Research On Capital Contribution Liability Of Unexpired Equity Transfer Under Subscription System

In 2013,the Standing Committee of the National People’s Congress,through an amendment to the Company Law,made a major reform to the capital registration system by replacing the paid-up capital system with a capital subscription system.The relevant authorities only need to register the total amount of registered capital subscribed by the company,and also do not require documents such as capital verification certificates.The subscription system has reduced the cost of company establishment and promoted market transactions and development.However,the current law has no clear provisions on the issue of liability for the transfer of unexpired capital contributions,and no unified academic view has been formed.If it is claimed that the act of subscription is a legally effective commitment,then the transferring shareholder should strictly fulfill the obligation of capital contribution.However,at the same time,many scholars advocate that the term benefits of shareholders under the subscription system are subject to certain conditions,and the rights and interests of creditors should take precedence over the term benefits of shareholders when the company is unable to pay off its debts as they fall due.The scholars who support the joint and several liability of the transferor and the transferee apply an expanded interpretation based on the relevant articles of the current company law.In judicial practice,there are also inconsistent judgments,some of which require the transferring shareholder to bear the responsibility of capital contribution based on Article 13 and Article 18 of the Judicial Interpretation(III)of the Company Law,while some of the judgments indicate that the unexpired equity is not applicable to the defective equity under the Interpretation III of the Company Law and the transferring shareholder is not liable.Therefore,the main issue addressed in this paper is the legal nature of the transfer of shareholders’ unexpired equity under the subscription system and the exploration of the legal basis for the determination of the liability for capital contribution,as well as a review of the existing judgment basis and how to balance the interests of shareholders’ term with the rights and interests of creditors.In this article,the legal nature of the transfer of unexpired equity interests and the obligation to make contributions is determined from the thinking of civil law and commercial law.In particular,it analyzes the applicability of accelerated bankruptcy,non-accelerated bankruptcy and capital reduction procedures,and provides legal support for the determination of the subject and order of liability in the subsequent part.The first part of this paper is the introduction,which focuses on how the problem is presented and its significance and structure.The second part focuses on the judicial practice and theoretical controversy of the responsibility of unexpired equity transfer under the subscription system.Firstly,the existing theoretical doctrines are explained,and through the visual data analysis of the relevant judicial decisions,the trends and directions of the basis of the decisions are summarized from the data results,and the application of the existing basis of the decisions is analyzed to summarize the controversial focus of the decisions in the current judicial practice.The third part is to discuss the legal nature under the subscription system.The purpose is to discuss its legal nature in order to lay the foundation for further research on whether the relevant current laws and regulations are applicable to solve the problem,and to determine the legal basis for determining the responsible subject by analyzing the obligation of capital contribution,the unexpired term of capital contribution and the nature of unexpired equity transfer under the subscription system.The fourth part is to propose a specific construction for the determination of the subject of responsibility for capital contribution after the transfer of unexpired equity interests under the subscription system.The rationality and legality of the liability of different subjects are discussed from the perspectives of civil law and commercial law respectively,and a feasibility analysis of the balance between the interests of creditors and shareholders’ capital contribution is proposed,the basis of creditors’ claims is elaborated,and the order and manner of the subjects liable for capital contribution is finally derived from the draft amendment of the new company law.