Theoretical Basis And Rule Construction Of The Company’s Director’s Capital Call-up System

China’s corporate capital system has experienced a reform process from the paid-in registered capital system to the incomplete subscription system,and then to the full subscription system.Compared with the first two capital payment systems,the full subscription system gives the company greater autonomy,which is of positive significance in encouraging investment,activating market subjects and breaking the long-standing superstition of market on capital.However,the full subscription system also induces many risks.For example,the uncertainty of the term of shareholders’ capital contribution leads to the plight of the company in the shortage of funds,and the interests of creditors and other shareholders will be damaged by the non payment of individual shareholders.In view of the institutional risks existing in the full subscription system,if there is no corresponding supporting system to deal with,it will inevitably lead to frequent investment disputes in the future and threaten the economic efficiency and market transaction security.In China’s current company law system,the main paths to urge shareholders to fulfill their duty of contribution are accelerated maturity of bankruptcy and accelerated maturity of litigation.However,these two paths are not the best way to deal with risks.The former has many disadvantages and negative effects in application;The latter is controversial because it has no legal basis.Therefore,it is necessary to find another institutional response to solve the dilemma of the application of the existing path on the basis of adhering to the legitimacy of legal principles and conforming to policies.Through the comparative study,it is found that the countries that implement the capital installment payment system are supplemented by the supporting company call-up system.The effective corporate capital call-up system,by giving the internal organs of the company the power to urge shareholders to fulfill their duty of contribution,not only coincides with the original intention of the capital system reform to ensure corporate autonomy,but also meets the needs of institutional risk response after the reform.In our country’s company legal system,although we can find some provisions on the company’s capital call-up,there are disadvantages of single application and general content.The imperfection of the rules directly leads to the difficulty in solving the disputes and difficult problems in relevant cases.It is urgent to establish a standardized corporate capital call-up system in China.The paper consists of four chapters,including why to establish the company’s capital call-up system,why the directors are the legal subject of capital call-up,how to judge whether the directors fulfill the capital call obligation and what kind of responsibility the directors shall be assumed when they fail to fulfill the call-up obligation,so as to make suggestions for the rule construction of the company’s director call-up system in our country.The first chapter discusses the necessity of standardizing the company’s call-up system.The risks brought by the full capital subscription system put forward an urgent need for the establishment of supporting systems to supervise shareholders to perform their duty of contribution.The existing accelerated maturity of bankruptcy and accelerated maturity of litigation have their own limitations,and it is difficult to effectively urge shareholders to fulfill their legal duty of contribution.Corporate capital call-up system has unique value in dealing with the institutional risks of full subscription system.China’s corporate capital call-up system has not been established,there are a few rules are not perfect,and the dilemma of judicial judgment is prominent.Based on the above situation,it is necessary to establish and improve China’s corporate capital call-up system.The second chapter discusses the legitimacy of the company’s directors as the legal subject of capital call-up system.It is reasonable for the board of directors to act as the subject of call-up from the perspective of the establishment of the subject of call in foreign company law and the corporate governance structure of our country.The directors’ obligation of capital call-up belongs to the scope of directors’ duty of diligence,and in the event that the company cannot pay off its debts,the directors also have the obligation of call-up to the creditors of the company,and the creditors of the company have the right to require the directors to makes call to the shareholders who fail to fulfill their obligation of capital contribution.The third chapter discusses the standards and requirements of directors’ capital call-up obligations.In principle,the criteria for determining whether the directors have fulfilled their capital call-up obligations shall be distinguished between internal directors and external directors,and the objective criteria and subjective criteria shall be applied respectively.Specifically,in the call-up decision-making stage,the business judgment rules can be used to examine the rationality of the directors’ call-up decision-making;In the implementation stage of call-up,we can draw lessons from the legislation of the United States,Britain,Germany and Japan,and formulate corresponding call-up procedures based on China’s capital system and legislative status.The fourth chapter discusses the responsibility of directors for failing to fulfill call-up obligations.The nature of directors’ failure to fulfill the obligation of capital call-up belongs to tort,and the "three elements" standard is applicable to the constituent elements of the act,namely damage,fault and causality.In the distribution of the burden of proof,the defendant’s directors bear the burden of proof for their own call-up obligations,and can appropriately reduce the requirements of the probative force of causality.In the form of liability,there is a dispute between unreal joint liability and replenish liability.Comparing the legal effects of the two forms,it can be seen that the latter is a more reasonable and economic form of liability in the case of directors’ failure to fulfill their call-up obligations,and the scope of liability is determined by the degree of directors’ fault and the closeness of causality.