The Research On Accelerating Expiration Of Shareholders' Capital Contribution Obligations

The system of capital subscribed gives shareholders a certain degree of freedom to "subscribe" in terms of capital contribution.However,it has become a major problem for shareholders to "subscribe" but not "pay".The law has relaxed the capital control of the company.The shareholders evade the performance of the obligation of capital contribution by agreeing on a long-time limit of capital contribution.Due to the lack of control mechanism to urge the shareholders to perform their capital contribution,it is difficult to meet the capital demand of the company.In order to carry out the operation of the company,the company often chooses to borrow from the shareholders.In fact,the shareholders replace their capital contribution by borrowing,which is against fairness and justice.In addition,in order to solve the information asymmetry construction There are also some limitations in the enterprise credit publicity system,which makes the creditors face a sharp rise in risk,so we need to give more protection to the creditors.Under the current legal system,shareholders enjoy a wide range of term interests,and the obligation of capital contribution is only accelerated when the company applies for bankruptcy or dissolution.According to this idea,in general,can creditors require shareholders to fulfill the obligation of capital contribution in advance and bear the supplementary liability for the company's debts?There is a great controversy between theory and practice.In practice,the court,based on the conservative judicial doctrine,mostly holds a negative attitude towards the accelerated expiration of shareholders'investment.In the newly released minutes of the civil and commercial trial work meeting of the national court,compared with the previous negation,the Supreme Court adopted an open attitude of principle negation and exception affirmation to accelerate the expiration,and unified the judgment standard through an open-ended approach.For the different views of accelerated expiration,the author thinks that both the negative theory and the compromise theory are insufficient,and should agree with the positive theory.At present,other legal systems are not enough to replace accelerated expiration and protect the interests of creditors.The scope of application of the creditor's right to revoke is narrow.In practice,most companies are established before the long term of capital contribution,and the creditor's rights are established after.The denial of corporate personality is not the same as the acceleration of expiration,which can not be replaced because of the significant shortage of corporate capital.In practice,the denial of corporate personality needs to be considered in a comprehensive way.By applying for bankruptcy,forcing shareholders to make capital contribution in advance is applicable to the shareholders with good faith and rationality,but not to the companies with "subjective insolvency",and there are institutional loopholes.For a company that is unable to pay its debts objectively,it should be treated separately according to two situations.When the company is in the position of insolvency+insolvency,the application of accelerated maturity will lead to biased repayment.The bankruptcy system should be used to pay off all creditors fairly,or the accelerated expiration should be applied cautiously by exception.When the company is in the position of insolvency+obvious lack of solvency,the undue capital contribution of shareholders is regarded as the forward debt of the company,which exceeds the company's debt,the creditors can choose to accelerate the expiration or file bankruptcy,but the accelerated expiration has the advantages of low cost and high efficiency.In terms of theoretical basis,the necessity of accelerating expiration can be demonstrated from the following aspects:the consistency of rights and obligations,the requirements of organizational law obligations,taking into account the interests of shareholders in part of the term,the requirements of fairness and justice,and the cost-benefit analysis.Since it is necessary to accelerate the expiration of application,it is necessary to find an appropriate application path under the existing legal system,that is,the so-called basis of the right of claim.In many legal paths such as contract law,company law and procedure law,the author thinks that the second paragraph of Article 13 of company law interpretation(3)is the most appropriate,but it needs to be interpreted according to the substantive purpose of the law.In terms of specific interpretation,it is necessary to interpret the expansion of "failure to perform or not fully perform the obligation of capital contribution" as not only the general breach of capital contribution,but also the non-breach of contract;In case of non-breach of contract,the scope of shareholders' supplementary liability for the company's unliquidated debts is reduced from "within the scope of capital and interest not contributed" to "principal not contributed".In addition,the standard of "unable to pay off' should not adopt the mainstream of the academic circle "unable to say the compulsory execution",but should refer to the standard of "unable to pay off the matured debts+obvious lack of solvency"in the bankruptcy law.Among the five standards of "obvious lack of solvency",the author advocates drawing lessons from the equity solvency test in common law,using corporate cash flow as the main judgment basis,and other standards as the exception standard.