Research On Corporate Capital Call System Under Capital Subscription System

The capital subscription system reform no longer imposes restrictions on the minimum registered capital set up by companies,and no longer imposes mandatory limits on the period of capital contributions subscribed by shareholders,which has promoted the development of the market economy to a certain extent and reconstructed the legal relationship between the government and the market.However,it has also caused frequent occurrences of shareholder improper performance of capital contribution obligations,and the company’s significant shortage of paid-in capital has become prominent.Legislative regulations urgently need to explore how to find a better balance between shareholder autonomy and creditors’ claims.In the context of increasing attention to asset credit,the formation of a comprehensive capital call-up system is conducive to forcing directors to assume the call-up responsibilities,urges shareholders to standardize their capital contributions and actually pay the shares in place,and dffectively link the subscribed and paid-in phases.It is quite necessary to improve the supporting payment system under the subscription system.First of all,the company has the subjectivity,legally independent personality and the ability to assume responsibility.However,the company is also the object of shareholder investment,which enables shareholders to use their membership to influence the realization of the company’s capital contribution claims in practice.Therefore,it is necessary to give full play to the company’s autonomy,improve the rules of capital demand within the company,and force the company’s capital to be enriched through liability regulations.Secondly,the shareholder’s capital contribution obligation has a mixed nature of statutory and agreed obligations.The statutory nature stems from the fact that the amount of its subscribed capital has been registered in the administrative agency,which means that its capital contribution is not absolutely autonomous,and the publicity and credibility based on registration is legally mandatory.Thirdly,in terms of legal theory,directors must act actively based on their diligence obligations,perform their duties carefully and prudently manage company affairs,and call for shareholder capital contributions on behalf of the company should fall within the scope of diligence obligations.Finally,the capital subscription system gives shareholders the protection that they bear limited liability and can pay their capital contributions in installments.This means that creditors will bear greater risks when trading with the company,and the company’s credit foundation is showing a trend from capital credit to asset credit.As the information between creditors as an external third party and the company is asymmetric,it is particularly important for companies to strengthen the supervision of their own assets,so as to provide creditors with more effective protection.Examining the capital call-up system in China’s current company law,both in terms of substantive and procedural provisions are relatively rough,and there are certain problems.In terms of substantive regulations,the subjects of the call on behalf of the company are not uniform,and the application of call is relatively narrow.In terms of procedural regulations,the method of the company’s litigation call is clarified,but for the company’s internal call,the words "recall" and "remind to pay" are only used,which is not detailed enough.Regarding the shareholder’s liability of "recalling but not paying",it is clarified that non-compliance shareholders shall be liable for damages to the internal company,the liability for breach of contract to other shareholders,and the supplementary liability for the creditors externally.And the company can "bundle restrictions" on shareholders’ profit distribution claims and other self-interest rights with their capital contributions.However,the scope of restriction does not include the voting rights in the shareholders’ common-benefit rights.The entry threshold for shareholder delisting is high,the procedures are rough,and the application of legal consequences has no priority.When a director "should be urged but not urged",he has a"corresponding responsibility" in the company’s capital increase stage.The breakthrough of this provision is reflected in allowing creditors to directly cross the barrier of the company to hold directors accountable.However,it is doubtful whether the allocation of responsibilities between directors and shareholders is supplementary liability or joint liability.In terms of the responsibility situation,only the responsibilities of the directors when increasing capital are clarified,but no regulation is made during the establishment and existence of the company.In the case of extraterritorial legislation that allows company capital to be paid in installments,it is often accompanied by a mature capital call-up system.Japan’s director system at the time of establishment clarified the director’s supervisory responsibility for the company’s capital.The company laws of the United States,the United Kingdom,and Germany all involve the substantive and procedural provisions of capital calls.Although extraterritorial law is rooted in the soil of other countries,learning the thoughts and concepts contained in it,combining with China’s national conditions,and introducing and transplanting them in a reformed manner will make up for the shortcomings of China’s current system.In terms of the substantive provisions of capital calls,the board of directors should be the legally eligible subject for capital call,established by legislation through mandatory regulations,and improve the specific application situation of capital call.In terms of the procedural requirements for capital calls,the company’s internal capital call is used as a pre-procedure for litigation calls,and the call notice is clearly delivered in writing.The notice should specify the amount of stock payment to be paid by shareholders,the performance period,and the consequences of overdue.In terms of shareholder responsibilities,shareholders should pay interest for delayed performance after the call.If the call cannot be made,the restricted scope of shareholder rights must be expanded to the common-benefit right of voting rights,and non-proportional equity such as the right to know should not be restricted.At the same time,the rules for shareholder delisting should be refined.In terms of directors’ responsibilities,expand the circumstances under which directors assume responsibility.The directors shall bear the obligation to call for payment from the day of being elected.The negligent director and the shareholder who violated the capital contribution obligation shall jointly and severally bear the supplementary liability for the company.At the same time,improve the judgment standards for directors to perform the obligation of calling for payment.