On The Accelerated Maturity Of Shareholders' Contribution Obligation Under The Non-bankruptcy State

After the amendment of the company law in 2013,except that the shareholders of the company limited by shares raised and established still need to pay their capital contributions in full in one time before the registration of the company,other limited liability companies and joint-stock companies initiated and established by the company have cancelled the limit on the amount of their first capital contributions and the maximum time limit for paying their capital contributions in full,that is to say,the subscribed capital contribution system is implemented.It expanded the scope of shareholders' autonomy and stimulated the market vitality.However,the reform of the registered capital system also brings some problems,such as the malicious extension of the time limit of shareholders' contribution to an unreasonable state by some companies,in order to avoid the obligation of contribution and violate the original intention of the reform of the capital system.In this context,in order to protect the interests of creditors,the question of whether to apply "accelerating the maturity of shareholders' contribution obligations in non-bankruptcy state" arises.That is to say,during the existence of the company,when the creditor asks the company to perform the due debts and the company's assets cannot be paid off,can the creditor ask the shareholders who have not yet fulfilled the time limit of capital contribution obligation to pay the share capital,so as to solve the capital problem faced by the company and realize the creditor's rights?There are various controversies about this issue in the academic circle,and there are different opinions in judicial practice.Based on this,this paper analyzes the problem of "accelerating the maturity of shareholders' contribution obligation under non-bankruptcy state".According to the real cases in the judicial practice,this paper combs the judgment reasons of supporting and not supporting the accelerated maturity ofshareholder's contribution,and clarifies the basis of the judge's judgment.At the same time,the article analyzes the views of the Supreme People's court in recent years,the supreme law for the "accelerated maturity of shareholders' contribution obligations under non-bankruptcy state" system from completely not recognized to conditionally recognized.And combed the controversy focus of "accelerating the maturity of shareholders' contribution obligation under non-bankruptcy state" in the theoretical circle.Thirdly,the paper analyzes the necessity and theoretical basis of "accelerating the maturity of shareholders' contribution obligation in non-bankruptcy state",and believes that the lack of protection of creditors' interests needs to be solved in the current non-bankruptcy situation,and that other legal systems have limitations.The theoretical basis of "accelerating the maturity of shareholders' contribution obligation in non-bankruptcy state" is in line with the basic norms of the company law.It is the embodiment of the principle of capital enrichment,the principle of unification of rights and obligations,and also in line with the legal debt theory.Shareholders have the legal contribution obligation.This paper provides a legal basis for the application of "accelerated maturity of shareholders' contribution obligations in non-bankruptcy state".It is based on the second paragraph of Article 13 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China(3),which has legal loopholes and should be filled.After filling,the provisions of this paragraph are reasonable and in line with the interests of all parties.At the same time,it makes clear the applicable elements.First,the company is unable to pay off its debts,and supports the theory of "the company's property can't be paid off after enforcement",and objectively judges the company's solvency through judicial enforcement procedures.Second,the shareholder fails to fulfill the obligation of capital contribution,which refers to the shareholder who fails to fulfill the obligation of capital contribution due to the expiration of the time limit of capital contribution stipulated in the articles of association.At the same time,the principle of inversion of the burden of proof is applied.For the creditor of the company,the shareholder is responsible for providing the preliminary evidence that reasonably doubts the shareholder's failure to fulfill the obligation of capital contribution,andthen the shareholder bears the burden of proof to prove that he has fully fulfilled the obligation of capital contribution If the shareholder can not prove it,he shall bear the adverse consequences of losing the lawsuit..Third,the creditors can directly take the company and the shareholders who have not fully fulfilled the obligation of capital contribution as the joint defendants when they bring a debt settlement lawsuit against the company.Finally,the other problems of "accelerating the maturity of shareholders' contribution obligation in non-bankruptcy state" are clarified.The shareholders shall not claim to deduct the corresponding interest from the company and the creditors for fulfilling the obligation of capital contribution in advance.The system of "accelerated maturity of shareholder's contribution obligation under non-bankruptcy state" is also applicable to the external transfer of equity by shareholders who have not fulfilled their contribution obligation.When the company reduces capital,the contribution of shareholders who have not fulfilled their contribution obligation shall be accelerated to maturity.When the company is ready to reduce capital,the debtor raises an objection to repay the debt in advance,and the company is unable to repay,the shareholders who have not fulfilled their contribution obligation shall apply to“ Under the condition of non-bankruptcy,the shareholder's obligation of capital contribution is accelerated to maturity ".