Research On The Limitation Of The Rights Of The Defective Shareholders

As the company’s original start-up capital,corporate capital is the cornerstone of the company’s survival and development,and its importance is self-evident.Since the reform of the company law in 2013,China has started to implement the comprehensive subscription system of company capital,canceled the minimum registered capital limit,and replaced government control with company autonomy in the way of company capital supervision.The above measures reduced the institutional cost of company establishment and capital supervision and greatly stimulated the enthusiasm of people to start businesses.However,the problems brought about by the liberalization of corporate capital supervision are endless,and defective capital contribution is a common typical problem.Defective capital contribution will directly lead to the emptiness of capital of company and affect the long-term development of the company;At the shareholder level,defective capital contribution violates the investment agreement between shareholders and amplifies the investment risks of other fully funded shareholders;On the external level,defective capital contribution leads to the weakening of the company capital credit and indirectly damages the realization of creditors’ rights.Although a basic system has been established to regulate the behavior of defective capital contribution.it is deficient in some specific rules,and the implementation effect of some rules is not satisfactory.In order to ensure the fair performance of the capital contribution agreement and the capital enrichment of the company,it may be better to regulate the behavior of defective capital contribution around the rights of shareholders with defective capital contribution.This paper is divided into four parts:The first part is mainly about the theoretical overview of defective capital contribution and restriction of shareholders’ rights,which respectively discusses the connotation,forms and harm of defective capital contribution,the legal status of defective capital contribution shareholders,the function and theoretical basis of the restriction of defective capital contribution shareholders’ rights,and finally aims to clarify the necessity of restricting the rights of defective capital contribution shareholders.The second part mainly focuses on the current situation and main problems of the rights restriction of shareholders with defective capital contribution in China.This part also analyzes the main problems existing in the restriction of shareholders’ rights of defective capital contribution in China in combination with the relevant provisions in Article 34 of the Company Law,Interpretation III of the Company Law and The summary of the ninth.Civil and commercial trial conference.The third part,based on the reality of the restriction of shareholders’ rights in China,investigates and analyzes the relevant systems in Britain,the United States,Germany,Japan and other countries,and draws the following enlightenment: First,under the trend of increasingly comprehensive and refined restrictions on the specific rights of shareholders with defective capital contribution,we can consider linking shareholders’ voting rights with shareholders’ capital contribution to exclude some voting rights of shareholders with defective capital contribution;In the aspect of profit distribution after defective shareholders pay back their capital contribution,the time node of paying back their capital contribution should also be considered in the distribution rules.Second,the system of shareholders’ loss of rights is indispensable.According to the system of shareholders’ loss of rights,depriving the shareholders with defective capital contribution of their shares and reducing their corresponding equity ratio can play a greater deterrent role to the shareholders with defective capital contribution.Third,the applicable conditions for shareholders are increasingly strict.We can also consider to appropriately improve the applicable conditions of expelling shareholder to prevent shareholders from deviating from the original intention of the system and using the shareholder expelling system to attack each other.The fourth part puts forward some suggestions to improve the rights restriction of shareholders with defective capital contribution in China: Firstly,improve the specific rights restriction rules of shareholders with defective capital contribution,and the specific measures include: directly restricting the voting rights of shareholders with defective capital contribution and the right to distribute the remaining property through legal means;Taking "company law restriction+exclusion restriction agreed by all shareholders" as the main mode to restrict defective shareholders;Establish rules for restoring the rights of shareholders with defective capital contributions.Secondly,establish the rules of shareholders’ loss of rights with defective capital contribution,which mainly include the executive body of the loss of rights system with the board of directors as the routine and the board of supervisors and shareholders’ meeting as the supplements;Make it clear that the capital contribution reminder at least includes the defects of capital contribution,the grace period of capital contribution and the legal consequences of refusing to pay back the capital contribution;Standardize the disposal of non-contributed equity,in the order of shareholders’ supplementary contribution,other shareholders or third parties’ subscription of contribution and capital reduction according to law.Thirdly,strictly apply the system of removing shareholders.It should be made clear that the shareholder’s right to remove the name belongs exclusively to the shareholders’ meeting,and it should be included in the statutory terms of reference of the shareholders’ meeting;The unified voting rules for the resolution on the removal of shareholders shall be valid only if the shareholders with more than two thirds of the voting rights pass,and the voting rights of the shareholders to be removed shall be excluded in the voting process;Establish a relief mechanism for expelling shareholders,and the shareholders who have been expelled can file a lawsuit against the effectiveness of the expelling resolution.In the course of the lawsuit,the company should provide evidence to prove that the shareholders have defective capital contribution and comply with the provisions on the reasons for expelling.