Research On The Transfer Of The Unexpired Capital Contribution Period

In 2013,the reform of the company’s capital system abolished the restriction on the time limit for shareholders’ capital contribution,and the company’s Articles of association can decide the time limit for shareholders’ capital contribution on their own.In practice,the time for shareholders to pay capital contribution as stipulated in the company’s Articles of association is often longer,thus leading to a large number of capital contribution within the period of non-payment of capital or equity transfer phenomenon.The transfer of shares before the term of capital contribution is different from the default of shareholders’ capital contribution,and therefore does not fall within the scope of Article 18,paragraph 1,of the judicial interpretation(III)of the company law.The current company law and its judicial interpretation have no clear provisions on the transfer of the stock right of the unexpired investment term,which causes serious differences between academic research and judicial practice: Can the stock right of unexpired investment term be transferred? Should the transferor be exempted from the obligation of capital contribution to the company after the transfer of the share right before the term of capital contribution? Should the assignee assume a subsequent obligation to contribute? Such issues,due to the academic and judicial different attitudes,resulting in the term of the transfer of shares of capital contribution after the performance of obligations and responsibility to assume the risk of uncertainty.Therefore,it is necessary to further studythe issue,distinguish right from wrong,form a theoretical consensus,improve legislation,guide the Fair Administration of Justice.This paper is divided into four parts: the first part is the transfer of the unexpired capital contribution period under the subscription capital system.In this part,we trace back to the source of the transfer of the unexpired capital contribution period,as a result of the capital subscription reform,the capital contribution period is completely regulated by the Articles of association,which enlarges the autonomy of the shareholders’ will,and the shareholders enjoy the benefits of the capital contribution period during the capital contribution period,the transfer of shares within the term of capital contribution is completely legal.The second part of the term of the capital contribution of the transfer of the legislative review.In this part,the author expounds the attitude of the legislation of each country to the transfer of the stock right in the unexpired period of capital contribution from the two kinds of legislation examples which allow the transfer of the stock right in the unexpired period of capital contribution by the articles of association,and the system arrangement of the transfer of the unexpired capital contribution period.After investigation,it is found that the company laws of Germany,Italy,Britain,South Korea and the United States do not restrict the transfer of the shareholders’ shares of the unexpired capital contribution period,and based on the joint venture nature of the limited liability company,to allow the articles of association to authorize the transfer of shares with unexpired capital contribution period to set a limit.The study on the legislation of the transfer of the unexpired capital contribution period has laid a foundation for the further study.The third part is the analysis of the judicial judgment on the capital contribution liability after the transfer of the unexpired capital contribution period.This part summarizes three kinds of judgment opinions through 10 typical case analysis: One is that the assignor is exempt from the liability of capital contribution;the other is that the assignor and the assignee are jointly liable for capital contribution;and the third is that the assignor is liable for capital contribution through the provisions of the statute.There are three kinds of judgment opinions in the same case,which indicate thatthe theoretical basis of the judge’s judgment in different cases is different and needs to be clarified urgently.This article agrees with and supports the first opinion.Because the opinion insists that the contribution is the shareholder’s responsibility,the transferor loses the shareholder’s qualification because of the transfer of shares,and also no longer assumes the corresponding contribution responsibility.In addition,this article emphasizes that "unfunded contribution" is quite different from "unfunded contribution or incomplete performance of contribution" in Article 18 of the judicial interpretation(3)of the company law.The fourth part is the theoretical analysis of the capital contribution liability after the transfer of the unexpired capital contribution period.In this part,the author first comments on the two viewpoints of "the maintenance of the assignor’s contribution liability" and "the continued acceptance of the assignee’s contribution liability" and their reasons,and holds that the second viewpoint is reasonable and worthy of approval.Secondly,it reveals the theoretical basis and practical basis behind the theory of "the assignee’s liability for capital contribution".This paper holds that the stock right of the limited liability company is special and represents the status of shareholders with rights and obligations.The transfer of stock right means the transfer of the rights and obligations of the shareholders.According to the principle of the consistency of rights and obligations,the transferee is entitled to the shareholders’ dividends and must fulfill the subsidiary capital contribution obligations.This paper holds that the nature of the liability of the assignee and the assignor should be strictly distinguished.The transferee assumes the obligation of capital contribution following the qualification of the transferor,while the transferor’s capital contribution which will come due in the future belongs to the promoter’s capital enrichment.