On The Supplementary Liability Of The Equity Transferor

According to the query in alpha database,by the end of 2021,561983 cases involving equity transfer could be found.There are all kinds of industries,especially in manufacturing and construction.After the reform of the corporate capital system,the restrictions on initial capital contribution,registered capital and payment time have been officially lifted,and there is no need to implement legal capital verification.As the above changes take place,the paid-in system has been abolished and replaced by the subscription system.The paid-in system has withdrawn from the development stage and replaced by the full subscription system.The enthusiasm of the majority of investors has been effectively released,the market has the vitality of entrepreneurship and innovation,and the company’s access has decreased.However,it should be noted that modern society has not built a perfect integrity system,coupled with the lack of market supervision,and has not taken good supporting measures in safeguarding the interests of creditors.The implementation of full subscription system can bring convenience to shareholders’ capital contribution,but the rights and interests of creditors are also vulnerable to infringement.Before the capital contribution period specified in the articles of association is reached,the equity transferor transfers the equity in time,but the due debts cannot be paid off through the company’s capital.At the same time,the equity transferee fails to fulfill the obligation of capital contribution.How should the creditor seek legal protection and whether it can make a request to the court,Let the transferor use the unfunded part to compensate the transferee for the unfulfilled responsibility,which is the focus of this paper.This paper is divided into four parts.The first part is theoretical research and analysis.The collected documents are related to the responsibility of capital contribution for overdue equity transfer,including works,papers,judicial decisions,etc.After combing the literature,it is learned that due to the implementation of different subscription systems,the judge’s judgment ideas are different in the face of who should bear the capital contribution responsibility after the overdue equity transfer.When studying this issue,scholars choose different legal basis and put forward different opinions when sharing the responsibility of capital contribution.The main focus of dispute lies in: 1.Can Article18 of the third judicial interpretation of the company law continue to apply.;2.Whether the bankruptcy system can properly solve the problem of capital contribution responsibility sharing;3.Whether to distinguish the sequence of creditor’s rights and debts and equity transfer.The second part explains that the existing laws and treatment methods can not properly solve the problem of capital contribution responsibility sharing.Through an in-depth analysis of Article 18 of the judicial interpretation(III)of the company law,it is found that the current law of our country does not provide whether the transferor should bear supplementary liability,and there is a lack of articles of law.Several cases introduced in the first part of this paper agree that the supplementary liability should be borne by the transferor,but the judge only refers to Article 18.Through the study of Article 18,the author found that the problems discussed in this paper are not applicable.If this law is adopted,it will lead to errors.In addition,after combing other articles of the company law,it is found that no article of the company law is fully applicable to this situation.It can be seen that there are blind spots in the current law in the process of dealing with this problem.The third part mainly discusses the necessity of the transferor to undertake the supplementary liability.It aims to analyze from three perspectives: protecting creditors,safeguarding corporate capital and ensuring environmental equity.Under the background of the full implementation of the subscription system,in practice,we should not only protect the interests of creditors,but also pay attention to integrity,but also follow the principle of capital enrichment.This paper points out that requiring the transferor to bear supplementary liability can not only find sufficient reasons,but also have strong significance.In the process of implementing the subscription system,it realizes the innovation of the principle of capital enrichment and can effectively protect the interests of creditors.In the fourth part,in view of the positive attitude of most courts and the fact that they can find a legal basis for the transferor to bear the supplementary liability,but because there is no sufficient basis in the current legal provisions,it is necessary to learn from the German company law and make provisions on the supplementary liability for overdue investment from the institutional level,which plays a leading role in the current legislative construction,Promote the stability of capital market transactions with the implementation of subscription system.First of all,the responsibility borne by the transferor is a supplementary responsibility with sequential interests.The transferor can bear it only when the transferee is unable to fulfill the obligation of capital contribution.Secondly,whether there is corporate debt before or after the equity transfer,the supplementary responsibility should fall on the transferor,and the German company law makes the same provisions.The transferor and the transferee need to sign an agreement for equity transfer,in which they should make an agreement on the responsibility of capital contribution.As long as the external effect does not exist,they can take this Agreement as the basis for recovery.In judicial practice,when the court delimits the responsibility for the transferor and the transferee,if the shares held by the transferee are controlled within the scope of capital contribution principal and interest,they are the bearers of supplementary liability.If the transferee cannot perform this responsibility according to law,they should be borne by the transferor.In order to coordinate the interests of different assignors,assignors and creditors,we should safeguard the interests of assignors through legal provisions.For the transferor,although it should bear the supplementary liability,this liability cannot be borne indefinitely.In this regard,we can learn from the German company law.If the transferor comes from a limited liability company,its supplementary liability only needs to continue within 5 years of the transfer.If the transferor comes from a joint stock limited company,this period is shortened to 2years.The making of this provision forces the transferor to undertake the obligation of capital contribution,and can also safeguard the legitimate rights and interests of the transferor.The subscription system introduced in this paper will be more reasonable.The implementation of subscription system in China is conducive to the integration with the international mainstream trend.At present,various countries are trying to reform the capital system to prepare for the development of market economy.Innovation and entrepreneurship have been supported at the national level.In this case,the interests of market creditors should be protected.Some problems have surfaced,but as the legislation has not yet made provisions,it is necessary to conduct research and analysis in time to supplement the legal gap.Only in this way can the subscription system truly reflect its value.