Legal Research On Equity Transfer In The Unexpired Period Of Capital Contribution

The Capital Subscription System allows shareholders to freely arrange the amount of investment and the period of capital contribution,so shareholders often set a long period of capital contribution while subscribing for capital contribution.Prior to the expiration of the capital contribution period,cases in which shareholders have transferred unpaid equity have started to occur frequently in practice.This type of equity transfer has a capital contribution obligation that has not yet expired,so it is not exactly the same as a common equity transfer that has already been paid in.Also,because the shareholders enjoy the benefits of the capital contribution period under the Capital Subscription System,the shareholders have the right not to pay before the capital contribution period expires.Therefore,the equity transfer in the unexpired capital contribution period is different from the defective equity transfer.At present,there are no targeted laws and regulations to regulate it,so in practice,some shareholders maliciously evade capital contribution obligations or company debts through the transfer of equity in the unexpired period of capital contribution.This kind of maliciously evading-debt type equity transfer will not only adversely affect the company’s normal operations,but also further threaten the company’s creditors’ debt settlement.Therefore,whether to require the transferring shareholder to continue to assume the capital contribution obligation to the company and the additional compensation liability to the company’s creditors after the equity transfer in the unexpired period of capital contribution is the core issue.This issue is fiercely controversial in theory,also there are many courts made different decisions in similar cases.Should we stand on the side of the transferring shareholder and respect the interests of the transferee’s capital contribution period,or stand on the side of the creditor and strive to protect the creditor’s claims.This is not an easy choice.In the transfer of equity in the unexpired period of capital contribution,there are not only the transferee shareholders and creditors,but also the transferee shareholders,the company,and other shareholders of the company.It is extremely difficult to balance interests of all parties.Besides,we must also consider the impact on business society at a macro level and the purpose of the Capital Subscription System.Therefore,the problem is how to maximize the value of the subscribed capital system and respect the interests of the shareholders of the transfer period,while taking into account the protection of the interests of creditors,and seeking the best solution to problem of equity transfer in the unexpired period of capital contribution.This paper studies the equity transfer in the unexpired period of capital contribution through four chapters.First of all,sort out and analyze the status quo and dilemma of the adjudication of equity transfer in the unexpired period of capital contribution in judicial practice;secondly,the paper further discuss the validity of the equity transfer agreement in the unexpired period of capital contribution;thirdly,the subject to assuming the capital contribution obligation after the equity transferred in the unexpired period of capital contribution has been analyzed;finally,the protection of the interests of the company’s creditors in the transfer of equity before the expiration of the contribution period has been discussed.The first chapter mainly defines the connotation of the equity transfer in the unexpired period of capital contribution,and combed the judicial cases,and analyzes the predicament faced by the justice.Firstly,the connotation and the characteristics of the equity transfer in the unexpired period of capital contribution are defined,and it is further compared with the defective equity transfer and the equity transfer that has already been paid for.Secondly,through the review and classification of the court’s ruling opinions in about 30 judicial cases,it was found that in the judicial practice,the decisions of equity transfer in the unexpired period of capital contribution is different though the cases are similar,and the courts have different understandings and applications of laws.The second chapter analyzes the validity of the equity transfer agreement in the unexpired period of capital contribution.Firstly,it analyzes three different theories about the effectiveness of the equity transfer agreement in the unexpired period of capital contribution.Then,under the premise that the shareholders in the unexpired period of capital contribution have the qualifications of shareholders and the right to transfer their equity,and that the shares in the unexpired period of capital contribution are transferable,this article puts forward its viewpoint that the equity transfer agreement in the unexpired period of capital contribution is valid in principle.However,If the transferor makes up the facts of the contribution status,the agreement can be revoked.And the contract is invalid if the transferring shareholder and the assignee maliciously colluded to transfer the equity in the unexpired period of capital contribution to evade the contribution obligation and the company’s debt.The third chapter focuses on the subject to assuming the capital contribution responsibility to the company after the equity transfer in the unexpired period of capital contribution.First of all,it is proposed that the shareholder’s capital contribution and the company’s registered capital under the subscription system still have important significance.Therefore,the main body of the issue ——unpaid equity transfer in the unexpired period of capital contribution ——is to identify the subject to assuming the capital contribution responsibility to the company after the unpaid equity transferred.Secondly,it analyzes the four different theories of the academia about the subject to assume the capital contribution obligation,and puts forward the views of this article on each of them.Finally,this article puts forward and demonstrates point of itself,that is,in accordance with the principle of consistency of rights and obligations,the general rules for the transfer of debts and debts,the necessary exit mechanism for shareholders,and the consideration of multiple transfers and partial transfers of equity,transferee shareholder should assume the responsibility of capital contribution in principle.Though the transferee shareholder is defrauded,the agreement can be revoked,the transferee shareholder still need to assume the responsibility of capital contribution before the agreement be revoked.But the assignee who are defrauded may make an ex post facto claim.The fourth chapter discusses the protection of the interests of the company’s creditors during the equity transfer in the unexpired period of capital contribution.First of all,based on the consideration of the principle of creditor’s trust protection and interest balance,the necessity of creditor protection in the equity transfer during the next investment period has been affirmed.Secondly,the subject of supplementary compensation liability to creditors was identified.According to the principle of subrogation and the principle of commercial appearance,the article considers that the transferee shareholders should be responsible for supplementary compensation.In the case that the equity transfer agreement in the unexpired period of capital contribution can be revoked,the transferee shareholder still need to assume the responsibility before the agreement be revoked.But the transferee shareholder may make an ex post facto claim.Finally,the article discusses how to further improve the protection of creditors in the equity transfer in the unexpired period of capital contribution.Through the introduction of the former rights holder’s liability in German company law,the article proposes that the former rights holder’s responsibility can be introduced to protect the interests of creditors.The rationality to introduce the former right holder’s responsibility is analyzed,and the concrete system construction is proposed.