完全认缴制下的资本充实责任研究
发布时间：2018-09-17 19:25
【摘要】：资本充实责任在我国公司法体系中由来已久,此后,随着法律、司法解释的进一步修订,资本充实责任被进一步完善,并在债权人利益保护方面,发挥着重要的作用。随着公司认缴制改革的推进,2013年《公司法》已确立注册资本的完全认缴制,对资本充实的保障手段也从事前防范转向事中的监控和事后的追究惩戒,从主要依赖公权力的监督转为更多依靠发起人的自治。这种变革为公司的成立降低了门槛,增加了投资方式的灵活性。随之而来的是,公司设立者的出资违约责任和资本充实责任将在债权人利益保护中起着更重要的保障作用。违反出资义务的股东承担出资违约责任,其合理性自不待言。而作为在公司设立过程中无明显过错的非违约发起人,其承担资本充实责任的合理性,一直有不同的声音。尤其对于资本充实责任的责任方式和承担范围,各国立法例也不尽相同。完全认缴制改革的完成,客观上进一步增大非违约股东的资本充实责任,带来一系列问题。为充分发挥认缴制改革的优势,有必要对我国资本充实责任制度进行进一步完善。文章第一部分对资本充实责任的基本内容、法理基础及立法体现进行了梳理。资本充实责任的性质可概括为法定的无过错连带担保责任,内容包括差额填补责任、认购担保责任和出资担保责任。资本充实责任能减少有限责任制度前提下,公司发起人与外部债权人之间利益目标不一致所带来的风险,体现了公平、秩序、效率三方面价值的完美结合。虽然理论上对资本充实责任的合理性一直存在质疑,但不能否认其存在价值,而应基于法律制度的新变化,寻求发起人、其他股东、公司自身以及公司债权人之间新的平衡点。我国的资本充实责任采取了简单的“一刀切”方式,相对于国外先进的立法例,有值得改进的地方。第二部分是关于我国认缴制改革的研究。我国的注册资本模式经历了全额实缴制、分期缴纳制和完全认缴制三个阶段,虽然几经修改,但性质上其实一直维持了法定资本制。认缴制改革改变了以前过多行政干预的做法,更加符合市场经济的要求,有助于灵活运用资金并充分体现公司资本的价值。但该改革也带来了部分公司资本虚高的新问题。第三部分阐述了完全认缴制对资本充实责任的影响。认缴制的灵活性也带来了新风险,非违约发起人,尤其是发起人中的小股东将承担巨大的风险,成为了认缴制改革中最为无辜的受害者。认缴制改革带来新的资本理念和资本缴纳的约束机制,对中国式资本充实责任的合理性带来了新的质疑。未到期出资的加速到期、股权减资、股权转让对资本充实责任的影响也是不得不面临的问题。第四部分对于认缴制下资本充实责任过于沉重的问题提出了一些解决方案,包括对资本充实责任本身进行制度完善,以及建立一些相应的配套措施。参考英美法系及日本立法例,可对资本充实责任的责任形式进行一些有限度的突破,对承担资本充实责任的发起人可以在一定条件下赋予对股权的选择权。另外可以建立实缴资本信息披露制度、公司利润分配限额制度进一步降低资本充实责任的风险。问题的最终解决,恐怕还有赖于社会信用体系的建立。
[Abstract]:The liability for capital enrichment has a long history in the company law system of our country. Since then, with the further amendment of the law and judicial interpretation, the liability for capital enrichment has been further improved and played an important role in protecting the interests of creditors. This change lowers the threshold for the establishment of a company and increases the flexibility of investment methods. Accordingly, the liability for capital default of the founder of a company is increased. The rationality of the shareholders who violate the obligation of capital contribution to bear the liability for breach of contract is self-evident, while the rationality of the non-breach sponsors who have no obvious fault in the process of company establishment has always been different voices. Especially for the mode and scope of responsibility for capital enrichment, there are different legislative regulations in different countries. The completion of the reform of the full subscription system will objectively further increase the responsibility for capital enrichment of non-defaulting shareholders and bring about a series of problems. In order to give full play to the advantages of the reform of subscription system, it is necessary to improve the system of responsibility for capital enrichment in China. The first part of the article combs the basic content, legal basis and legislative embodiment of the liability for capital enrichment. The nature of the liability for capital enrichment can be summarized as statutory liability for joint and several guarantees without fault, including the liability for filling the difference, the liability for subscribing for guarantees and the liability for guaranteeing capital contribution. Under the premise of the system, the risk caused by the inconsistency of the interests between the promoter and the external creditors reflects the perfect combination of the values of fairness, order and efficiency. The second part is about the study of the reform of subscription system in our country. The mode of registered capital in our country has experienced the full amount of substantial. The subscription system reform has changed the previous practice of excessive administrative intervention, more in line with the requirements of the market economy, contributed to the flexible use of funds and fully embodied the value of corporate capital. The third part expounds the influence of the full subscription system on the responsibility of capital enrichment. The flexibility of the subscription system also brings new risks. Non-default sponsors, especially the minority shareholders among the sponsors, will bear enormous risks and become the most innocent victims of the subscription system reform. The new capital concept and the restraint mechanism of capital payment have brought new questions to the rationality of Chinese-style capital enrichment responsibility. This paper puts forward some solutions, including perfecting the system of capital enrichment responsibility itself and establishing some corresponding supporting measures. Referring to the common law system and Japanese legislation, we can make some limited breakthroughs in the form of capital enrichment responsibility, and endow the initiator who undertakes the responsibility of capital enrichment with certain conditions. In addition, the disclosure system of paid-in capital information can be established, and the profit distribution quota system can further reduce the risk of capital enrichment responsibility.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
