A Research Of The Subordination Of Shareholder's Loan In Bankruptcy

When the company has financial problems,equity financing or debt financing can be adopted to make the company back to the normal track of operation.With the reform of subscription system in China,the boundaries of financing methods become more and more blurred.After the initial payment amount and the payment period of shareholders or promoters is no longer limited.Shareholders,in order to avoid operational risks,pay more attention to debt financing.There is no denying that a series of problems will arise in this context.Debt financing enables shareholders to recover their debt just like ordinary commercial creditors,while equity investment may lose part or all of its equity investment in the same situation.As a result,shareholders are increasingly willing to invest a small portion of their capital as equity and inject the rest into the company as loans.In the case of insufficient shareholder contribution,the shareholder loan repayment in what order to lead to thinking.In particular,a typical case of the Supreme Court,"Shagang company v.Tiankai company's objection to the implementation of the distribution plan",caused a heated discussion that the shareholders' loans with false capital were repaid after the external creditor's rights were inferior.Some scholars believe that this case is a successful case of our country,learning from the American principle of equitable residence,which also fills the legal loopholes in our country.There are also some scholars thinks,the shareholders' creditor's rights with false capital contribution should not be inferior to the external creditor's rights,and should not be applied to the American principle of equity subordination.Therefore,does the shareholder loan exist after inferior receives the repayment situation? Should the shareholders' loans with false capital contributions be repaid uniformly? What should we do to restrict the compensation system if it is not uniform? Through literature research method,case analysis method and comparative analysis method,the author comprehensively discusses the legal problems of inferior loans to shareholders from four parts in order to give an answer to the above questions.The first part is the basic problem of the compensation of shareholder loan.Firstly,it compares the advantages and disadvantages of equity financing and debt financing.Secondly,under the reform of subscription system,the typical problems caused by the prevalence of creditor's rights financing lead to the view that shareholders who make up the capital contribution should be compensated equally with external creditors.Finally,the author discusses the reasons of the theory of shareholder loan.The second part is to study the current situation of the legal problems of shareholder loan.First of all,from the lack of laws and regulations in China and the lack of theoretical development of China's shareholder loan after the lack of compensation norms.Then,the author is aimed to explore the realistic dilemma of the compensation of shareholders' loans after their inferiority.Through the interpretation of the case and the solution to the practical difficulties,it clarifies the relationship between the sequence of payment of unreal shareholders' creditor's rights and the significant shortage of capital and the unreal investment,and obtains that the unreal shareholder's rights does not apply to the principle of equity subordination in the United States.In the third part,the author firstly introduces the German legislation on the compensation of shareholders' loans after inferiority.By comparing the German system of replacing the shareholder's loan of self-owned capital with that of the shareholder's creditor's rights after reform,the author concludes that the Germansystem of replacing the shareholder's loan of self-owned capital is superior.The second is to study the generation,development and application of the principle of equity subordination in the United States,and compare the two inferior systems,so as to conclude that the German alternative to the ownership of capital shareholder lending system is more consistent with the existing legal system in China.The fourth part discusses the perfection of the localization system of shareholder loan.Firstly,it explains the necessity and possibility of perfecting the system of compensation for inferior loans.Secondly,on the basis of researching connected regulations and opinions of different countries,comparing to China's actual situation.This paper proposes specific measures to improve the system of compensation for inferior loans of shareholders in China,and studies the localization of the system from three aspects: determining the applicable subjects of the rules,determining the types of compensation for inferior loans,and considering the consequences.