| After the reform of the registration system for registered capital subscription,shareholders “recognition but not payment” has become a difficult problem in the process of corporate governance,so it is urgent to establish corresponding capital contribution rules.Compared with the Bankruptcy Accelerated Expiration Rule,the Call-up Rule aims to solve the problem of shareholders’ capital contribution during the company’s existence and preserve the company.Compared with the Accelerated Expiration Rule Before Bankruptcy,it can protect the company’s personality,connecting with the bankruptcy system,so the Call-up Rule is the best capital payment rule at this stage.The construction of a Call-up Rule must address three major issues:who “calls”,how to “call”,and the legal consequences of non-payment after “call”.Firstly,because the adjustment of the Call-up Rule is the internal investment of the company,and the formation of the call-up intention cannot be separated from the judgment of the company’s capital requirements,and the board of directors,as the company’s representative agency,is the most direct carrier of company autonomy,so it should be the board of directors.The introduction of business judgment rules can determine whether the directors have performed the necessary diligence obligations in the call-up decision-making and call-up execution steps.If the directors have not fulfilled the call-up contribution obligations,the company or the company’s creditors can require the directors to bear the joint payment repayment responsibility,causing the company in case of loss,it shall also be liable for damages.Secondly,the application of Call-up Rule should implement the corporate autonomy and distinguish between internal and external relationships.In terms of corporate internal governance,regardless of whether the shareholder’s capital contribution period has expired or not,when the shareholder fulfills its capital contribution obligation should be determined by the company based on its operating needs.In terms of the company’s external settlement of debts,it is important to protect the interests of creditors,but creditors cannot directly act as the reminderbody of the Call-up Rule.The Call-up Rule should be initiated by the board of directors.If the directors of the company fail to perform the call-up duties,the creditors can claim for their negligence.Finally,when a non-payment situation occurs,the company can urge shareholders to fulfill their capital contribution obligations by charging interest to non-payment shareholders,exercising liens on their shares,restricting the exercise of their equity,and applying for mandatory capital contribution claims.On the other hand,if the shareholder still fails to perform the capital contribution obligation after the investment creditor’s rights have been enforced,the company may initiate a power failure procedure to disqualify this shareholder.For the corresponding shares after disqualification of shareholders,the company may internally require other shareholders to subscribe in proportion and re-raise the capital by auctioning or selling off,otherwise it shall reduce its capital according to law. |