[Abstract]:The liability for capital enrichment has a long history in the company law system of our country. Since then, with the further amendment of the law and judicial interpretation, the liability for capital enrichment has been further improved and played an important role in protecting the interests of creditors. This change lowers the threshold for the establishment of a company and increases the flexibility of investment methods. Accordingly, the liability for capital default of the founder of a company is increased. The rationality of the shareholders who violate the obligation of capital contribution to bear the liability for breach of contract is self-evident, while the rationality of the non-breach sponsors who have no obvious fault in the process of company establishment has always been different voices. Especially for the mode and scope of responsibility for capital enrichment, there are different legislative regulations in different countries. The completion of the reform of the full subscription system will objectively further increase the responsibility for capital enrichment of non-defaulting shareholders and bring about a series of problems. In order to give full play to the advantages of the reform of subscription system, it is necessary to improve the system of responsibility for capital enrichment in China. The first part of the article combs the basic content, legal basis and legislative embodiment of the liability for capital enrichment. The nature of the liability for capital enrichment can be summarized as statutory liability for joint and several guarantees without fault, including the liability for filling the difference, the liability for subscribing for guarantees and the liability for guaranteeing capital contribution. Under the premise of the system, the risk caused by the inconsistency of the interests between the promoter and the external creditors reflects the perfect combination of the values of fairness, order and efficiency. The second part is about the study of the reform of subscription system in our country. The mode of registered capital in our country has experienced the full amount of substantial. The subscription system reform has changed the previous practice of excessive administrative intervention, more in line with the requirements of the market economy, contributed to the flexible use of funds and fully embodied the value of corporate capital. The third part expounds the influence of the full subscription system on the responsibility of capital enrichment. The flexibility of the subscription system also brings new risks. Non-default sponsors, especially the minority shareholders among the sponsors, will bear enormous risks and become the most innocent victims of the subscription system reform. The new capital concept and the restraint mechanism of capital payment have brought new questions to the rationality of Chinese-style capital enrichment responsibility. This paper puts forward some solutions, including perfecting the system of capital enrichment responsibility itself and establishing some corresponding supporting measures. Referring to the common law system and Japanese legislation, we can make some limited breakthroughs in the form of capital enrichment responsibility, and endow the initiator who undertakes the responsibility of capital enrichment with certain conditions. In addition, the disclosure system of paid-in capital information can be established, and the profit distribution quota system can further reduce the risk of capital enrichment responsibility.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
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