On The Responsibility Of Capital Contribution After The Unexpired Equity Transfer

After the actual payment system was changed to the subscription system and the legal provisions of "free capital contribution period" made the transfer of "unexpired equity" pay attention.Because the new judicial interpretation does not specifically specify the issue of liability for capital contribution after the transfer of equity in the next term.In order to properly solve the above problems,first of all,this paper analyzes the relevant judicial judgments and theoretical literature on the responsibility for capital contribution after the transfer of equity in the first term.It is found that under the subscription system,different judges should bear the responsibility for capital contribution after the transfer of equity in the term.Judgment thinking is not the same,and shows five different modes of responsibility.The theoretical analysis of this issue also shows that the applicable legal basis is different,and the sharing of funding responsibilities is inconsistent.The main points of dispute are:1.Whether Article 18 of the Judicial Interpretation ? under the subscription system can continue to be applied(extended whether the accelerated maturity system is applicable);2.Whether the bankruptcy system can properly solve the problem of sharing responsibility for capital contribution;3.The liability for capital contribution after the transfer of equity in the next term shall be borne by the transferring shareholder or the transferee;4.Whether the sharing of capital liability shall distinguish the order of creditor's rights and debts and equity transfer.Behind the above dispute is the result of measuring the interests of creditors and shareholders.If the position of preferential protection of creditors is adopted,the shareholders who contribute to the current term will be inclined to let the shareholders who contribute to the current term bear the liability for the defective capital contribution of Article 18 of the Judicial Interpretation ? if the company cannot pay off,or by expediting The term system protects the interests of creditors.To further achieve this purpose,the transferee and transferee shareholders are jointly and severally liable.If the position of giving priority to the protection of shareholders 'interests is respected,and the interests of shareholders' term and withdrawal are respected,after the transfer of equity,the transferring shareholder shall reasonably withdraw,and the responsibility for capital contribution shall be borne by the transferee.The author believes that the interests of shareholders and creditors should be measured and protected.On the one hand,they respect the freedom of contract and protect the shareholders' freedom of capital contribution;on the other hand,they protect the legitimate interests of creditors.Because the contribution obligation is a combination of statutory obligations and agreed obligations.After the equity transfer,the agreed obligations make the transferring shareholder no longer have"shareholder status",and the statutory obligations allow the transferee shareholder to naturally accept the original shareholder's investment obligation,that is,the legal nature of the investment obligation has not changed,but the subject of the statutory obligation is transferred by the transfer Shareholders become transferee shareholders.This article does not agree with Article 18 of Judicial Interpretation? to include "unfunded obligations" in "unfunded or incompletely fulfilled funding obligations",because there are no funding defects in the unexpired period.You can expand at will to solve the current problems.Legal interpretation is not conducive to the stability and consistency of the legal system.This article also does not support the solution of this problem through the path of bankruptcy law.Most scholars who support bankruptcy law only discuss that the single settlement of a single creditor will damage the legitimate rights and interests of other creditors.This is only how the company's bankruptcy property is settled,that is,the "fate"of the property.However,there is still no solution for who should bear the responsibility for the unfunded capital after the equity transfer.This article attempts to construct a relatively reasonable and more adaptive responsibility model.Based on its status as an independent legal person,a limited liability company shall be the principal liability bearer in the first place and shall be liable within the limits of its independent property.If the company is "unable to settle" due debts and meets the accelerated maturity system,creditors can request shareholders to fulfill their capital contribution obligations.Then the transferee shareholder should become the second-ranked investment liability bearer.It is not necessary to consider here that the assignee "knows or should know" in Article 18 of Judicial Interpretation III.However,it does not mean that the transferring shareholder is not responsible,and in some exceptional cases,it should be the subject of third-ranking responsibility.There are two exceptions:First,creditors have a high degree of trust in the transferring shareholder.At this time,the order of transfer of equity and debt and debt should be distinguished.Second,whether the transferring shareholder is malicious.