Study Of Set-off Issues In Capital Contributions

In the reform of company capital system,shareholders' contribution mode has been changed from actual payment to subscription.As a result,the proportion of the amount of capital contribution that shareholders do not actually contribute has increased in the registered capital of the company,which has become an important part of the company's assets.Shareholders' obligation to subscribe to the company can be regarded as their creditor's rights to the company from the perspective of creditors' rights.At the same time,in the course of the company's operation and management,the company will also be liable to shareholders.For example,shareholders may temporarily pay for the company in some transactions or the company borrows directly from shareholders(due to the high standard of loans from financial institutions,cumbersome procedures or other conditions,many private enterprises borrow directly from investors to solve the problem of capital.)As mentioned before,when a company and a certain shareholder are in mutual liabilities,it is natural for one party to think of the way of offset to eliminate creditor-debtor relationship.But the relationship between company and shareholders in company law is more complicated and special than that of equal subjects in civil law.In addition,the value pursued by the set-off system in civil law lies in the convenience and simplification of the transaction and in guaranteeing the fulfillment of obligations.The company law is endowed with the spirit of organizational law.More importantly,company has its independent legal personality,it is necessary to consider the protection of the property of company,so as to supervise the shareholders' investment obligations and ensure that the company's capital is real and substantial.Therefore,whether the elements of set-off in civil law can be applied in company law and how to apply them to achieve the best effect has become a new question.The obligations and rights of the countervailing shareholders,the property independence of the legal person of the company,the interests of other shareholders and creditors of the company should all be taken into account.This paper attempts to classify the three situations of offset in the company system and explore the possibility of the implementation of the offset system between the non-contributing shareholders and the company separately.If the offset system can be applied,what are the elements and what restrictions should be made? I hope that through the theoretical discussion of the above issues,I will elaborate some thoughts on offset in shareholder investment.This paper is divided into the following four chapters:Chapter 1.I will start from the nature and particularity of shareholders' investment obligation,and make sure it is necessary to balance of interests of the company,shareholders,creditors and other parties if apply the set off system.Chapter 2.I will elaborate that under the management of company,shareholders offset their share payments to the company with their creditors' rights,whose essence is to invest in disguised form at the value of creditors' rights.However,this kind of action is to invest using shareholders' creditors' rights without evaluation and publicity,which will damage the property enrichment of company and the interests of other creditors.Therefore,it should be prohibited by company law.Chapter 3.I will introduce a special situation that allows the offset between shareholders and the company,that is,when shareholders' ability to perform theircapital contribution is obviously insufficient,the company can actively claim offset at this time to protect the capital enrichment of the company.This chapter also elaborates the limitations of offset in this situation.Chapter 4.This chapter discusses the offset when company is in bankruptcy.It holds that when the company is in bankruptcy,the unexpired capital contribution obligations are also considered to be due.For shareholders with capital contribution obligations,they should first make up the capital contribution obligations,and then be liquidated as ordinary creditors.Therefore,capital contribution offset should not become a general principle,even in the special circumstances described in Chapter 3,restrictions should also be made.