Rethinking and Restructuring Corporate Capital Reduction Rules
Registered capital reduction rules in China's Company Law face two dilem-mas.Firstly,due to the limited supply of rules for registered capital reduction,there has been a long-standing phenomenon of different judgments on similar cases in terms of the legal effect of and responsibility for registered capital reduction in judicial practice.The rule system that only stipulates the substantial reduction of registered capital and lacks the formal reduction of regis-tered capital greatly limits the freedom of company operation and makes the rules more rigid.Secondly,the new Company Law has largely lifted the control on companycapital,making the newly revised registered capital reduction rules seem out of place with other capital rules,and inevitably leading to inconsistencies in the system.To deal with the above problems,we should recognize that registered capital reduction has a special functional positioning.It is a means of relief as well as a means of operation.The principle of capital maintenance has different mani-festations in different stages of capital.In the stage of registered capital reduction,although the asset identity is still the same as that in the operation stage,the overall assets of the company are different from the registered capital.Registered capital reduction aims at building a new bal-ance based on the trust in the registered capital.Registered capital reduction rules are designed to match the registered capital with the actual assets of the company,so that the capital credit is once again almost equal to the company credit.To address the above-mentioned problems in registered capital reduction rules by following the above line of thinking,two systematic rule change modes can be adopted:the solvency testing mode and the capital maintenance mode.The new Company Law continues the old logic and chooses an improvement plan for capital ma-intenance,which is reflected in clear provisions on legal responsibilities for illegal capital re-duction,formal capital reduction,and non-proportional capital reduction.Compared with the old law,this is significant progress but still an unfinished transformation.Following the concept in the new Company Law,substantive capital reduction rules should be interpreted strictly,and formal capital reduction rules and non-equal proportion capital reduction rules should be inter-preted broadly in the application of law.In the future,capital reduction rules should,on the basis of continuing to uphold the principle of capital maintenance,fully absorb the advantages of the solvency test mode,and realize the systematic"upgrade"of capital reduction rules by giv-ing the board of directors some decision-making authority on specific capital reduction matters and improving the capital reduction notification mechanism through the solvency statement mechanism.
NETL
NSTL
万方数据
维普
