| This paper focuses on the protection of corporate creditors’ interests under the subscription system and consists of four chapters.Chapter one analyzes the forms and causes of shareholders’ defective capital contribution.The author classifies the shareholders’ defective capital contribution into four forms: time flaw,property flaw,capital withdrawal flaw and right flaw.Although every form of expression is all-inclusive,the form of defective capital contribution by shareholders summarized in practice is largely the same,and the author tries to analyze and summarize the most representative ones.Then,the author analyzes the reasons for shareholders’ defective capital contribution,and thinks that what type of capital model should match its basic national conditions,credit system and administrative regulations.From the perspective of the degree of economic transformation in China at the present stage,the excessive emphasis on efficiency does not effectively guarantee the safety of transactions,but in fact,it is easy to induce the distrust of market trading subjects.Therefore,when eclectic capital system is applied,it is necessary to emphasize the relief guarantee of corporate creditors.In addition,at the present stage,the company generally USES the model articles of association provided by the local market supervision and management departments in the registration stage,without a deep understanding of the importance of the articles of association,only for the purpose of registration.However,the market supervision and management department only carries out formal review when reviewing the articles of association of the company at the time of company registration,and does not track whether the subsequent payment is made in full amount on time,which leads to the endless occurrence of shareholders’ defective investment behavior.The second chapter mainly discusses the damage of defective shareholders to the creditors of the company.The author believes that the harm of defective capital contribution is mainly reflected in threeaspects: first,the loss of guarantee function of registered capital when the company is established.Under the subscription system,shareholders provide funds for the operation of the company through a certain period of time.In essence,it is difficult for creditors to distinguish the operation of the company and judge the solvency of shareholders involved in the investment.As a direct result,the realization of creditor’s rights of corporate creditors is highly uncertain.Secondly,when the company operates,it reduces the company’s debt paying and performance ability.The ultimate goal of shareholder contribution is to ensure that the company has sufficient capacity to perform the contract and pay off the debt,and to ensure that the creditor’s rights are successfully repaid.In the case of defective shareholder contribution,the company’s performance ability and debt paying ability are greatly reduced.Thirdly,when the company goes bankrupt and goes into liquidation,the property is insufficient to pay off the losses of creditors.The third chapter mainly analyzes the present situation and difficulties of the creditor’s rights not getting the judicial relief when the shareholder makes the defective contribution.The influence of shareholders’ defective capital contribution on creditors is mainly reflected in the following aspects: passively waiting for the agreed capital contribution period to expire;when the shareholders’ capital contribution period does not expire,they cannot take the initiative to apply for shareholders to bear legal liabilities.However,when the shareholders fail to fulfill the obligation of capital contribution,it is difficult to request the shareholders to bear the corresponding supplementary responsibility and to launch the procedure.Although China’s law stipulates the denial of corporate personality as legal person system,the application of this system is not ideal,and the protection of creditors’ rights is mostly on paper,without any real effect.However,to apply the bankruptcy procedure to protect the legitimate rights and interests of creditors,there are many problems,such as long cycle and complicated procedures.Moreover once enters the bankruptcy procedure,the creditor’s rights are very difficult to obtain the safeguard completely.Based on the analysis of the above limitations,the author believes that there are both reasons for inadequate theoretical preparation and institutional limitations for incomplete and non-specific legal provisions in the aspect of requiring defective shareholders to fully perform their contributions to protect the rights and interests of creditors.In view of this,the author puts forward the corresponding improvement measures in the fourth chapter.Chapter four puts forward the Suggestions of the creditor’s judicial relief when the shareholder makes defective capital contribution.Firstly,the responsibility system centering on "safeguarding the independent corporate personality and the limited liability of shareholders" should be changed,and the responsibility system centering on "safeguarding the legitimate creditor’s rights of corporate creditors" should be established.Under the guidance of this concept,this paper analyzes how to provide the creditor with judicial relief under various circumstances.In view of the time defects of shareholders’ investment,we can solve them by introducing the mechanism of accelerating the maturity of shareholders’ investment,the principle of deep stone and the measures to improve shareholders’ loss of shares.In view of the defects in the property contributed by shareholders,it can be corrected by setting up the creditor’s lawsuit,restricting shareholders’ rights and interests and improving the company’s withdrawal mechanism.In view of the situation of shareholders’ withdrawal of capital contribution,different judicial relief measures should be taken on the basis of distinguishing general withdrawal from serious withdrawal.The principle of "supplementary liability" should be applied to the general escape behaviors,while the serious escape behaviors can be severely punished by introducing the denial of corporate personality. |
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