Research On Accelerated Maturity Of Shareholders' Capital Contribution Obligation Under The Subscription System

Since March 2014,our country has formally implemented a shareholder subscription system,it has the advantages of stimulating investor enthusiasm,promoting market competition vitality,playing a role of supplementary financing to and so on.However,the accompanying disadvantages cannot be ignored.For example,shareholders use the subscription capital system strategically and set a high amount of registered capital to gain the trust of counterparties.When the company is unable to settle its debts,it argues that the subscription period has not expired.In addition,in practice,many companies have subscribed for capital contributions for periods of up to 20,30,or even 99 years.When the company is unable to settle its due debts,the existing legal system,including the denial system of legal personality,bankruptcy procedures,creditor's right of revocation,and corporate information credit system,cannot provide effective protection for creditors.As a result,the difficult question of judicial application "whether the shareholder's contribution obligations can be accelerated to maturity when the company cannot pay its due debts" has been debated in the practical and theoretical circlesThe system of accelerated maturity of shareholders' contribution obligations is justified and reasonable.First,this is the connotation of the company's capital system The shareholders' contribution obligation is statutory,and when the company fails to settle its due debts,it is reflected that the shareholder loses the term benefits agreed in the capital contribution agreement.Based on the principle of capital maintenance and capital credit theory,the subscribed capital contribution of all shareholders constitutes the company's registered capital,and the counterparty to the transaction has reason to trust that the shareholder shall assume guarantee responsibility for the company's debt within the limit of its subscribed capital contribution.Second,this is the proper meaning of the requirement of equality of rights and obligations.Shareholders enjoy the freedom to subscribe for capital contributions,have the right to receive dividends,voting rights,etc.although do not pay the contributions,and are responsible for the company s debt only to the extent of their subscribed capital contributions.Then,its minimum obligation should be reflected in "the design of the period of subscription of capital contributions by shareholders is premised on the normal operation of the company.When the company encounters operating difficulties and cannot repay its debts,shareholders have the obligation to change the agreement of subscription period of capital contribution.”Third,learn from the Call-up Capital system in the comparative law.Based on the legal principle of“deeming the light of the importance",the company's board of directors can make a call-up resolution based on commercial judgment to accelerate the maturity of shareholders' funding obligations.Obviously,when the company cannot settle its due debts,shareholders should perform their capital contribution obligations in advance.In addition,The Statutory Obligation Theory in US law can also provide a legal basis for the accelerated maturity of shareholders' funding obligations.The judgement criterion of "the company cannot pay the due debts" can be further defined as "there is still no property to execute after exhaustive execution measures".When the company cannot settle its due debts through exhaustive execution measures,creditors can use Article 13(?)of the Provisions of the Supreme People's Court on Several Issues Relating to Application of Company Law of the People's Republic of China(?)as the basis for the right of claim,claiming that shareholders who has not yet expired the contribution payment period shall assume supplementary responsibility for the company's debts within the scope of their unpaid investment.If there is a transfer of equity after the company's debt is formed,the transferring shareholder and the transferee shareholder shall assume supplementary joint and several liabilities within the scope of unpaid capital contribution.After the shareholders have settled the debts of the creditors,they shall not claim the right of recovery from the company.However,if the excess of the responsibility is settled,the shareholders may seek recovery from other shareholders who have not yet paid contributions.