Assumption Of Liability Of Transferee For Withdrawal Of Capital Contribution And Transfer Of Equity Interest By Shareholder

For the transfer of equity after the shareholder’s abstraction of capital,if the company’s creditors are not fully satisfied,whether the transferee can be required to bear joint and several supplementary liability together with the shareholder who absconded from the capital,as the Company Law and its judicial interpretation do not mention this issue,only the Judicial Interpretation of the Company Law(Ⅲ),Article18 provides that failure to perform or not fully perform the obligation of capital contribution In this article,on the basis of summarizing the reasons for the decision,sorting out the views of the academic community and referring to the relevant rules of comparative law,we discuss whether "Article 18" can be applied to the abstraction of capital contribution,how to apply "Article 18" and how to apply it.In this paper,we discuss whether and how "Article 18" can be applied,and the difficulties in its application.First of all,there is a big controversy in judicial practice and theoretical circles about whether the abstraction of capital contribution can be applied to "Article 18".In practice,there are four kinds of decisions,namely,directly applicable,not applicable,applicable and certainly applicable,among which most of the decisions affirm the independence of capital evasion and advocate the applicability of the rule,but there are cases of inadequate reasoning or even no reasoning.On the one hand,there is a theoretical dispute between the abstraction of capital and the "failure to perform or fully discharge the obligation of capital contribution",on the other hand,there are different understandings on the theoretical basis of the application of "Article 18" to the abstraction of capital,one believes that the transferee should pay for the dishonest speculation,another believes that the shareholder should pay for the dishonest speculation.The other believes that the "Article 18" should be interpreted in an expansive manner,and that the rights and obligations of the transferees should be interpreted from the perspective of reciprocity,and then there is the claim that the interests of each case should be weighed and analyzed on a case-by-case basis.The author believes that,on the one hand,"failure to perform or fully discharge the obligation of capital contribution" does not include the range of the textual meaning of the abstraction of capital,which is a legal loophole,and can be applied by analogy to "Article 18",on the other hand,the analogous application should be resolved between the abstraction of capital and the "failure to perform or fully discharge the obligation of capital contribution".On the other hand,the analogous application should solve the problem of "similarity" of "failure to perform or fully discharge the obligation of capital contribution",for one thing,the defective equity caused by the two wrongful acts is not the same as the illegal equity can be transferred according to law,for another,the two wrongful acts are the erosion of the company’s capital,from the infringement result Both caused the company’s capital is not sufficient,infringing on the interests of the company’s creditors.Secondly,based on the complexity,concealment and deceitfulness of the abstraction of capital contribution,there is a dilemma in practice to identify the abstraction of capital contribution,especially when the shareholder extracts the company’s assets what kind of situation belongs to the abstraction of capital contribution."Article 12" of the Judicial Interpretation of the Company Law(Ⅲ)establishes the legal standard of capital evasion,that is,after the establishment of the company,the shareholders without legal procedures to withdraw all or part of the capital and damage the rights and interests of the company,but does not further explain the "capital" and "damage the rights and interests of the company "the specific meaning.I think,"capital" should be understood as the shareholders to the company to transfer the property and capital in exchange for the behavior,"damage to the rights and interests of the company" should be understood as the erosion of the company’s capital,and as a substantial recognition of the abstraction of capital standards.Shareholders abstraction of capital caused by the reduction of the company’s capital,does not necessarily lead to a reduction in the company’s assets,and vice versa shareholders of illegal acts caused by the reduction of the company’s assets,does not necessarily constitute abstraction of capital,but should also be "the amount of the reduction of the company’s assets and the sum of surplus and undistributed profits,only the former is greater than the latter case can be found to constitute abstraction of capital.Finally,how to judge whether the transferee knows in the case of abstraction of capital,there is also a big controversy in practice.There are views to protect the creditor’s commercial appearance of trust,the transferee is bound to assume the obligation to contribute,that the transferee good faith shall not be against the creditor,the author believes that the good faith transferee should be sure not to the creditor responsibility.China’s company law rules and the rules of common law countries or regions in the transferee of the knowledge of the issue has some similarity,are known to the transferee or shall know as a prerequisite for liability to creditors.As to the standard of judgment of knowledge,there are views that knowledge is deemed on the ground of unreasonable consideration,while other views hold that the transferee has the obligation to review afterwards.The author believes that since the act of capital evasion is different from other equity defects,which are more complex and hidden,it is more prudent to determine knowledge,and in practice there must be sufficient evidence to prove that the transferee knows.