| After the reform of China’s corporate capital system to a fully subscribed capital system in 2013,shareholders were neither limited to pay the minimum registered capital nor bound by a two-year payment deadline when establishing a limited liability company.The fully subscribed capital system not only lowers the threshold for establishing a company,but also reduces the protection of company creditors.Shareholders are entitled to the benefits of the capital contribution period in accordance with the law,and are not required to pay subscribed but unpaid capital contributions before the expiration of the capital contribution period.When a company is unable to repay its debts,whether shareholders who have not yet made their capital contributions in advance determines the survival or death of the company,and determines whether the matured debts of the company’s creditors can be repaid.The current law only stipulates that shareholders can be forced to make early capital contributions in the event of company bankruptcy and liquidation.Whether shareholders should be required to fulfill their capital contributions in advance before the company enters bankruptcy or liquidation proceedings is known as the "forcing shareholder to contribute in advance" and has quickly become a research hotspot,with considerable controversy in the theoretical community;In judicial practice,different courts also hold different views.Based on frequent practice and practical needs,the minutes of the meeting issued by the Supreme People’s Court in 2019 conditionally open the mandatory shareholder advance investment rule,and the two draft amendments to the Company Law issued by the Standing Committee of the National People’s Congress respectively in 2021 and 2022 also fully open the mandatory shareholder advance investment rule,which is ready to be passed and take effect at any time.However,the provision in the revised draft for accelerating the expiration of shareholder contributions is only a single clause,which is too simple and does not specify the differences between company requests and company creditor requests,making it difficult to operate.How to enrich the institutional connotation of forcing shareholder to contribute in advance and how to construct it in a specific way has become an urgent task.However,the current research methods,practical application and upper system concept hinder the effective construction of the forcing shareholder to contribute in advance.Specifically,they are: the non-effective ranking of the existence theory before the construction theory,the inability of legal doctrine to clarify the rules of forcing shareholder to contribute in advance,and the overcorrection of the corporate capital system concept.As a solution,this paper takes the legislation theory as the research paradigm,pays attention to the arrangement of the interest structure,takes the protection function of corporate capital as the idea,and gives the justification of the system in each process of the benefit structure analysis,normative logic analysis and specific rule design of the constructional theory of accelerated maturity of shareholders’ investment.The rule of forcing shareholder to contribute in advance has a complex interest structure.There is not only direct relationship between the company,the company’s creditor and the shareholder,but also the indirect interest relationship between the directors,creditors of the shareholders,other shareholders of the company and other creditors of the company.Indirect interest relationship influences the construction of the rules of forcing shareholder to contribute in advance from a subtle point of view,but direct interest relationship directly determines the type framework of the rules of forcing shareholder to contribute in advance and influences the direction of research on a macro level.Therefore,it is necessary to make a preliminary value judgment on the relationship of direct interests.We should change the situation of ignoring the survival interests of the company for a long time and pay attention to them.Because the creditors face many risks from the company,the company law should give priority to protect the creditors of a company.The shareholders’ interest in the term of investment is both legal and contractual,but it is not absolute protection,so it should be appropriately restricted and the shareholders should be prohibited from abusing the term interest.The normative logic of the forcing shareholder to contribute in advance lies in that the interest conflicts among the direct interest subjects produce three specific types: internal accelerated maturity,external accelerated maturity after internal acceleration,and external accelerated maturity without internal acceleration.Different types of accelerated maturity of investment have different accelerating objects and legal basis.The object of accelerating the maturity of internal investment is the investment obligation.The legal principle is that when the company’s survival interests are damaged,the shareholders’ interest in the investment period is relieved.The object of external accelerated maturity after internal acceleration is the liability of capital contribution,and the legal principle lies in the trust protection to the creditors of the company.The object of external accelerated maturity without internal acceleration is the obligation of capital contribution.The legal principle is that if the company is lazy in exercising its rights,the creditors of the company can exercise them by subrogation.The purpose of the system of forcing shareholder to contribute in advance is to implement the protection function of the corporate capital system and effectively balance the interests of various subjects.It is different from the denial system of corporate legal person and the system of director’s call,and should be regarded as an independent system within the company law.When designing the rules of forcing shareholder to contribute in advance,it is worth noting that the particularity of multiple types determines the existence of special rules in accelerated maturity.First,the startup rules.According to the legal basis of the acceleration of maturity of different types of investment,the startup standard of "the company cannot pay off the maturing debt" is also different.The board/director who grasps the operating information of the company is more suitable to be the initiator of the internal accelerated maturity.Second,the rules of effectiveness.Different from the internal accelerated maturity,the legal effect of external investment accelerated maturity has deep value judgment: in order to protect the repayment interests of individual creditors,the shareholders without a term of investment period should directly pay off the creditors of the company.If the shareholder refuses to perform the internal accelerated maturity,it shall bear the interest liability.The liability of directors for neglecting to call can be obtained through legal interpretation,so there is no need to set it up.Third,relief rules.The shareholders of the non-term investment period in the external accelerated maturity without internal acceleration shall have the right of first litigation and defense. |
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