| In 2013,the company’s capital system underwent a reform from a paid-in system to a fully-subscribed system.The reform abolished many restrictions on capital contributions when the company was established,such as the period of capital contribution,minimum capital contribution,capital verification procedures,and so on.All the time,this revision has received attention and discussion from academic circles and judicial practice circles.The problems exposed can be attributed to: the capital contribution has been deregulated,but the corresponding supporting measures during the business phase to restrain shareholders from fulfilling their capital contribution obligations was lacked.It leaves a high risk of "subscribing but not paying",which greatly hinders the sound development of the commercial society,the company’s business development and the realization of the interests of creditors.Before the reformation,the "Judicial Interpretation of the Company Law(3)" had made provisions on the accountability of shareholders for non-fulfillment or incomplete performance of their capital contribution obligations.However,time has passed,and the provisions of the judicial interpretation still have a certain gap when they are adapted to the full subscription system,and the legal interests cannot be fully protected.In 2019,the Supreme People’s Court issued the "Minutes of the National Court Civil and Commercial Trial Work Conference"(hereinafter referred to as the "Jiu Min Minutes"),which established the accelerated expiration of litigation and the accelerated expiration of bankruptcy in the form of principles and exceptions.The circumstances of the accelerated expiry of non-bankruptcy are not elaborated.It is very important to establish a reasonable and operable restraint mechanism for shareholder capital contribution as a supporting measure of the full subscription system.Therefore,this article focuses on the company’s capital payments calling system.The first chapter is the reason of the capital payments calling system,mainly expounding the background and the problems to be solved.First of all,this chapter outlines the deviation between the original intention of the full subscription system and the implementation results.Not only the subscription system unable to achieve the company’s flexible fund-raising purpose,but also the company lose the initiative to raise funds during the operation stage.The supporting measures that are compatible with the subscription system are necessary to correct this deviation and realize the original intention of the system design.Secondly,this chapter attempts to solve an important question in this part: Does the capital of the company constituted by shareholder capital under the subscription system still play an important role in the company? If the capital no longer assumes the corresponding function,there is no need to call for payment to restrain shareholders from fulfilling their capital contribution obligations.After affirming the usefulness of capital,this chapter finally expounds the system risk of non-fulfillment of contribution obligations.Whether from the perspective of internal operation or creditor protection,shareholders as a rational broker can easily take advantage of the loopholes in the subscription system and evade capital contribution,which will cause financing difficulties for the company.The capital payments calling system came into being under this background.The second chapter discusses the legitimacy and necessity of the capital payments calling system from both theoretical and practical levels.First of all,this chapter discusses the theoretical legitimacy of the capital payments calling system from four aspects: the balance of multi-party interests,the internal autonomy of the company,the limited-term benefits enjoyed by unexpired shareholders,and the construction trend of institutional credit.Secondly,this chapter uses 15 judicial cases that focus on surrender as the starting point to demonstrate the necessity of constructing a surrender system.By summarizing the different views of the courts on similar issues,this chapter believes that there have been disputes surrounding the call for payment in reality,but the courts lack a unified view on the details of the call for payment.Therefore,it is necessary to establish a capital payments calling system through legislation.The third chapter gathers a legislative experience collection of the United States,Japan and the United Kingdom as a comparative law study.These countries have established a capital payments calling system for a long time.Among them,the director’s exemption part in the Delaware Corporation Law of the United States is particularly eye-catching;the reform path of 2005 "Company Law" of Japan is similar to China’s,which relaxed the control of the establishment of a company.The British company law provides for two calls,which are relatively rare in other countries’ systems.Chinese "Company Law" has not yet established a capital payments calling system,and absorbing the institutional experience in the comparative law that is compatible with my country’s business environment is the preparation for the implementation of the exploration.The fourth chapter is the concrete construction plan of the capital payments calling system.“From which aspects to build the framework of the system” is the first problem to be solved.The basis for selecting the key points of this chapter comes from: 1.The prototype "Company Law Judicial Interpretation(3)" Article 13,Paragraph 4 and Article 18 provided for us.2.The inconsistencies of the court’s views and the weaknesses of legal provisions in Chapter II.In the end,this chapter selected four aspects: the subject of call,the circumstances of call,the procedure of call,and the consequences of call.The detailed designs are carried out in the fourth chapter. |
