of creditors' relief under the circumstances that the deadline for subscription of shareholders appearing in judicial practice has not reached and there is another problem in solvency of the company,Scholars have advocated from the point of contribution of shareholders to accelerate the capital contribution period of shareholders to accelerate,so that shareholders fulfill their funding obligations ahead of schedule,and then apply article13 paragraph 2 of Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China(III),or directly apply article 3 paragraph 2 of Company Law of the People's Republic of China,so as to achieve the purpose of creditor protection;This paper argues that there are some loopholes in the reform of the capital system,the relevant provisions of the shareholders have a legal loopholes in funding,still from the point of view of the contribution of shareholders to explain the relevant laws and regulations,has been out of the scope of the interpretation of the law continued to fall into the situation of Rechtsfortbildung.Instead,it should change the concept of creditor protection,pursue the personal responsibility of shareholders behind the company through the denial of limited liability and achieve the purpose of creditor protection by directlyinvestigating the relevant directors' liability through the explanation of the relevant laws and regulations concerning the fiduciary duty of directors.This article is divided into three parts: The first part first pointed out that China's current Subscribed Shares System has the defect of protecting creditors.First of all,under the reform of the executive-led legislation,the full recognition of the reform of the payment system will inevitably lead to the result that only focusing on decentralization and emphasizing shareholders' freedom of investment will make this reform quite Chinese-characteristic and does not follow traditional civil law countries or The reform of the capital system in the region is merely the removal of the minimum capital rules,and the full payment rules will not be adopted;in contrast,China's reform adopts the full amount of the subscription system and neglects the protection of the interests of creditors;but this also exists for creditors.The remedy of protection is the introduction of a call payment system,but Chinese company law also lacks system design.Therefore,this section subsequently describes the provisions of the UK's corporate law,which also has a partial payment of shares,for the call collection system.The second part mainly discusses the doubts of the author's judicial practice and the emergence of the creditor protection path in the academic circle which is mainly based on “Accelerating the shareholder's contribution obligation”.There are three viewpoints for adopting this route.They are: Article 13,paragraph 2,of the "Judicial Interpretation of the Company Law III";Article 3 of the "Company Law";and "The capital contribution period is an internal agreement and does not have effect on the third party." The author clarifies the purpose of the above-mentioned law by explaining the purpose,explaining the system,and sorting out the history of its legislation,clarifying the meaning of the provision,and demonstrating that it cannot be used as a way for creditor protection.The understanding of the above points of view surpasses that of the law.The due meaning is not part of the expansion explanation and falls into the category of analogical application,but it does not meet the applicable requirements of analogy.The fundamental reason is to over-understand the company from the perspective of property and emphasize the determination of thecompany's capital,in order to investigate the shareholders' responsibilities.The third part mainly discusses the idea that creditor protection should be changed.Under the traditional “three principles of capital” theory,the protection of creditors is too rigid,the company is regarded as a static “set of property”,and the establishment of the company's capital at the time of its establishment and the maintenance of capital afterwards are not the only theories that cannot protect creditors.Instead,it restricted the company's freedom of operation.Under the Anglo-American law system,similar regulations existed at the beginning.However,it has been reviewed and no longer emphasized how much the company should have as a guarantee for creditors.Instead,it regulates the behavior of directors.The protection of creditors is done by distinguishing between individual behaviors and corporate behaviors and denial of limited liability.Therefore,the path of creditor protection is explored from two paths,namely the path of limited liability disclaimer and the path of directors' fiduciary duty.This article does not intend to make suggestions on the reform of our country's capital system from the perspective of legislation.It is more inclined to try to seek the protection of the creditors under the current law from the perspective of interpretative theory.