Responsibility for the Transferred Equity of Unpaid Contributions
There is a great controversy in the theoretical and practical circles about the responsibility of the transferor and transferee for unpaid equity,especially for unpaid equity that has not expired.Equity transfer results in the change of ownership and the acquisition of share-holder qualification.As for unpaid equity,based on the presumption of shareholder qualifica-tion in the shareholder register,making the transferee the bearer of the primary responsibility for contribution is conducive to the establishment of a recourse chain for contribution.As equity transfer,which is a transaction under commercial organization law,involves the interests of the company and creditors,it cannot be simply governed by the general rules of the contract law.The rule of limited liability may induce shareholders to use equity transfer to evade their respon-sibility for capital contribution,thereby transferring business risk and harming corporate inter-ests and the interests of creditors.The obligation of capital contribution is both statutory and mandatory under commercial organization law.Making the transferor the bearer of supplementa-ry responsibility for the equity that has not due helps to reduce the risk of insufficient capital contribution and judicial costs through the market mechanism.The transferor's supplementary responsibility is a legal responsibility with the sequential nature.Whether the transferor can re-cover after bearing supplementary responsibility should be determined according to the agree-ment between the transferor and the transferee.If there is no such agreement,the transferor cannot recover.As for the transfer of unpaid contributions,some view equity transfer as a trans-fer of debt to the company,which requires the consent of relevant stakeholders such as the com-pany and directors.This method can't achieve the effect of debt transfer with the consent of creditors and increases the difficulty of equity transfer because of its high cost and low efficien-cy.In judicial practice,many verdicts determine the responsibility of the transferor based on its subjective state,such as transferring equity to a transferee with no ability to contribute when the company is insolvent.A subjective state is difficult to prove and easy to evade,leading to high judicial costs.The Company Law provides for the system of accelerated maturity of shareholde-rs'capital contributions,when the conditions of urgent due of undue shareholder contributions are met,the transferee should be required to bear responsibility first.Only when the transferee is unable to bear responsibility can the transferor be required to bear supplementary responsibili-ties in sequence.The transferor shall bear joint and several liability with the transferee for transferred equity that has reached the due date for capital contribution.The transferor's joint and several liability is not conditioned on the loss of right of the transferee.If the company fails to make up for the insufficient capital contribution after the loss of right of the transferee,the transferor should bear the joint and several liability.
NETL
NSTL
万方数据
维普
