| Regarding the issue of capital contribution responsibility after the unexpired equity transfer,Article 13 and Article 18 of judicial interpretation(III)of company law have similar provisions respectively: The article has similar provisions: after the transfer of equity that has exceeded the subscription period but "unfulfilled or failed to fully perform the capital contribution obligation",the creditor may request the transferring shareholder to assume supplementary compensation liability for the part of the company’s debt that cannot be repaid,and the informed transferee shareholder and The transferring shareholders shall bear joint and several liabilities.However,whether this clause can be directly applied to the situation of unexpired equity transfer is still controversial.The main point of dispute is that the "Company Law Judicial Interpretation(III)" actually prohibits the transfer of capital contribution obligations,and transfers after unexpired equity transfer The question of whether the shareholder’s capital contribution obligation has been transferred is in an unreliable state.Therefore,the research problem of this article starts from this.The problem to be solved is whether the original shareholder of the company has not actually paid the capital contribution under the background of the capital subscription system,and transfers the equity when the subscription period has not expired.Can you directly invoke the " What are the provisions of the Judicial Interpretation of the Company Law(III)" ? Is the capital contribution obligation subscribed by the transferring shareholder transferred? How to construct the rules for the responsibility of capital contribution after the transfer of unexpired capital contribution equity?This article’s research on the issue of capital contribution responsibility after unexpired equity transfer should be combined with the "Company Law" and the original "Contract Law".The ownership of capital contribution after unexpired equity transfer should implement the principles of commercial appearance doctrine and free equity transfer,with reference to debt The undertaking rules give the company the right to agree to the transfer of equity,and the transferee shareholder shall bear the responsibility for capital contribution;under special circumstances,if the transferring shareholder transfers part of the unpaid capital equity,the equity change registration is not performed after the equity transfer,or the transferring shareholder maliciously transfers equity If the transferee shareholder is unable to contribute capital,the transfer shareholder may be held accountable under certain circumstances.The first part of this paper briefly introduces the main problems of this paper,and puts forward the judicial chaos in legal norms,theoretical research and judicial practice.The second part of this article analyzes the phenomenon of the lack of legal norms on this issue.The research on this issue cannot be applied to the provisions of "Company Law Judicial Interpretation(III)".The application background and mode of thinking of the two are different.The third part of this paper briefly analyzes the judicial cases and theoretical research.The case study found that the judicial judgment on this issue has different standards,and there is a chaotic phenomenon that the transferring shareholder is not required to bear the capital contribution responsibility,the transferring shareholder is responsible for the capital contribution,and the transferring shareholder is conditionally responsible for the capital contribution.In the cases requiring the transferring shareholder to bear the responsibility for capital contribution,most of the courts cited the provisions of Article 13 or Article 18 of the Judicial Interpretation of the Company Law(III)to explain the issue of liability for capital contribution after the unexpired equity transfer;The doctrines of undertaking the responsibility of capital contribution after the equity transfer by the expiry date include the theory of transfer of capital contribution responsibility,the theory of unchanged capital contribution,and the theory of joint capital contribution responsibility.The fourth part of this article combines the thinking framework of the "Company Law" and the original "Contract Law" to rethink the issue of the responsibility of capital contribution after the unexpired equity transfer,and demonstrate that the transferee shareholder is the subject of the capital obligation after the unexpired equity transfer The point of view is that the obligation to contribute capital is transferable.The fifth part of this article constructs the rules for assuming the responsibility of capital contribution after the unexpired equity transfer.In principle,the transferee shareholder is the subject of the capital contribution obligation.Under special circumstances,the transferring shareholder can be held responsible for supplementary compensation.The sixth part of this article makes a comprehensive summary of the full text. |
