Developments of the Subscribed Capital System Based on Corporate Autonomy under the New Company Law of China
The revision of the Company Law has been a major institutional innovation in separate civil and commercial laws after the adoption of the Chinese Civil Code.In the reform of the corporate capital system,which began in 2014,China introduced the subscribed capital system to replace the statutory capital system for limited liability companies,and initially com-pleted the return of the capital system to its origin of corporate autonomy.How to implement the subscribed capital system has been the core issue faced by China's company law for a long time.The subscribed capital system has three unique rules that make it different from the statu-tory capital system:the registered capital formation rule,the separation rule,and the non-dis-posal rule.The essence of the registered capital formation rule is that the formation of a compa-ny's capital is independent of the shareholders'performance of contribution obligations when the company is established,and even if the shareholders make no contribution to the company,the formation and the independent existence of the company's registered capital are not affect-ed.The essence of the separation rule is that when a company's capital is formed,shareholders acquire their equity according to their shares of the registered capital,and the distributed equity is not affected by shareholders'performance of contribution obligations.The gist of the non-dis-posal rule is that,at the beginning of a company,the contribution obligations subscribed by shareholders constitute the companies'registered capital and are unconditionally"transformed"into the company's property for liabilities,and shareholders are not allowed to dispose of their obligations,even if the said obligations have not been due,unless the company has the inten-tion to change its registered capital in accordance with law.The new Company Law has effec-tively consolidated the positive results of the subscribed capital system through improvements of the institutional structure,such as the liability for breach of contribution commitment,the re-striction of equity due to delayed or false contribution,the urgent due of undue shareholders'contribution obligations,etc.Moreover,the new Company Law opens up space for the future development of the subscribed capital system,such as the effective introduction of the"class shares"system into public companies.However,due to the limitations of the concept and the normative expression of the capital system,the new Company Law provides for some rules that go beyond the autonomous attributes of the subscribed capital system,which need to be further discussed and reasonably interpreted by the theoretical and practical circles,such as statutory 5 year period for the capital actually contributed,creditors'right to request the urgent due of the undue contribution obligations,and the transfer of undue shareholders'contribution obligations to the assignee of the equity.
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