Research About The Error Of Accelerating The Responsibility Of Shareholder's Contribution Under The Non-bankruptcy And The Solution Of The Problem

The amendment of the Company Law in 2013 significantly relaxed the restrictions on the contribution of shareholders of limited liability companies and allowed shareholders of limited liability companies to freely agree on the duration of capital contributions.This change has also caused a certain confusion while gives convenience to investors' capital arrangements,improves investment enthusiasm and stimulates market vitality.It is not uncommon for shareholders to evade the obligation of capital contribution by extending the period of capital contribution,which also brings great risk to the creditors of the company.It is the question that if the company can not pay off the debts due,whether shareholders can be required to pay their recognized but unpaid capital contributions in advance,in order to realize the settlement of the company's debts.Recently,the Summary of the National Court's Civil and Commercial Trials Conference explained this issue.It proposed two exceptions on the basis of the principle of opposition to accelerated expiry,which brought about new changes in the debate in this area.The author thinks that the solution of this problem should be solved by the current law,and fully explain the supplementary liability of shareholders as stipulated in Article 13,paragraph 2 of the Public Judicial Interpretation III.The author firstly analyzes the prerequisite for shareholders to assume supplementary liability,that is,what is the company "cannot pay off the debts due",and holds that this condition specifically refers to the property that the debtor's company can use directly to repay the debt is not sufficient to pay off the debt,and that the property or property rights of the debt,which are equivalent to the underlying value of the debt,according to laws and regulations and its own nature,can be used to pay off or discount the debt at different prices.After that,the author thinks that the "non-performance or non-full performance of capital contribution" in the clause can not include the non-expiration of the shareholder capital contribution period,and the legal basis of this article does not support the "accelerated expiration" of shareholder capital contribution,so there is no legal basis for this practice.Further,the author analyzes the company in the "accelerated maturity" dilemma has been in line with the "bankruptcy" provisions of the company bankruptcy reasons,on the basis of which the shareholder capital contribution period expires when the company can not pay off the debts due,according to the provisions of the current law can be resolved in bankruptcy proceedings.Finally,the author argues from the perspective of the comparison of pros and cons that the bankruptcy path has advantages over the "accelerated maturity" of shareholders' non-term capital contribution.Also,there are two inherent defects of the "accelerated maturity" system.On the basis of empirical analysis,it is believed that the construction of the "accelerated maturity" system will cause the application of the bankruptcy system in this field to be virtually overhead,so governance in this area is a social policy choice.Therefore,the author analyzes the deep-seated reasons for the application of bankruptcy to solve this problem,and also puts forward two possible solutions to the bankruptcy proceedings.The author thinks that bankruptcy proceedings is the only and optimal practice to solve the problem.