Research On The Issue Of Acceleration Of Shareholders’ Capital Duty:Dilemma And Countermeasures

The company law was amended in 2013,and the corporate capital system was changed from the installment payment system to the subscribed capital system.The new system used for establishing a company easily and stimulating the vitality of social entrepreneurship.However,the lack of supporting systems caused academics worry about the inadequate protection of the interests of the company and creditors.The issue of acceleration of shareholders’capital duty is a microcosm of the collective depression by the hasty and secret revision of the company law.Except for conclusion,the thesis is divided into six parts to study the issue.The first part is the introduction.The revised company law implements the subscribed capital system,which raises the problem analyzed.When the company is unable to repay debts,can the creditor require shareholders to shoulder the liability for compensation within the subscribed but unpaid capital,that is,whether the capital should be accelerated?Apart from the acceleration in bankruptcy or liquidation procedures,which are clearly prescribed by law,are there other circumstances in which this effect can be achieved?After systematically studying the predecessor’s research,the thesis analyzes the aforementioned issues using three main research methods of normative analysis research,empirical research,and comparative research.The second part is the analysis of current law of acceleration of capital.The thesis focuses on the analysis of relevant laws and regulations that have discussed by the practice and theory circle.The provisions of the PRC Enterprise Bankruptcy Law clearly state that once the company enters the bankruptcy(liquidation can be seen as bankruptcy)procedures,the capital duty should be accelerated.The provisions of the PRC Company Law,whose rules of the capital system are to be interpreted in literal or extensive manner,there is no arrangement for accelerating capital.Piercing the corporate veil based on inadequate capitalization can not solve difficulties,such that the factual premise is difficult to determine and the reason is not sufficient.According to the PRC Contract Law,its creditor preservation system,which include subrogation and rescission right of creditor,has strict constituent elements that cannot or cannot fully solve the issue of acceleration of capital.It can be seen that there is no definite legal provisions for the acceleration of capital in non-bankruptcy and non-liquidation circumstance.The third part is the judicial dilemma of acceleration of capital.The thesis counts and analysis the judgement documents of Guangdong Province,the City of Beijing and Shanghai.After analyzing and combining one by one,it can be found that the same case has different judgement.The acceleration of shareholder’s capital obligation in current period suffers a dilemma in judicial practice,so the judgment should be unified as soon as possible and the legal system should be improved.The fourth part is the response of the Supreme People’s Court and analysis.The Supreme People’s Court recognized the phenomenon of same cases being judged differently,and successively held meetings and issued guidance documents to try to unify judgement.Regarding the issue of acceleration of capital,the Supreme People’s Court put forward the approach of bankruptcy(liquidation)monism,that is,capital can be accelerated in bankruptcy or liquidation procedures in principle,while acceleration of capital in other situations will eventually enter the bankruptcy proceedings.Bankruptcy(liquidation)monism will lead to imbalance in the interests of creditors and shareholders,and the current bankruptcy dilemma actually exists,so it is urgent to adjust the response.The fifth part is the study and references of foreign law.The US has comprehensive theories of acceleration of capital,such as fund trust theory,fraud theory,subscribed agreement theory,and statutory debt theory.Japan,England and the US have relatively mature system of directors(board of directors).Among them,the Japanese company law has system of directors at the time of company establishment,while England and the US have established the system of calling up of capital.Drawing on theories and practice,the thesis argues that it is inappropriate to accelerate capital by lawsuit singly,but rather to establish system of calling up of capital in PRC Company Law.The sixth part is measures to solve the issue of acceleration of capital,that is,to establish the system of calling up of capital in combination with the current provisions of the company law.Circumstance of the call-up system is below.First,the board of directors makes a call based on commercial judgment.Second,a specific situation stipulated in articles of association occurs.Third,the company cannot pay its due debts.The board of directors(not set as an executive director)has a clear understanding of the company’s operating and capital requirements,so it should be set as the caller.The call-up procedure is to make a call-up resolution by the board of directors,then issue resolution documents,written call-up notices to the shareholders who are called,and finally initiate lawsuits,auction and other measures based on the results of the call-up.In order to effectively operate the called-up system,the commercial judgment principle of American can be used to reasonably set the director’s call-up liability.