Study On The System Of Responsibility Of Defect Of Shareholders' Capital Contribution

Shareholders' defective capital contribution has been a long existing problem,and Company Law of the People's Republic of China together with Provisions on Some Issues Concerning the Application of the Company Law of the People's Republic of China(III)both stipulate the legal responsibilities borne by shareholders for their defective capital contributions.Nevertheless,the provisions of the Company Law are relatively simple and cannot make a clear legal definition of the liability for the shareholders' defective capital contribution,which leads to endless debates in the academic world and inconsistent results in judicial practice.Although Company Law of the People's Republic of China made an important revision to the company's capital system in 2014,this issue has not been effectively solved.In addition,some changes have taken place in the legal basis of some of the issues.Therefore,some problems in the responsibility system of shareholders' defective capital contribution still deserve our reflection.This article will start from the claim of company on shareholders who defect capital contribution,claim of other shareholders on shareholders who defect capital contribution,claim of creditors on shareholders who defect capital contribution,other relevant groups on sponsors' joint liability,the claim of company,other shareholders and creditors on directors and senior executives' mistakes,together with claim of company and creditors on defective equity transfer.Furthermore,this study may rethink the controversy and imperfection.In addition,this article may study the reasonableness and efficiency of this liability system.As a result,it could optimize thedefective capital contribution liability system,balance the legal responsibilities and interests of all parties and improve judicial efficiency.The first chapter is mainly on the introduction to shareholders' contribution obligation and defective capital contribution,the impact of subscription capital system on defective contribution,together with combing out the liability system of shareholders' defective capital contribution.The second chapter focus mainly on the controversial problems among varied claims.Specifically,those problems are that whether claim of company on defective capital contribution is on the basis of Organizational law or contract law,what is on the claim,whether it is rational to the direct claim of other shareholders on detective contribution offered by organizational law,the rationality and imperfection of claim of creditors on the joint liability for defective contribution offered by subrogation theory,how to balance the competing interests among creditors,whether it is breach of limited liability for claim of sponsors,who is the rational claim subject,who shall bear the responsibility of the directors or the executives,whether it is necessary to broaden the scope of responsibility under the recognition system,how is the efficacy of defective capital transfer,whether the assignee shall bear the liability for defects,and who can claim for the assignee to take the liability.Finally,based on the reflection on the problems stated above,there come some new thoughts and suggestions.The author believes that the company has the right to request the defective shareholders to pay the compensation and take the liability for compensation.Shareholders' contribution to the company is based on the organizational law rather than the contract law,therefore it is unreasonable to solve the problem of defective capital contribution on the basis of contract law.In addition,the shareholders' agreement cannot be against the company's articles of association,and the claim of other shareholders on the shareholders' the defective capital contribution may cause the confusion of corporate governance.Although the claim of creditors on the defective capital contribution for compensation liability may break the contract relativity,it may cause panic and burden of defective capital contribution shareholders to a certain extent.On the purpose of protecting creditors,the claim could be preserved,and the claim is supposed to be stricter than subrogation based on contract law on the side of applicability.At the same time,for balancing the interests of the creditors with competing problem,the author thinks that the creditors can claim payments directly rather than after putting in storage,but it is also significant to dowell in linking with the bankruptcy law.There exists unfairness in sponsors' joint liability,and it should expand the range to all shareholders.Meanwhile,the principle of fault rules should be adopted.To be more specific,when all shareholders have no faults,shareholders fairly burden after the creditors contribution,as well as the claim can only be attributable to the company.There exits certain rationality in the liability of directors and executives' fault,at the same time scope of the liability should be extended to the whole operating period rather than only limited to the capital increase period under the subscribed system,additionally the claim can only be attributable to the company.It is valid that the assignee transfers the defective capital contribution and takes on the joint liability as well as the transferee.The claimers should be the company and creditors on the basis of Rechtsschein theory...