The Research About The Capital Contribution Responsibility After The Equity Transfer Of Shareholders

After the reform of the capital subscription system in 2013,the transfer of unpaid capital contributions within the subscription period became more common,which made the complicated equity transfer issues more controversial.One of the most prominent issues is the issue of capital contribution responsibilities after the transfer of unpaid capital contributions.The unpaid capital contributions mentioned in this article include the capital contributions that have not been actually paid at the end of the subscription period and the capital contributions that have not been actually paid within the subscription period.Among them,Article 18 of the "Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the " Company Law of the People’s Republic of China "(3)"(hereinafter referred to as "Judicial Interpretation III of the Company Law")stipulates the issue of the capital contribution liability after the transfer of the equity contribution that has expired.Provisions,and the settlement of disputes over the issue of capital contribution liability after the transfer of unexpired capital contribution equity is still in a legislative blank stage.Due to the lack of laws and relevant judicial interpretations,there is a relatively serious phenomenon of different judgments in the same case in the trial of the above issues in judicial trials.If this happens,it will inevitably have a negative impact on judicial credibility.Based on this,this article first read a large number of cases and sorted out relevant basic data.On this basis,statistics formed a statistical analysis chart of the number of cases in different judging years,a distribution table of opinions on the transferee’s informed judgment,and a A statistical analysis chart of the judgment results of the assignor’s liability after the transfer of capital stock rights,a statistical chart of the understanding of the failure to perform or fully perform the capital contribution obligations of different levels of courts,and a statistical analysis table of the judgment reasons for the determination of malicious transfer.The above statistical chart clearly reflects the following problems existing in current judicial practice.One is that the court protects creditors to a higher degree in the judicial trial process,and even to some extent,this protection is achieved by sacrificing the rights and interests of the assignee.Second,there is a dispute over whether the applicable object of Article 18 of the "Company Law Judicial Interpretation III" includes the transfer of unexpired capital contributions.The dispute on the basis of responsibility for the subject of capital contribution after the transfer of unexpired capital contribution equity is fierce.The third is that there has not been a consensus on the issue of capital contribution responsibility after malicious collusion in the transfer of equity.At present,courts often use the transferee’s behavior after the transfer of equity to infer the subjective status of the transferee.The court found that the reason for the transferee’s knowledge was mainly that the corporate credit information system had publicized the company’s actual capital contribution,and the transferee could find out the actual capital contribution of the assignor through inquiry.However,this reason ignores the fact that in practice,companies often fail to publicize paid-in capital in accordance with regulations,which is extremely detrimental to the protection of assignees.This can improve the corporate credit information disclosure system and protect the rights of transferees by publicizing the list of business abnormalities on multiple platforms and improving disciplinary measures.This can improve the applicability of Article 18 of the "Company Law Judicial Interpretation III".Regarding the issue of capital contribution responsibility after the transfer of unexpired capital contribution equity,this article first distinguishes between the obligation of subscription and the obligation of actual payment.The subscription obligation can be transferred to the assignee along with the equity transfer.Therefore,after the unexpired capital contribution equity is transferred,the subscription obligation should then be actually performed by the assignee,and the capital contribution responsibility after the expiration of the subscription period will be vested accordingly To the assignee.Although the assignor does not need to perform the obligation of actual payment and assume the responsibility of capital contribution,it does not mean that it is exempted from all responsibilities.The theoretical basis of its responsibility lies in the shareholders’ limited liability,the principle of capital maintenance,and the requirements for the protection of creditors.This article proposes to construct the responsibility system of the previous transferor and clarifies that this responsibility is a supplementary responsibility.After analyzing the issue of capital contribution responsibility after malicious collusion in the transfer of equity,this article believes that how the transferee’s actual ability to make capital contributions is the key factor in determining whether the two parties to the equity transfer are malicious in collusion.Based on this,this article proposes to create a preventive system for malicious collusion transfer of equity,requiring both parties to the equity transfer to submit the transferee’s credit certificate to the company.The company needs to notify the creditor before applying for change registration,and provide the creditor to check the transferee’s credit certificate.to offer comfort.If the creditor believes that the transferee does not have the actual ability to make capital contributions,it may request the company to provide guarantees or pay off the debts in advance.This system helps prevent equity transferors and transferees from maliciously colluding to transfer equity in order to achieve the purpose of evading liability for capital contributions.Regarding the issue of malicious collusion in the transfer of equity,this article believes that the malicious collusion rules in civil law should not be applied,but should be analyzed based on the concept of increased liability in commercial law,and it is clear that the transferor and transferee of malicious collusion in the transfer of equity should bear joint liability.