Legal Research About Unexpired Obligation Of Capital Contribution In Equity Transfer

In 2013,the revised Company Law of China cancelled the requirement of the general company's paid in capital,and the time limit for capital payment was independently stipulated by the articles of association.Since then,it has become a common phenomenon that shareholders have not paid in capital before the expiration of the time limit for subscription.In this context,the issue of equity transfer is becoming more and more complex.Whether the equity transfer is effective,which party of the equity transfer should bear the obligation of capital contribution,and how to determine the liability of shareholders to creditors.,A large number of these problems arise in practice,which perplex the judges and bring great challenges to the capital system and equity investment market of the company.Through the study of above problems,this paper attempts to clarify the relationship among the company,the creditor and both shareholders in the share transfer under the the system of company capital subscribed.It puts forward the principle and exception of the obligation burden of capital contribution in the share transfer.It also points out that there is contradiction between the shareholder responsibility system and the goal of the reform of the the system of company capital subscribed,and how to guarantee the creditor's legal rights under the premise of ensuring the liberalization of equity transfer.The first chapter mainly discusses the legal attributes of the unexpired equity transfer.The system of company capital subscribed endows the shareholders with the term interest of capital contribution,which should be recognized as long as the shareholders do not violate the agreement of capital contribution or evade the obligation of capital contribution.The company's personality independence and shareholder's right of disposition of the equity are not affected by the insufficient paid in capital contribution.The equity can be transferred legally and effectively.The second chapter combs the different views on the burden rules of the obligation of contribution to be paid after the equity transfer in the academic and judicial practice.After summarizing and analyzing the shortcomings of each single point of view,the paper puts forward that the core of the capital system reform is to relax capital control and stimulate market vitality.If the transferring shareholders are required to bear the capital contribution unconditionally after leaving the company,the liquidity of equity will be weakened,which is not consistent with the purpose of legislation.However,it is difficult to guarantee the capital adequacy of the company and the security of market transactions if the completely free transfer of equity is allowed.On this basis,the third,on the subject of the obligation of capital contribution after the transfer of the unexpired equity,puts forward a point of view that both parties to the transfer are allowed to arrange freely on the obligation of capital contribution;the company's right of request for capital contribution takes the transferee of equity as the object in principle,unless the company recognizes the special agreement between shareholders.However,it is an exception for shareholders who evade the obligation of capital contribution and damage the legitimate rights and interests of the company,other shareholders and creditors of the company by using the subscription period.After the transfer of equity,special rules of liability should be followed.The fourth chapter discusses the relationship between the transfer of equity by shareholders and the protection of creditors.The externality of the company's capital is actually the performance of the guarantee function to company's debt.In essence,itcauses the creditor to take the shareholder's credit as the important basis of the company's credit,which violates the original intention of the legislation of property segregation in the Company Law.In order to stimulate investment and regulate market transactions,the construction of Asset Credit System will become the direction in the long-term development of company law.Under which the obligation of capital contribution is decoupled from the function of debt guarantee.And it follows the principle of freedom of equity transfer and autonomy of will.