| After the implementation of the registered share capital subscription system,there has been no unified view on whether the share capital contribution of shareholders in a non-bankruptcy state can accelerate the expiration of the issue;in reality,there is a growing call for shareholders to accelerate the expiration of share capital,as the corresponding number of pertinent litigation cases grow,the relevant legal provisions are yet to be introduced,the Supreme People’s Court in 2019 responded to this in the format of minutes("Jiu Min Ji Yao"),which clearly identifies two circumstances under which accelerated maturity is allowed.The Jiu Min Ji Yao,however,cannot fundamentally solve the problem in that there is still no unified understanding and uniform adjudication in judicial practice,which undermines judicial authority.Therefore,it is necessary to study the issue of the expiration of shareholders’ contributions in a non-bankruptcy state.The capital subscription system gives shareholders the right to choose the amount and time of capital contribution,but the lack of practical measures on how to curb this right has led to the abuse of shareholders’ rights,resulting in many "subscriptions" without "payment".The term of the subscription is too long,resulting in the amount of paid-in capital just a mere number,which potentially damages the interests of the company’s creditors and makes people question the significance of the subscription system.The current Company Law and relevant judicial interpretations do not provide for restrictive measures on the excessive length of the subscription period,nor do they provide that shareholders whose subscription period has not expired can fulfil their capital contribution obligations in advance when the company cannot repay its debts.Although the relevant company law interpretation provides that the creditor can request shareholders in the failed firms to fulfil the capital contribution obligation or the failure to fully fulfil the capital contribution obligation within the scope of the failure to fund,the company cannot be liquidated due to the supplementary liability,but whether the shareholders who have not fulfilled the capital contribution obligation include the shareholders who have not reached the capital contribution period,the law is not clearly stipulated,thus causing different understanding.In addition,the understanding of the "company cannot pay off its debts" is inconsistent with the standard of recognition in judicial practice,the understanding of the requirement to allow shareholders to accelerate their capital contributions as stipulated in the “Jiu Min Ji Yao” is also different,resulting in different court decisions.In order to make the most of the merits of the subscription system,prevent shareholders from evading their capital contribution obligations and balance the interests between shareholders and creditors at the legislative level,this paper suggests the introduction of an amendment to the relevant provisions of the Company Law to allow non-bankruptcy state shareholders’ capital contributions to be accelerated to maturity and give the company the right to first internal If settlement amongst the shareholders.If no call is made or if the shareholder does not pay after a call is made,the creditors can directly request the shareholders to pay the outstanding debts of the company in advance.At the same time,to prevent the emergence of such disputes,the law should also improve the company’s corresponding information disclosure provisions.At the judicial level,it is recommended to unify the criteria for determining "the company cannot pay its debts" and to reasonably allocate the burden of proof so as to ensure the unity of judicial decisions. |
