Research On The Responsibility Between The Transferor And Transferee Of The Unpaid Equity Transfer

After the subscription system reform,the capital system of our company has changed from paid-in system to full subscription system.However,in Article 18 of Judicial Interpretation III of the Company Law,relevant provisions on liability for equity transfer are still formulated under the background of the paid-in system,resulting in a large number of equity transfer disputes.Theoretical circles and practical circles also have different views on liability in equity transfer disputes.There is no unified view in the equity academic circle as to whether the equity transferred before the term of investment is "not performing the investment obligation",and whether the equity withdrawn is "not performing the investment obligation".In the judicial judgment,there are different views on whether the original shareholders bear the responsibility for the investment obligation after the transfer of the equity in the term of investment.Some people think that the original shareholders do not have to bear the transfer responsibility because the shareholders enjoy the term benefits of the equity transfer under the subscription system.Some people think that the investment obligation of the shareholders in the equity transfer is not transferred accordingly,so the shareholders should still bear the responsibility for the capital contribution,and some people think that the transferor and the transferee bear the joint liability.The attitude of the Jiu Min Ji on this issue is that the investment period has not expired,and the shareholders do not support the creditors to ask the shareholders to bear the responsibility because they enjoy the benefits of the period.No matter the theory of joint and several liability,the theory of transferring shareholders and the theory of transferee shareholders can not fully adapt to the need of allocation of capital contribution liability after the transfer of unpaid-in equity under the current capital system.At present,it seems that the transferee shareholders should undoubtedly undertake the contribution obligation after the expiration of the subscription period by replacing the original shareholders with equity.Based on the particularity of equity,the legal nature of the contribution obligation and the perspective of the company’s capital maintenance and creditor protection,the transferee shareholders should be granted a certain period to undertake the supplementary liability.As for the shareholders who harm the interests of the company and creditors by evasively avoiding the liability of capital contribution,requiring them to bear joint and several liability can best balance the interests of all parties.To discuss shareholder’s contribution liability,we must clarify the nature of contribution obligation,the connotation of equity transfer and the current dispute focus.The first part and the second part of this paper focus on the current judicial practice of the unpaid-in equity transfer dispute judgment views and academic discussion and disputes,the third part discusses the theoretical basis of shareholder responsibility,the fourth part under the current legal system puts forward some scholars’ humble opinions.The subscription system gives shareholders and the company a high degree of autonomy in matters of capital contribution,but the independence of corporate personality requires the shareholder’s capital contribution obligation to be legally qualitative.Article 3 and 13 of the Company Law also clarify the legal nature of the shareholder’s capital contribution obligation,that is,the shareholder’s capital contribution obligation is mandatory in the Company law,and the obligation shall not be transferred through the agreement between the transferee and the transferee.It cannot be offset by shareholders having a claim on the company.In addition,equity has different characteristics from general real right and creditor’s right,and its special compatibility of persons and assets makes it free to transfer,but not completely free to transfer.In the case that the investment obligation can be performed after the new shareholders join and the original shareholders withdraw,the equity transfer is free,and the performance of the investment obligation may not be guaranteed,because the equity transfer result is involved,the company has the right to require the non-investment shareholders to perform the investment obligation.The particularity of equity makes it impossible for shareholders to transfer in accordance with the rules of real right or creditor’s right.The subscription of capital contribution by shareholders is not only the contractual relationship between shareholders and shareholders,shareholders and the company,but also the trust interest of creditors.Therefore,the term interest enjoyed by shareholders cannot oppose the normal operation of the company.If the shareholder maliciously transfers the equity to evade the contribution obligation,the company and the creditor are not subject to the relative constraints of the contract.Article 53 of the Company Law(Second Review of the Revised Draft)stipulates that even if the company is not bankrupt,it can require its shareholders to accelerate the expiration of the investment obligation,so as to investigate the original shareholders’ investment liability for the investment obligation.In order to reduce the damage caused by malicious evasion of capital contribution and guarantee the free transfer of equity,the "corporate meaning" can be introduced into the transfer of equity of the company,and the company can be endowed with the ability to examine the transferee’s performance of capital contribution obligation in the change of equity,so that the company can actively accept new shareholders from passively handling the alteration of the list of shareholders,articles of association,commercial registration and other matters.It is beneficial for the company to seize the initiative when the shareholders’ malicious transfer of equity damages the interests of the company.The board of directors shall be responsible for the specific review work,adopt the review mode of "principle recognition,exception denial",strengthen the disclosure system of relevant information of the company’s equity transfer,and clarify the standards for transferring shareholders to assume responsibility.